Biles v The Queen - [2019] NSWCCA 52

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Biles v R [2019] NSWCCA 52
Hearing dates: 15 October 2018
Date of orders: 18 March 2019
Decision date: 18 March 2019
Before: Hoeben CJ at CL at [1];
Price J at [2];
Davies J at [229]
Decision:
1. Leave to appeal granted;
2. Appeal against conviction dismissed.

Catchwords: CRIME – appeal against conviction – murder – admissions by appellant – whether verdict unreasonable – whether reasonable hypothesis consistent with innocence of murder available on the evidence – whether miscarriage of justice by failure by trial judge to direct the jury that if the admitted blows were the traumatic cause of death, appellant was to be acquitted of murder – Rule 4 – whether appellant had lost real chance of acquittal
Legislation Cited: Criminal Appeal Rules, r, 4
Cases Cited: ARS v R [2011] NSWCCA 266
Lane v The Queen [2018] HCA 28; (2018) 357 ALR 1
Libke v R (2007) 230 CLR 559; [2007] HCA 30
R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201
R v PL [2009] NSWCCA 256; (2009) 199 A Crim R
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
Sio v R [2015] NSWCCA 42
The Queen v Baden-Clay (2016) 258 CLR 208; [2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Category: Principal judgment
Parties: Darryl Anthony Biles (Appellant)
Regina (Respondent)
Representation:
Counsel:
A Francis (Appellant)
E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/122961
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law – Criminal

Citation:

[2017] NSWSC 525

Date of Decision:

07 March 2017

Before:

Fagan J

File Number(s):

2015/122961

Judgment

HOEBEN CJ at CL: I agree with the analysis and order of Price J.
PRICE J: On 20 February 2017, Darryl Anthony Biles (“the appellant”) was arraigned on an indictment charging him with the murder of Maleeta Louise Hart (“the deceased”) at Brewarrina on 25 April 2015 before Fagan J (“the judge”). There was an alternative charge of manslaughter. The appellant pleaded not guilty to each count.
On 7 March 2017, the jury returned a verdict of guilty to murder. He was sentenced to imprisonment for 24 years with a non-parole period of 18 years.
The appellant seeks leave to appeal against his conviction on the following grounds:

“(1) The verdict is unreasonable.

(2) A miscarriage of justice has been occasioned by the failure of the trial judge to direct the jury to identify which act or acts of the appellant, relied upon by the Crown, caused death, and, whether at such time of the commission of the act or acts the appellant had the intent to cause really serious injury or death.

(3) A miscarriage of justice has been occasioned by the failure of the trial judge to direct the jury that if there was a reasonable possibility that the blows which the appellant admitted constituted the traumatic aspect of the cause of death the appellant was entitled to an acquittal for murder.”

A SUMMARY OF THE CROWN CASE

The Crown case was that on 25 April 2015, the appellant dragged the deceased into a bedroom following a verbal and physical altercation. The Crown contended that the appellant assaulted the deceased over a period of approximately 30 minutes, inflicting multiple forceful blows to her head and jaw with the intention of causing her really serious harm, which substantially caused her death.
The appellant and the deceased had been in a domestic relationship for about two to three years prior to her death. They had been staying at a flat in Byron Street, Brewarrina.
On the day that the deceased received her fatal injuries, they had started drinking together from about 9.30 to 10.00am which included the consumption of spirits mixed with coca cola at the Byron Street flat.

Constable Brown

In evidence, Constable Brown described the events when the appellant was taken into custody. He stated that the appellant continuously asked about the condition of the deceased and threatened to self-harm if she had been declared deceased.
Constable Brown gave evidence that in the past he had numerous dealings with the appellant and that he was of the opinion that the appellant was not affected by alcohol or an illicit drug. The basis of his opinion was:

“[The appellant] was able to fully comprehend my instructions and was not slurring his speech; [he] was clear and able to be fully understood. His eyes were not bloodshot. I did not smell any alcohol on [the appellant]. He was able to stand up without any assistance or swaying. It is my opinion that his motor skills were not affected”. [1]
1. Tcpt, 21 February 2017, 98.

In cross-examination Constable Brown accepted that people can be intoxicated without their gross motor skills or speech being affected. However, he affirmed that he had not observed the appellant display any indicators of intoxication.

Constable MacGee

Constable MacGee and Constable Swift, the police first to respond, arrived outside the premises at about 5.46pm.
Constable MacGee gave evidence that after briefly talking with some of the occupants, he observed the appellant exit the bedroom with blood on his hands, on his forearms just past his wrists, and on his clothes and feet. He ordered the appellant to lie on the ground and together with Constable Swift, handcuffed and arrested him. Constable MacGee accepted that whilst arresting the appellant someone could have entered the bedroom containing the deceased.
Thereafter, Constable MacGee attended to the deceased.
Constable MacGee said that he entered the bedroom from which the appellant had emerged, and saw the deceased lying on her back with arms and legs spread out.
He observed a significant amount of blood on the ground around her, and that a doona and a dark coloured hoodie were covering the deceased’s face, left shoulder and breast. [2] He stated that the deceased had blood all over her face and that her hair was “sodden” with blood. He observed a deep 2cm laceration above her left eyebrow; that her face and cheeks appeared swollen; and that there appeared to be bruising around her eyes and mouth. [3]
2. Tcpt, 21 February 2017, 112.
3. Tcpt, 21 February, 112.
When describing the bedroom, Constable MacGee stated that a mattress which had blood on it was propped up on the southern wall just inside the door of the bedroom, and that there was a lot of blood on the floor with drag marks in it.
He then left the room to use Constable Swift’s radio to call for Ambulance and Fire Brigade assistance.
Constable MacGee said he then returned to the bedroom. He rolled the deceased onto her right side in the recovery position. When her head rolled to the right, he heard an “odd sound” which indicated to him that her skull might have been fractured. He also observed when he rolled her head, that a fair amount of blood either came out of her mouth or from underneath the right side of her head. That blood had pooled underneath the right side of her head and on the ground around her face.
Ambulance officers came and attempted to resuscitate the deceased. Constable MacGee assisted with CPR compressions. He recalled a lot of vomit coming from the deceased’s mouth and that an ambulance officer used a suction device to try to remove the vomit and clear the deceased’s airway.

Sergeant McDevitt

Sergeant McDevitt attended Brewarrina police station at approximately 8.40pm to 9.10pm. She observed the appellant and formed the opinion that he was slightly or moderately intoxicated; but that his ability to talk, understand a conversation, and stand or control his movements was not impaired. She noted that the appellant’s speech was not slurred.

Jodie Moore

Jodie Moore gave evidence that Cheree Jackson had tried to pick a fight with the deceased and then the appellant. Ms Moore stated the deceased refused to fight and that the appellant called her a “granny fucker”. She said the deceased called him one back. She then saw the appellant grab the deceased off the stool in the kitchen by her hair, throw her to the ground, and drag her into the first bedroom.
She stated that the while the appellant and the deceased were in the bedroom the screaming seemed to go for “a long time” until there was a different scream, which she said lasted a long time, was non-stop and was louder. [4] At that time, Ms Moore had made a phone call to the police using Molly’s phone and was standing outside the window of the bedroom which contained the deceased and the appellant.
4. Tcpt, 22 February 2017, 168.
The transcript of the “000” telephone call (exhibit G) recorded that Ms Moore told the operator that the deceased “was just screaming in the room there and now she’s stopped”.
Ms Moore stated that about 20 minutes or half an hour had passed between the time the appellant dragged the deceased into the bedroom and when she called the police.
The evidence established that this call commenced at 5.40.49pm and concluded at 5.44.52pm. Police arrived at the outside of the premises at about 5.46pm.
Ms Moore testified that she went into the bedroom while the police were handcuffing the appellant. She observed the mattress was not flat on the floor, but on some clothes, and that the deceased was covered by blankets, pillows and clothes. Ms Moore said that the position of the deceased was towards the window that she had been standing outside of when on the phone to the police. When describing the deceased’s injuries she said the deceased’s face “was all blood”.
In cross-examination, Ms Moore added that the deceased was screaming all the way into the bedroom and kicking her legs. She disagreed that the last scream could have been vomiting. [5]
5. Tcpt, 22 February 2017, 179.

Brenda Scott

Brenda Scott told the jury that the appellant and the deceased had a verbal argument in the kitchen. After 10 to 20 minutes, she said that Ms Boney told them to stop or she would call the police.
Sometime after that, Ms Scott stated she could still hear them arguing. She then saw the deceased fall to the floor and the appellant drag her into the room by her hair. Ms Scott observed the deceased swearing at the appellant, kicking her legs and swinging her arms around. She said that the appellant closed the door, that after that time she could not hear anything from the bedroom, and that the next thing she remembered was “[the appellant] coming out with all blood on him”. [6]
6. Tcpt, 22 February 2017, 188.

Noeline Murphy

Noeline Murphy gave evidence that at some time in the afternoon, after bingo, she heard the appellant and the deceased arguing outside. She could not hear what they were saying, but she stated that she heard Ms Boney tell them to stop arguing and to leave.
After a while the appellant and the deceased came back inside. Ms Murphy then saw the appellant drag the deceased from the front door in the front room, into the bedroom. She said the deceased resisted but that she didn’t shout or scream at the appellant. As Ms Murphy heard a “click” sound, she stated that the appellant locked the door to the bedroom.
Ms Murphy then saw Ms Boney speaking to the appellant through the bedroom door. She stated that she heard them yelling at each other. In the exchange between Ms Boney and the appellant, she heard the following:

• Ms Boney tell the appellant to leave because she didn’t want them arguing;

• Ms Boney tell the appellant to get out or she would ring the police;

• The appellant yell “we are just going to sleep”; and

• The appellant yell “can’t we have sex first, can’t we have a doodle”. [7]

7. Tcpt, 23 February 2017, 233 – 234.

At that time, Ms Murphy recounted that Annette Biles was going to the bedroom door to check if the appellant and the deceased were all right. She said she and Ms Biles were “worried”, and that Ms Biles called out that she was going to call the police.
When asked whether she could hear anything that might cause Ms Biles to call the police, at first, Ms Murphy stated that she could not hear anything; it was difficult for her to hear; and she had been drinking alcohol. When questioned further, she stated that she heard the deceased “moaning and groaning” for “five to ten minutes” before becoming quiet. She then heard one moan which was louder and sounded different from the other moaning.
Ms Murphy said that Ms Moore then called “000” and walked outside. Not long after, she saw the appellant emerge from the bedroom with blood on his face, shirt, arms, legs and foot. She saw Ms Moore go into the bedroom and then come out screaming to call the police. According to Ms Murphy, the police arrived one minute later.
She looked into the bedroom and saw the mattress standing with blood on it. She saw the deceased, with nothing covering her, lying face down on the floor.
She estimated that the appellant was in the bedroom for 15 – 20 minutes, but could not be sure.
In cross-examination, Ms Murphy confirmed that the appellant dragged the deceased into the bedroom by her shirt. She denied having heard any arguing or noise coming from the bedroom, and said that she couldn’t estimate for how long the appellant was in the room before he came out.

Annette Biles

Annette Biles gave evidence that she heard the appellant and the deceased arguing outside.
She stated that after hearing a bang, she went outside and told the appellant and the deceased to settle down and come inside. Her evidence was that the deceased started to run, and that the appellant grabbed her and pushed her inside the flat. She then heard the deceased call the appellant a “Nanny Lyn licker” and saw the appellant push the deceased in the back causing her to fall to the ground. [8]
8. Tcpt, 23 February 2017, 246.
Ms Biles then saw the appellant grab the deceased by the hair with one hand and drag her into the bedroom. She said the deceased struggled, told the appellant to let go of her hair, and the appellant then hit the deceased.
She did not see any injuries on the deceased at that time.
Ms Biles gave evidence that she heard arguing coming from the bedroom and that she went to the door of the bedroom three times.
The first time she went to the bedroom door, she could hear “banging and arguing and that”. [9] She said at that time she could hear the appellant and deceased swearing at each other, and the deceased screaming at the appellant and telling him to leave her alone. When Ms Biles knocked on the door, the appellant told her that he and the deceased were going to sleep. At that stage Ms Biles said that she was going to call the police.
9. Tcpt, 23 February 2017, 250.
The second time she went to the bedroom door, the appellant opened the door slightly to speak to her, but she could not see into the room. The appellant again said that he and the deceased were going to sleep. Ms Biles stated that she could no longer hear the deceased arguing, and that she could hear the deceased moaning.
On the third occasion, she said she went to the bedroom door because she could still hear the appellant arguing with the deceased, despite having said he was going to go to sleep. She stated the deceased was still not arguing.
As to the details of the moaning she heard from the deceased, Ms Biles stated that she couldn’t remember, but that she heard moaning for “a bit of time … a couple of minutes, seconds”. [10] At one stage she heard a “little moan” and Ms Moore then grabbed the phone off Ms Boney, went outside and called the police.
10. Tcpt, 23 February 2017, 281.
After the police arrived, Ms Biles saw the appellant in the hallway. She agreed that he had blood on his body, clothes and feet. At that time, she was standing in the hallway, and from there she saw Ms Moore in the bedroom “just standing there”. Ms Biles didn’t know what Ms Moore was doing or did. Ms Moore then walked back to the lounge room.

Doreen Boney

Doreen Boney gave evidence that “at some stage [after midday]” the appellant was looking for the deceased, who was out the front of the flat. She said he walked up to the deceased and “jobbed her”, meaning he clenched his right fist and hit her in the face.
Ms Boney then saw the appellant grab the deceased by the arm and bring her back inside the flat. The deceased sat on a stool in the kitchen. The appellant went over to the deceased, hit her in the face with his right fist causing her to fall to the floor, dragged her into the bedroom and closed the door. She did not see what part of the deceased the appellant had grabbed and said that the deceased did not say or do anything.
Once in the bedroom, Ms Boney could hear the deceased “moaning and groaning” and those noises made her worried because it “didn’t sound like they were having sex”. [11] She gave her phone to Ms Moore who called the police.
11. Tcpt, 23 February 2017, 307.
As the police arrived, Ms Boney saw the appellant emerge from the bedroom with blood on his clothes and hands. She said Ms Moore ran from the lounge room to the front bedroom and heard her say “she is dead”.
Ms Boney told the jury she had been “on a binge” for a few days and was intoxicated at the time the deceased died.
In cross-examination, she agreed that she was “very drunk” when the appellant dragged the deceased into the bedroom.

Tamara Boney

Tamara Boney gave evidence that at about 5:00pm the deceased was looking for the appellant. She told the jury that she went out to the front of the flat and saw the deceased there.
Ms Boney stated that she saw the appellant approach from the back of the flat and say to the deceased, "Where the fuck were you?" The deceased told him that she was looking for him. The appellant walked up to the deceased, punched her in the face with a closed fist, and told her to get inside. The deceased started walking up the stairs and tripped. She got up and walked past the laundry at which point the appellant punched her, causing her to fall to the ground in the area near the front bedroom and the kitchen.
Ms Boney’s evidence was that the appellant then grabbed the back of the deceased's hoodie or her hair and dragged her into the front bedroom and shut the door. [12] She stated the deceased didn't do anything other than moan as she was being dragged into the bedroom. [13]
12. Tcpt, 27 February 2017, 406-7.
13. Tcpt, 27 February 2017, 407.

Mitchell Parkinson

Mr Parkinson, paramedic, gave evidence that he arrived at the Byron Street flat at 5.56pm with another ambulance officer.
He observed the deceased lying in a recovery position with extensive amounts of blood pooling under her; on the walls, surrounding linen, and mattress.
The deceased was unresponsive, not breathing and did not have a pulse. Her airway was partially obstructed with vomit and blood products. A small sweep was conducted to clear the airway and a tube was placed down the upper airway to suck out material. Whilst attempting to resuscitate the deceased, further material required suction from her airway.
Mr Parkinson stated the he saw a 2 to 3 cm laceration or cut above the deceased’s left eyebrow, but that he was unable to ascertain whether there were any further injuries to her head because her face was mostly covered in blood.
In cross-examination, Mr Parkinson told the jury that in order to require suction there would have been an extensive amount of contents in the upper airway. He agreed that where there is vomit in the mouth and upper airways, a concern is that vomit had been brought up and aspirated into the lungs.

Constable Swift

Constable Swift gave evidence that after he had arrested the appellant, escorted him and placed him in the rear of the police vehicle, they had a conversation. The appellant told Constable Swift that the deceased “did it to herself”, that “she hit herself in the head with a bottle” and that he “tried to help her”. [14]
14. Tcpt, 24 February 2017, 322.

Constable Swift heard the appellant say to Annette Biles, his mother:

“Mum what have I done? I’m so scattered Mum. It’s the ice. I am so sorry Mum. Please let her be okay. She did it to herself Mum. She hit herself with the bottle Mum. You know she cuts up and shit Mum.” [15]
15. Tcpt, 24 February 2017, 323.

A short time later the appellant was taken to Brewarrina Police Station.

Sergeant Wheatley

Sergeant Wheatley spoke to the appellant at Brewarrina Police Station. He said that in the past he had seen and spoken to the appellant many times, including times where the appellant had been in various stages of intoxication, ranging from slightly to seriously intoxicated. Sergeant Wheatley described the appellant’s eyes to be bloodshot and noted the appellant was repeating himself. However, the appellant’s words were clear, concise and easy to understand. Based on his experience, that indicated the appellant had perhaps been drinking, but on a scale of 1 to 10 “would be less than 5”.
The appellant, having received legal advice, declined to participate in a recorded interview. After that refusal, in the absence of any other person, Sergeant Wheatley had an informal conversation with the appellant, which he recalled was as follows:

“I said, ‘Look the family just want to know what happened to Mellie and you are the only one who knows.’ He said, “I wanted to go to the toilet but Tamara was in there. I went out the back then, then out the front. Mellie came out and said, ‘Where have you been?’ And I said, ‘In the toilet.’ She said, ‘In there with Tamara?’ I said ‘No.’ She went off and we, it should be we had an argument, ‘I punched, slapped her and we went inside. She sat down at the bench indicating to me the kitchen bench. I said, ‘Come in here Mum. Come in here Mum.’ I didn’t grab her by the hair but under the arms indicating arm pit and just under. Once she got into the room she went off. I said, ‘What do you mean?’ He said, ‘You know, head butting the wall. I am not saying anything else.’” [16]
16. Tcpt, 24 February 2017, 332.

Sergeant Wheatley said that the appellant, having received further legal advice, declined to have that exchange recorded.

Forensic evidence

In the early hours of 26 April 2015, Crime Scene Officers Croll (“CSO Croll”) and Payne (“CSO Payne”) conducted a forensic examination of the crime scene.
CSO Croll took photographs of the crime scene and the deceased on site.
Photographs of the deceased depicted a bloody imprint on her stomach.
Photographs of the crime scene depicted blood staining on the floor, walls and ceiling of the bedroom. [17] The blood stains were found to contain the deceased’s DNA. [18]
17. Tcpt, 24 February 2017, 357.
18. Tcpt, 27 February 2017, 435-6.
Photographs of the mattress showed that there appeared to be more blood stains on one end of the mattress which corresponded to the area directly beneath the window.
Photographs of the deceased’s hands were taken in an attempt to document the hairs collected from the deceased’s hands. DSC Tancred gave evidence that the hairs belonged to the deceased. [19]
19. Tcpt, 27 February 2017, 440.
Neither a bottle nor broken glass were found in the bedroom.
At about 3:00am, CSO Croll and CSO Payne obtained a DNA sample from the appellant.
The appellant’s DNA was identified in a palm print and thumb print on one of the walls. [20]
20. Tcpt, 27 February 2017, 434.
CSO Croll took photographs of the appellant’s clothing, hands and feet. She observed obvious blood staining around the appellant’s nails on his hands, feet and on the inside of his right foot. A swab was taken of the blood on the appellant’s foot and his finger.
The DNA of the deceased was identified in blood stains on the front of the singlet and on the front leg of the boxer shorts worn by the appellant; in the blood stain on the side of his right foot; and in the blood stain on the finger-nails of his right hand.
In cross examination, CSO Croll opined that a photograph of a blood spatter on the southern wall and in a distinct line on the floor running from west to east, indicated that the mattress was on the floor during the majority of the incident when blood was coming from the deceased.

John Farrar

At the time of death, the deceased’s blood alcohol was 0.238 grams per 100 millilitres and a sample of her urine contained 0.245 grams of alcohol per 100 millilitres. John Farrar, consultant forensic pharmacologist, gave evidence that as those two results confirm each other, it can be taken that the finding as to her blood alcohol concentration at the time of death was accurate.
Also present in the deceased’s blood was 0.017mg of Delta-9-THC, the major psycho-active component of cannabis. Mr Farrar opined it was “virtually certain” that the deceased would have been cognitively impaired, even if she had been a frequent smoker of cannabis.

Dr Leah Clifton

On 29 April 2015, Dr Leah Clifton, forensic pathologist, conducted a post-mortem examination of the deceased and her autopsy report was tendered (exhibit N) as were two pages of sketches in colour of injuries to the deceased’s head and skull (exhibit O). Included in the report were 16 injuries to the head and neck, and six injuries to the upper limbs of the deceased. One of the injuries was a fractured jaw which Dr Clifton said required a high degree of force.
Dr Clifton told the jury that the cause of the deceased’s death was likely to have been the blunt force head trauma sustained by multiple blows which led to a concussive type mild diffuse traumatic brain injury which in turn led to a temporary loss of consciousness. Dr Clifton stated that in combination with acute alcohol intoxication and an unstable fracture to the right jaw, death occurred as a result of significant respiratory depression and prolonged post-traumatic apnoea (arrest of breathing). [21] Her opinion was that the unstable fracture to the right jaw, in a person with concussion and acute alcohol intoxication, had likely contributed to death as a result of the deceased’s airway patency being compromised while unconscious. [22]
21. Tcpt, 28 February 2017, 490.
22. Tcpt, 27 February 2017, 474; Tcpt, 28 February 2017, 490.
Dr Clifton observed a pattern of injuries to the deceased’s face and head, as well as a fractured right jaw, that were consistent with multiple “punch type” blows. [23]
23. Tcpt, 27 February 2017, 471.
Dr Clifton said that the fractured jaw would require a high degree of force “without a doubt” but the scalp bruising was difficult to say. She said:

A. …There is a lot of bruising so that a lot of trauma to the area and I think in areas like the temporal region on both sides where deep bruising would suggest repeated blows or significantly high cause to damage of oedema tissues as opposed to just causing superficial bruising. [24]
24. Tcpt, 27 February 2017, 471.

When asked as to the nature or force of the blow required to cause the injuries around the left eye, Dr Clifton said:

A. It is difficult to say in the force of blow because of the nature of the tissue around the eye, so we know [blunt] force injury and just by, well because nature of the tissue around the eye, it is very thin tissue bone, any amount of the force can cause that laceration, because of the nature of the tissue around there it does not have to be a particularly high force. It needs to be a force to split the skin but it does not have to be an extremely high force. [25]
25. Tcpt, 27 February 2017, 472.

Dr Clifton said that looking at the entire face and skull and the pattern of injuries, they were “completely inconsistent” with a fall. She said:

A. …The crush to the jaw in particular and the injuries… clustered around the eye are definitely more consistent with inflicted blows, as opposed to falling over, and just the sheer number of injuries, it’s definitely not consistent with a fall. [26]
26. Tcpt, 28 February 2017, 491.

Dr Clifton gave evidence that she thought what had happened was that the deceased had multiple impacts to the head, that caused trauma to the brain “which had resulted in some degree of swelling”. She said:

“The multiple [impacts] to the head has, I think, resulted in brain injury, so we noted swelling to the brain that reflects that.” [27]
27. Tcpt, 28 February 2017, 493.

In cross-examination, she agreed that the injuries to the back of the deceased’s head could have been occasioned by banging against a wall. However, she explained that it would be more usual for the front or the immediate back of the head to show signs of injury, not the top back of the head as in the deceased’s case. She agreed that she could not exclude that the more lateral laceration above the left eye could have been caused by the deceased banging her head.
Dr Clifton referred in exhibit N to microscopic examination of tissues which included the brain. Her description of the examination referred to “mild sponglosis of neutrophil and occasional red neuron change”. Dr Clifton told the jury, that she observed the “occasional red neuron change” which is evidence of the early stage of brain tissue dying and the neurons becoming red in colour. She said that it was evidence of the early stages of microscopic hypoxic change in the brain, and the fact that the hypoxic change was in the early stages, demonstrated that the “event” that caused the brain to be deprived of oxygen occurred shortly before death. She stated that hypoxic changes cease to develop upon death.
Dr Clifton agreed that her observations about the swelling of the deceased’s brain and what she had called early microscopic change were in accordance and consistent with the injuries being caused by multiple punch-type blows to the face and head. She testified that if the deceased had died immediately after the injuries had occurred, there would be no swelling of the brain, so the deceased survived a period of time to allow that swelling to happen, but it was very difficult to tell for how long. [28]
28. Tcpt, 27 February 2017, 472.
Dr Clifton also observed a number of possible “defence type” injuries to the back of the deceased's right hand and wrist, the back of the deceased's left hand, a laceration at the back of the left upper arm above the elbow, and bruising on the back of the left elbows and left arm. [29]
29. Tcpt, 28 February 2017, 519.
Included in the cross-examination of Dr Clifton was the following:

NASH: Dr Clifton, just in respect of the CT scan, I think it was clear from the answers you gave to the Crown Prosecutor but just so I understand, so it is understood, your review of the CT scan and particularly the scan of the brain did not assist you either way with the diagnosis of the cause of brain swelling you observed when you looked at the brain.
A. Yes, that is correct. [30]
30. Tcpt, 28 February 2017, 497.

And further:

Q. Now Dr Clifton I just want to ask you some questions about the brain swelling—
A. Yes

Q. –that you saw. It was the swelling that you saw and only the swelling that you saw that you based your opinion of some traumatic brain injury upon?
A. Yes [31]

31. Tcpt, 28 February 2017, 505.

Dr Allan Cala

Dr Cala agreed with Dr Clifton’s conclusions as to the mechanism of death, and added that in his view, the effects of blood loss from the injuries sustained by the deceased were also a factor in her death. He accepted that blood loss is very difficult to quantify and assess.
Dr Cala’s evidence included the following:

Q. Dr Clifton also said that the unstable fracture of the right side of the mandible, that is the jaw bone, in a person with concussion and acute alcohol intoxication has likely contributed to the death by compromising the airway patency of the deceased while unconscious. Do you agree with that conclusion?
A. Yes, I do, and the reason I agree with that is that if somebody has sustained multiple injuries around the mouth and jaw region, as this woman did, there was associated swelling, and obviously bleeding and swelling associated with any fracture of the face, particularly around the mouth, and that has the effect of, particularly fractures of the jaw and loosening the attachment of the tongue to the jaw and the tongue’s position in the mouth, is very important with respect to the upper airway and in the mouth from injuries, as I would expect in this case, if there is some reduction in the integrity of the facial bones, as in this case, then they are factors that make me believe that they are also important in the case and upper airway [obstruction] would be a significant issue. [32]
32. Tcpt, 28 February 2017, 540.

Dr Cala agreed with Dr Clifton’s opinion that the blunt force head trauma was consistent with multi-punch type blows to the head and face of the deceased.
When asked whether the injuries could have been caused by a fall, Dr Cala opined that the injuries suggested the deceased sustained punch-type blows because both sides of the face were injured and there were asymmetric injuries to the eyes such as what one would see in a boxing match. [33] Dr Cala explained:

“…with a boxing-type injury, such as multiple [blows] [rained] down on the front of the face, that can be asymmetric bruising around the orbital eyes, in particular, as we know happens in boxing matches, where cuts around their eyes, that is one thing. Then there was bruising around and within the mouth, so around the eyes and around the mouth are very characteristic of assault type injuries and also the nose, there can be bleeding from the nose, which is also a sign of possible assault, and going away from the mouth towards the ears. There may be bruises to the cheek region and to the area around the jaw which again can be asymmetric, more on one side than the other side of various sizes, that is the bruises and other injuries are of varying sizes, and then going away from the face, if someone has been assaulted at the top or the back of the head, that may be difficult to see on external examination but on internal examination you may see multiple areas of severe deep bruising, affecting the scalp. There may be splitting of the scalp, I don’t believe there were injuries in this case, bruising to the scalp in various locations, again, both sides of the head.” [34]
33. Tcpt, 28 February 2017, 540.
34. Tcpt, 28 February 2017, 540-1.

When asked in cross-examination, was there anything about the specific injuries that would enable him to say with confidence that it was a punch rather than some other blunt-force trauma, Dr Cala replied:

A. Well the bruising to the face could occur in a number of ways and I won’t go through why I believe it is from, but other possibilities are that she, for example, might have during this time may have fallen and struck her face on the ground or on items of furniture. However, the vast number of injuries to both sides of the face, as I have said, make that in my opinion highly unlikely. I could accept that possibly one injury might have been caused in that way but I don’t accept the totality of being caused by multiple falls, for example. [35]
35. Tcpt, 28 February 2017, 544.

In Dr Cala’s opinion, the multiple blunt force head trauma injuries observed on the deceased were not consistent with the deceased having deliberately banged her head on the floor or wall. [36] In his opinion, a self-inflicted injury would have produced a smaller bruise than the larger areas of bruising and lacerations to the head as were seen on the deceased. [37] In particular, Dr Cala stated that the position of one of the injuries, located lower down at the back of the head where the skull curves around to meet the neck, made it less likely that injury to have been self-inflicted or caused by a fall because it is a protected part of the head. He opined that the injury to that part of the head was possibly caused by a blow, such as with a fist, kick or blunt object. In his experience, self-inflicted injuries to the head tended to be smaller and solitary.
36. Tcpt, 28 February 2017, 541.
37. Tcpt, 28 February 2017, 547.
In relation to the deceased's blood alcohol level, Dr Cala stated that in his experience, the deceased's blood alcohol level was not such that the brain would swell merely as a result of that level of intoxication. [38]
38. Tcpt, 28 February 2017, 542 and 554.

Tendency evidence

The judge made a pre-trial ruling that the Crown could adduce evidence that “would constitute evidence of a tendency on the part of [the appellant] to be roused to violent anger against the deceased for no apparent cause, or for negligible or most trivial cause, and to give effect to that anger by striking her heavily in a manner likely to cause actual physical injury”. [39]
39. Judgment, 23 February 2017, 10.

The incident of 6 August 2013

Constable Gartside gave evidence that on 6 August 2013, the deceased attended Brewarrina Police Station and reported that she had been assaulted by the appellant at his home.
She reported to Constable Gartside that she had been given $200 by the appellant to do some grocery shopping. When she returned home, she gave the appellant $55 change, to which he said “Is that all of it? That’s only a $50 shop, you probably gave the rest of the money to a bloke.” Without warning, the appellant then struck the deceased with a closed fist to the left side of her face near the temple. She fell to the bed. She tried to get up, but the appellant held her down and squeezed her jaw which caused pain to her gums. He then stood up next to the bed and kicked and kneed the left side of her head where he had punched her.

The incident of 17 August 2013

Constable MacGee gave evidence that on 17 August 2013, the deceased attended Brewarrina Police Station and reported that she had been assaulted by the appellant on Tarrion Street near his home.
She stated that earlier in the day she fell asleep next to the appellant who was using an iPad. When she awoke, he was no longer next to her. She went out to the back veranda and could hear his motorbike in the near distance. The appellant returned shortly after and told her he had gone to his brother’s house in Newtown. She asked him questions about where he had been and about being at his brother’s house. The appellant then became angry. The deceased began to get dressed in order to leave at which stage the appellant said, “Shut the door, don’t think you’re going anywhere.” She replied, “The iPad’s out there on the veranda, I’m just gonna go get it.” She walked out of the house and then proceeded towards the back laneway.
As she stepped out of the back gate she heard footsteps behind her. Suspecting it was the appellant, she began to run. The appellant caught up with her as she reached Tarrion Street and punched her to the top right of her head with a closed fist causing her to fall down on her right side. Whilst on the ground, the appellant kicked her once to the rib area and left.

The incident of 19 September 2013

Senior Constable Bennett gave evidence that on 19 September 2013, he attended an address in Newtown and took a statement from the deceased in relation to an assault involving the appellant.
The jury heard that she was sitting on the front steps of her aunt’s home when the appellant walked past and yelled an insulting remark about their son. They had a short argument which escalated when the appellant picked up a nearby iron wrench and tried to hit her in the head but missed. She picked up a shovel to protect herself. The appellant took it off her so that he was holding the wrench and the shovel.
The deceased’s aunt, Esther Gordon, gave evidence that she told the appellant to put the wrench and shovel down. Ms Gordon said that he then started punching the deceased in the face and pulling her hair. He punched her four or five times before Ms Gordon was able to intervene.
The deceased then walked away. The appellant continued to make insulting remarks about their son. When she retorted, he ran after her and chased her into the house. Once inside, he pulled her to the floor and kicked her twice, once in the back and once in the back of the head. Ms Gordon stated that the appellant also punched the deceased before she managed to get him to leave.

The incident of 15 January 2014

Constable Meecham gave evidence that on 15 January 2014, he obtained a video recorded statement from the deceased in relation to an assault on her by the appellant.
The deceased stated that she and the appellant had been arguing. In particular, he was angry that she wouldn’t let their son go with him. Whilst outside the home of her friend Ms Scott, the appellant punched the deceased severely on her left cheek making her nose bleed and causing her to fall to the ground. Whilst on the ground, he kicked her hard in the face three to four times.
Ms Scott gave evidence that she observed the deceased and the appellant arguing. She saw the appellant swing a fist at the deceased which knocked her to the ground. He then kicked the deceased in the face and left.
Constable Meecham testified that whilst speaking with the deceased he observed slight swelling to her left cheekbone area as well as scratches appearing as three red lines. He also observed blood on her shirt and took a photograph of the injuries.

The incident of 22 December 2014

Senior Sergeant McDevitt gave evidence that on 22 December 2014, the deceased attended Brewarrina Police Station and reported an assault on her by the appellant.
The deceased and the appellant were walking together to buy some cannabis from Ms Dot Fox when the appellant tried to start a fight with three boys. When the boys refused to fight, the appellant repeatedly punched the deceased in the head with closed fists. The punches were hard and caused her to fall to the ground. Whilst on the ground, he kicked her once to the side. Eventually, the appellant’s sister and her partner came out of Ms Fox’s house and pulled the appellant off the deceased. He held a bottle up to the deceased’s head and said “Stop singing out loud, if the police hear you I’ll hit you in the head”.

The incident of 23 April 2015

Ms Jackson and Ms Boney gave evidence that on 23 April 2015, Ms Jackson was in the bathroom in the process of fixing a shot of “ice” that she was going to share with the deceased. The appellant asked if he could have some. The deceased “roused” on him because she didn’t like him using ice. He then punched her once in the face.

A SUMMARY OF THE APPELLANT’S CASE

The appellant’s case was that following an argument he pulled the deceased into the bedroom, where they had a short verbal argument after which he lay down on the bed. The appellant contended that after some time, he heard banging which was caused by the deceased self-harming. He then punched the deceased three times, not intending to cause the deceased really serious injury or kill her, after which she fell, hit her head on the wall, became unconscious and could not be revived. The appellant contended the deceased’s brain swelling was caused by acute alcohol intoxication and not by the traumatic head injuries.
The appellant admitted, pursuant to a notice under s 184 of the Evidence Act 1995 (NSW) that an autopsy showed that the deceased had a fractured jaw and, that this fractured jaw was “caused by either a punch by [the appellant] or by [the deceased] falling as a consequence of a punch by [the appellant]”.
Tendency evidence was adduced to show that the deceased had a propensity to self-harm.

The appellant’s testimony

As to the incident on 6 August 2013, the appellant gave evidence that when the deceased returned with groceries which did not look like $200 worth of shopping to him, he went into the bedroom and the deceased followed him. He smacked her on the face with an open hand because it was his money. She left the house, walked up the laneway and fell. He walked outside and told her to go back and pack her stuff. She continued to walk up the laneway and he smacked her again because she did not go back to pack her things. He denied squeezing the deceased’s jaw and kneeing and kicking her in the head.
As to the incident on 17 August 2013, the appellant stated that he told the deceased he was going for a ride on his dirt bike to obtain some cannabis. He went to his brother’s house in Newtown and then somewhere else, but was unable to obtain any. He returned home and told the deceased he could not get any cannabis. She got upset with him so he punched her in the face with a closed fist. She then left by walking out to the laneway and said that she was going to her cousin’s place. He denied chasing her after she left and punching her with a closed fist on the top right of her head. He denied knocking her to the ground and stated he did not hit her more than once.
As to the incident on 19 September 2013, the appellant’s testimony was that the deceased returned from Ms Gordon’s house across the road and told him to pack his things and go back to Brewarrina. When he walked out to his motorbike, the deceased threatened to kill their son. This made him “wild” so he chased her across the road to Ms Gordon’s house. The deceased picked up a shovel and he picked up a wrench to defend himself. Ms Gordon told him to put the wrench down so he did.
He walked back across the road to leave on his motorbike. The deceased called him names and swore at him. He chased her back into Ms Gordon’s house, punched her to the ground and kicked her in the back. Ms Gordon told him to get out, which he did.
He denied swinging a shovel or wrench at the deceased’s head. He denied punching the deceased when they were outside near the gate. He denied seeing any injuries on the deceased, including a bleeding nose. He agreed that he had pleaded guilty to the events related to this day.
As to the incident on 15 January 2014, the appellant stated he had an argument with the deceased because they were downtown with their son and it was hot. He asked her if he could take their son home and she said no, so he walked off. The deceased walked to Ms Scott’s house and he met her there via a different route. He again asked the deceased if he could take their son home to take him out of the heat. The deceased said no and he slapped her in the face with an open hand.
As to the incident on 22 December 2014, the appellant testified that he did not recall any incident that day outside Ms Fox’s house and denied that anything happened.
As to the incident on 2 January 2015, the appellant’s evidence was that he and the deceased had been drinking with Tracey and Cheree Jackson at his dad’s place. His sister-in-law gave him a lift into town and left him on the corner near the shops. He then saw the deceased walk around the corner and he followed her. She sat on the ground and started cutting herself with scissors. The police arrived shortly thereafter. He grabbed the scissors from the deceased and handed them to the police officer.
As to the incident on 23 April 2015, the appellant stated that a couple of days prior to 25 April 2015, Ms Jackson and Ms Boney were preparing to use some ice and asked him if he wanted some. When the deceased found out, she elbowed him and he smacked her with an open hand in the face. His evidence was that she was not injured by the blow and there was no blood around her mouth.
As to the events resulting in the deceased’s death, the appellant gave evidence that when they were at the Byron Street flat, at some time in the afternoon he went to the toilet but Tamara Boney was already there and so he went to the toilet out the back.
When he went back inside someone told him that the deceased was looking for him. He went out the front and the deceased asked him where he had been. He told her he had been to the toilet. He said that the deceased accused him of being in the toilet having sex with Tamara Boney, and so he smacked her. [40]
40. Tcpt, 1 March 2017, 590.
The appellant told the jury that he and the deceased then walked inside together.
He gave evidence that he told the deceased to “come into the room so I can tell you what happened”. He said he then lifted her under the arm, pulled her into the room and shut the door.
The appellant and the deceased were both yelling. He said the deceased was “going off at me being in the toilet with Tamara”, [41] and that he didn’t know what she was doing, but that he heard four or five thumping noises which caused him to get up. He then saw the deceased’s eye bleeding which made him upset. The appellant said he didn’t know why, but he hit the deceased “because she was bleeding from the eye, because she had done something to herself”. [42]
41. Tcpt, 1 March 2017, 591.
42. Tcpt, 1 March 2017, 613-4.
The appellant said he hit her with his right fist on her left cheek, then left fist on her right cheek, followed by a further right fist on her left cheek. He said he was standing near the corner of the room near the door. The blows caused the deceased to fall over backwards, across the room towards the window furthest from the door. She hit the back of her head on the wall and rolled onto the bed. He said that he only realised something was wrong when he called out to her when she was lying on the bed, but she did not move or respond.
He then moved her onto the floor from the bed and put a blanket on the cut on her face. He heard someone call out the police had arrived and he then left the room.
The appellant agreed that he told the police the deceased “did it to herself” by hitting herself with a bottle, even though he did not see that take place. He had assumed she had hit herself with a bottle because they had a bottle of Jim Beam in the bedroom.
The appellant agreed that he told Sergeant Wheatley in October 2015 that the deceased had hit herself “against a cupboard or something”, though he did not see her do so. He explained that he said this because he had been told there was no bottle found in the room, and in his view, she had to be doing something to herself.
He denied causing the bleeding injury to the eye which he saw when he first hit the deceased in the bedroom. He denied kicking the deceased, and he denied stepping on the deceased. He denied intending to cause really serious injury to the deceased when he hit her. He denied intending to kill her.
He stated that he did not move the mattress up against the wall.
As to his intoxication, the appellant gave evidence that when he and the deceased began arguing outside he was “real drunk” and had “been real drunk that day” but did not recall having any difficulty walking.
In cross-examination, he denied pushing the deceased into the house and stated that she did not fall on the steps on the way in. He said that he did not slap or punch her inside the flat, [43] that he did not recall her calling him a “nan licker”, and even if she had, he would not have been offended by it. [44]
43. Tcpt, 1 March 2017, 629.
44. Tcpt, 1 March 2017, 625-6.
In cross-examination, he said it might have looked like he grabbed her by the hair, but he hadn’t, and that the deceased did not resist, shout or argue. [45] He said he told the deceased that he had not been in the toilet with Tamara Boney and then lay down on the bed to go to sleep.
45. Tcpt, 1 March 2017, 629-30.
In cross-examination, he stated the deceased was not moving when he moved her onto the floor and she did not move afterwards. He was unable to explain why he moved her onto the floor.
When cross-examined by the Crown, the following exchange took place:

Q. In the photograph, Mr Biles, see that there, where you are looking at witches hat number 6, all the blood along the floor and another photograph shows the line of blood continues across the floor in what appears to be the line where the mattress was. The Crown is saying the blood is all along the mattress and it seems to be all along the floor where the mattress is. Can you offer any explanation how it is distributed in that manner?
A. No.

Q. Was there anything that occurred in that room that you can refer to that occurred on this night that might explain how Ms Hart's blood seemed to be splattered on every wall and the ceiling?
A. No.

Q. Mr Biles, I suggest to you for the blood to be on every wall and the ceiling that Ms Hart would have to be moving quite quickly all around the room including at times movements upward to get the blood on the ceiling. How do you explain, if that had occurred?
A. I don't know. [46]
46. Tcpt, 1 March 2017, 645.

With respect to his admission regarding the deceased’s fractured jaw, he denied that he had kicked the deceased or punched her in addition to the three punches he had described.

Tahlia Biles

Tahlia Biles, the appellant’s sister, gave evidence that the deceased and the appellant had a good healthy relationship. She told the jury that they argued but she did not accept that he would actually hit the deceased. She said he would not hit the deceased “on purpose” and that “he probably would give her a little slap”, but that the deceased “would also hit him and he would try to get away from her”. [47]
47. Tcpt, 1 March 2017, 658.
She testified, as to the incident on 22 December 2014, that she was at Ms Fox’s home when the appellant and the deceased, who were intoxicated, arrived at midnight.
She told the jury that the appellant wanted her key card so he could withdraw his Centrelink money. The deceased told him to hurry up and when he told her to wait she continued to swear at him. He turned around to run towards the deceased and she fell over. He went to assist her and she started screaming that he was going to hit her. The deceased got up and walked away.
Ms Biles stated that the appellant did not assault the deceased in any way and Mr Fox did not come out of the house to help pull the appellant off the deceased.
In cross-examination, Ms Biles agreed that the appellant was well built and had a strong physique. She also stated that he was easily angered “by anybody”.

Dr Michael Robertson

Dr Michael Robertson, toxicologist, gave evidence that he was given a history of the appellant’s alcohol and cannabis consumption on 25 April 2015.
He calculated that the appellant had consumed approximately 25 standard drinks from around 9.00am to 5.30pm. He was also informed the appellant had consumed six or seven cones of hydroponically grown cannabis between 8.00 and 9.00am but opined that the effects of the drug would have predominantly dissipated by 5.30pm.
Taking into account metabolic rates, Dr Robertson calculated the appellant’s blood alcohol concentration to have been approximately 0.21g/100ml at about 5.30pm on 25 April 2015.
Dr Robertson opined that as the appellant was a seasoned drinker and had consumed alcohol over an extended period of time, those factors lead to tolerance and so “…it is reasonable that an individual may indeed be able to stand on one leg for a period of time and not be overly impacted by the presence of alcohol in his system”. [48]
48. Tcpt, 2 March 2017, 721.
Dr Robertson agreed with Mr Farrer’s opinion regarding the slurring of speech in people with a blood alcohol concentration above 0.1g/100mL, however, he stated that people who consume alcohol regularly have a better ability to control muscle/motor co-ordination at even higher blood alcohol concentrations such as 0.2 and 0.3g/100mL and higher levels, and are able to speak without slurring.
Dr Robertson agreed with Mr Farrer’s evidence that adrenaline would not reverse the effects of alcohol but would compensate for it to some extent.

Professor Duflou

Professor Duflou, a forensic pathologist, was called on behalf of the appellant. He had prepared a report dated 26 October 2015, which concluded that the cause of death was undetermined. His evidence included the following:

Q. And in this case, are there any other possibly causes of brain swelling to your view?
A. I think the major issue here is did the deceased in fact have an episode of hypoxia or an inability to breathe for whatever reason, and hypoxia due to whatever reason, can cause brain swelling, and as the hypoxia gets worse, the brain swelling can get worse as well. Causes for hypoxia in this case can include to use a colloquialism the deceased [swallowing] her tongue while unconscious and obstructing her airway in that way or it could include her having inhaled things in her airway and those could include blood and they could include gastric contents. So in other words, that there has been vomiting or regurgitation and then inhalation and I note that was present at autopsy. There was no indication of blood in the lungs at autopsy. [49]
49. Tcpt, 1 March 2017, 670-1.

And further:

Q. And in a case such as this, particularly with a person that has got high concentration of alcohol, can you say whether or not it is, it could be inconsistent with concussion or--
A. Well, the level of alcohol in this case confuses matters further. It is certainly a significant level of alcohol. It has certainly been described as causing death in the medical literature at that level. Personally, I think it is probably at the low end for causing death, although if that was the only feature here, I would certainly consider it as quite a reasonable cause of death. Added to that, you have got the problem that alcohol can induce vomiting. Alcohol decreases your ability to prevent inhalation of vomit into your lungs and then alcohol on its own can cause unconsciousness as well. [50]
50. Tcpt, 1 March 2017, 671.

And further:

“I agree with the autopsy pathologists that the deceased has sustained crania-facial trauma, and most likely a significant number of the injuries described were the result of blows to the face and head, likely with a fist or similar. However, I do not exclude the reasonable possibility that the deceased could have fallen and struck her head [badly] while significantly intoxicated. If this is the case, it is not [possible] to state which of those injuries, alone or in combination, resulted in unconsciousness, if any did." [51]
51. Tcpt, 1 March 2017, 672-3.

Professor Duflou stated that although some of the injuries sustained by the deceased could have been caused by a fall, he was not suggesting that all of the injuries on the deceased's face could have been caused by a single fall. His evidence was that it was unlikely that even multiple falls would have resulted in the injuries sustained by the deceased.
Professor Duflou was of the opinion that concussion may have occurred and the deceased may or may not have been unconscious for a period of time. He opined that it was “speculative at best” that the deceased’s brain injury was caused by blows or falls. He said “there may be evidence but the evidence for that is lacking”. [52]
52. Tcpt, 2 March 2017, 673.
The following exchange took place between the judge and Professor Duflou on the issue of swelling of the brain:

His Honour:
…

Q. Can you tell us from the point of trauma to the head, capable of causing swelling of the brain, how long would it take before the brain would swell, in other words, if there is a severe strike or series of strikes to head sufficiently severe to cause the brain to swell by reason of the impact, how long would it take for this swelling to commence?
A. Your Honour, that is variable. It can occur within a short period of time, probably minutes. It is often delayed by significantly more than that. It generally becomes apparent, I think, within an hour or so but it can be delayed indefinitely as well. It might never appear.

Q. And it may only be minutes before some degree of swelling could occur?
A. Yes.

Q. What contributes to where along that range the swelling takes place, is it a question of the degree of severity to the trauma?
A. Not necessarily, your Honour. The brain does not necessarily respond in a linear fashion, if you like. So the less the impact or impacts the less likely there is likely to be damage necessarily. So it is difficult to say in an individual case, but I think it is probably fair to say that the more severe the impact, the more severe the brain injury would be in general. [53]
53. Tcpt, 2 March 2017, 674.

Professor Duflou told the jury that he did not know how the deceased died. He said:

“…You have got the alcohol level as well to consider. Did that on its own cause death? I think unlikely, but it’s a possibility, but I emphasise that unlikely. Certainly it could have contributed, it could have caused vomiting. It could have caused the deceased to pass out from excessive alcohol consumption. It may have acted together with the head injury in some way or other. But again I don’t know how and to what extent.

So in a situation like that I must say to me the safest best cause of death is to say that it is undetermined or unascertained from post-mortem”. [54]
54. Tcpt, 2 March 2017, 678.

When asked by the judge:

Q. But if you find, if you concluded, or if the jury should conclude first, that those injuries to the eyes, the jaw, the back of the head, the top of the head and so on and so on, were caused by blows, then the question would be whether those blows in combination with other things that were operating, as you have described, may have caused death?

Professor Duflou replied:

A. I think that’s a fair comment yes. [55]
55. Tcpt, 2 March 2017, 679.

When cross-examined about the blood spatter on the walls and ceiling, Professor Duflou testified that it could have come about by some rapid movement of the deceased’s head given that her hair was blood sodden. On this topic his evidence included:

Q. The other mechanism that was possible the cause of the blood spatter that you have described, [the deceased] was already bleeding, she was standing near, for example, the wardrobe and there was a further strike by a hit to the area where the blood was collecting on her face. Could that explain also the blood spatter?
A. Could, could explain some of it yes. [56]
56.

In re-examination, Professor Duflou’s evidence included the following:

NASH

Q. And this does not arise from your Honour’s question but his Honour asked you before the break a long question about, I think that included the various factors that possibly were present here or not including the concussion and the blunt force trauma and that your answer was that it is more likely than not that that had a significant role to play in the death?
A. Yes.

Q. Is that a fair summary?
A. I think that is a fair summary.

Q. Can you be any more certain than that?
A. I can't really. The problem here is that the evidence for death due to the head injury, well, there is just no autopsy evidence of damage to the brain causing death and the bruising, lacerations, and even the relatively minor brain swelling in this case, are not of their own, expected to cause death.

HIS HONOUR

Q. The question was not concerned here with causes on their own, this is a criminal trial. The question for the jury is whether the head trauma, whatever caused it, was a significant, substantial cause of death, "a", indefinite article, not the sole. You are asked to consider taking all the results of the autopsy, the condition of the person's head, sustained the head trauma, and the
diagrams that reflect the extent of the medical description of analysis, and the question was whether, in your view, allowing for all other possibilities, you would say whether or not that head trauma was a substantial, a substantial or significant cause?
A. Well, your Honour, as I have indicated, more likely than not. [57]

Tendency evidence

57.

The incident of 2 January 2015

Senior Sergeant McDevitt gave evidence that she took a statement from the deceased on 2 January 2015 at Brewarrina Police Station.
The deceased had stated that each Friday she withdrew her weekly Centrelink money from the bank which was about $700. She would give her Nan money for groceries and would have about $400 remaining. However, each Friday, the appellant waited for her to leave the bank so he could take all her money. On this occasion, the appellant had spent all her money and the deceased noticed that he had spent the last $25 on two bottles of wine. She was sitting outside Ms Trish Frail’s house when the appellant arrived and began yelling, “What you doing? You coming back up here so we can drink beers?” She became stressed and to avoid being with him she began to cut herself with a pair of scissors.
Earlier that same evening, Senior Sergeant McDevitt and Senior Constable Jackson responded to a “000” call relating to someone hurting themselves with scissors. They found the deceased in an extremely distressed state and saw her scratching her face with her hands and banging the front of her head on the roadway more than once but not more than five times. The appellant was standing nearby holding a pair of scissors and said “I stopped her”. The deceased said words to the effect the appellant had taken all her money, that she had no money to look after her son and that he would “bash” her. She stated that she wanted to kill herself. As a result, the deceased was taken to hospital in an ambulance for a mental health assessment.
During cross-examination she gave evidence that the deceased did not strike her head against the roadway with great force, and that she did not recall the deceased violently strike or hit the back of her head on the roadway.

Ground 1: The verdict is unreasonable

Argument

The appellant submitted that the Crown did not adduce any evidence to exclude the alternative available inference, that the appellant had punched the deceased three times in quick succession (the admitted blows) which caused swelling to the brain within seconds or minutes, unconsciousness and a respiratory depression substantially contributing to death after a few minutes. The appellant contended this was a reasonable hypothesis consistent with innocence of murder that was available on the evidence.
The appellant pointed to the evidence of the forensic pathologists, that a possible explanation for the cause of death was a concussive type brain injury from an external assault, and argued that relevant to the issue of intent was the opinion of Professor Duflou, that the period over which swelling might occur was not relative to the severity of the trauma was relevant to the issue of intent. On that basis, in combination with no evidence of a severe brain injury, the appellant submitted that the alternative inference was available on the evidence and giving full weight to the primacy of the jury, the verdict is unreasonable.
The Crown submitted that in 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”. [58]
58. The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47].
The Crown argued that the appellant incorrectly focused on only some portions of the evidence of the forensic pathologists, and contended that the forensic pathologists called by the Crown were of a much firmer opinion that repeated blunt force trauma was the cause of the deceased’s facial injuries and that a sustained assault was a cause of death.
It was submitted that the Crown was not required to prove that the admitted three blows were not the cause of the concussive type brain injury, but that the Crown had to prove that the appellant struck the deceased more times than the admitted three blows. The Crown submitted that on the evidence it was open to the jury to be satisfied that there was a sustained assault on the deceased with intent to inflict grievous bodily harm which caused her death and that the appellant’s conviction for murder was not unreasonable.
The Crown pointed out that what was said by the appellant in this Court to be an alternative available inference, that the appellant’s admitted blows substantially contributed to the deceased’s death, was not raised at trial.

Consideration

In Sio v R,[59] Leeming JA summarised the legal principles applicable to an unreasonable verdict ground of appeal. His Honour said at [40]:

“This proposed ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question on appeal is whether ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’: M v The Queen [1994] HCA 63; 181 CLR 487 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at [31]-[34]. This being a question of fact, it is necessary for the Court to decide by making its own independent assessment of the whole of the evidence: M v The Queen at [63]; SKA v The Queen at [14] and [20], while having regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and which has had the benefit of having seen and heard the witnesses: M v the Queen at [7]; SKA v The Queen at [13].”

59. [2015] NSWCCA 42.

In Libke v R,[60] Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised (at 596-597) that the question is whether the jury must, as distinct from might, have entertained a reasonable doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
60. (2007) 230 CLR 559; [2007] HCA 30.
In The Queen v Baden-Clay,[61] the High Court emphasised at [65] that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step “…not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”. The Court said at [66]:

“With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (Footnotes omitted.)
61. (2016) 258 CLR 208; [2016] HCA 35.

The Crown case against the appellant on murder was circumstantial and the onus was on the Crown to exclude all reasonable hypotheses consistent with innocence. However, all of the evidence was to be considered by the jury in combination and not in an isolated way. In The Queen v Hillier,[62] the majority (Gummow, Hayne and Crennan JJ) said at [46]:

“The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that 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.” (Footnotes omitted.)
62. (2007) 228 CLR 618; [2007] HCA 13.

An admitted fact by the appellant was that he accepted that the deceased’s fractured jaw “was caused either by a punch by [him] or by [the deceased] falling as a consequence of the punch by [him]”. In his evidence, he told the jury that he punched the deceased three times; with his right fist on her left cheek, then left fist on her right cheek, followed by a further right fist on her left cheek. He denied kicking the deceased or striking her in addition to the three punches he described. He denied intending to kill her or to cause her really serious injury.
Notwithstanding these admissions by the appellant of violent conduct towards the deceased, the Crown at trial did not found the case of murder merely upon the admitted blows. Rather, it was the Crown case that the appellant had inflicted multiple blows to the deceased’s head which had substantially caused her death.
The appellant’s trial counsel did not raise during the trial or in his closing address, the alternative hypothesis put to this Court which the appellant submits is consistent with innocence on the charge of murder. In his closing address, the appellant’s trial counsel put to the jury that they could not be satisfied beyond reasonable doubt that the injuries the appellant inflicted that he admitted responsibility for or the injuries that the jury might ultimately find the appellant was responsible for, caused the deceased’s death.
The appellant’s trial counsel further submitted to the jury that they could not exclude as a reasonable possibility that the swelling to the deceased’s brain was related to alcohol and had not been substantially contributed to by the external injury to the head.
Other matters put to the jury by the appellant’s trial counsel were that they could not be satisfied, that there was an ongoing sustained attack in the bedroom; that a doubt attached to the mechanism of the critical injuries, there existing the possibility of self-harm; that the Crown could not prove the requisite intent; and could not negative the impact of the appellant’s intoxication on the question of intent.
At no stage in the trial was it submitted that there was an alternative available inference that the admitted blows inflicted in quick succession caused swelling to the brain which had substantially contributed to the deceased’s death and that this was a reasonable hypothesis consistent with innocence on the charge of murder.
At no stage, was the appellant’s trial conducted on an alternative basis that the Crown had failed to exclude as a reasonable possibility that the admitted blows were sufficient to bring about death.
In any event, the focus of the appellant’s submissions in this Court, on the opinions expressed by the pathologists, which included that they were unable to opine as to which blows caused the deceased’s traumatic brain injury, ignores other evidence in the trial which supports the Crown’s case that the appellant struck the deceased more than three times, with the requisite intention and the appellant’s blows were a substantial cause of the deceased death.
It was open to the jury to have regard to the opinions of Dr Clifton and Dr Cala that the pattern of injuries to the deceased’s face and head, as well as a fractured right jaw were consistent with multiple “punch type” blows; that the multiple impacts to the head had caused swelling to the brain and had been a cause of the deceased’s death; to Dr Clifton’s evidence that the fractured jaw required a high degree of force; and to the number and severity of the injuries depicted in exhibit “O”.
It was open to the jury to exclude as a reasonable possibility that the brain swelling was due to alcohol and that her death was contributed to by alcohol ingestion which acted independently of the appellant’s blows.
Furthermore, there was the evidence of the appellant’s violence towards the deceased before he dragged her into the bedroom, Ms Moore’s account of the deceased’s screaming in the bedroom and the evidence of Annette Biles of what she heard.
The jury was entitled to have regard to the evidence of the blood stains on the mattress, to the blood spatter on the floor, walls and ceiling of the bedroom, to the tendency evidence adduced by the Crown, and to the appellant’s differing accounts of what had occurred that he gave to Constable Swift, Sergeant Wheatley and to his mother.
It was open to the jury to reject the appellant’s evidence that he struck the deceased no more than three times and without the requisite intent. In my view, the evidence is compelling that there was a sustained attack which was the substantial cause of death. Although the hypothesis put to this Court was not placed before the jury, I do not have difficulty concluding that on the whole of the evidence the Crown has excluded as a reasonable possibility that the admitted blows were a substantial cause of death.
Having made my own independent assessment of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant conducted a sustained assault upon the deceased during which he struck her multiple times, that he did so with the intention to cause grievous bodily harm and the appellant’s conduct was a substantial and operating cause of her death.
It follows that Ground 1 of the appeal should be dismissed.

Ground 2: A miscarriage of justice has been occasioned by the failure of the trial judge to direct the jury to identify which act or acts of the appellant, relied upon by the Crown, caused death, and, whether at such time of the commission of the act or acts the appellant had the intent to cause really serious injury or death.

Ground 3: A miscarriage of justice has been occasioned by the failure of the trial judge to direct the jury that if there was a reasonable possibility that the blows which the appellant admitted constituted the traumatic aspect of the cause of death the appellant was entitled to an acquittal for murder

Argument

These grounds of appeal can be conveniently dealt with together.
The appellant complained that at no-point were the jury directed, orally or in writing that if the admitted blows were the traumatic cause of death the appellant was entitled to an acquittal of murder.
The appellant submitted that whilst the jury was instructed that they could not return a finding of guilt unless satisfied that the appellant caused all the substantial injuries, and that the appellant held out the relevant intent at the time of their infliction, “the direction’s elided a critical issue, namely, the jury had to firstly satisfy themselves as to which act or acts of the appellant constituted the traumatic cause of death”. [63]
63. Appellant’s Written Submissions at [57].
The appellant argued that the mischief in the directions is that the jury were invited to reason that the appellant was guilty of murdering the deceased if they were satisfied he caused all the significant injuries by multiple blows; the blows were a substantial cause of her death; and the blows were inflicted with the relevant intent. However, if the appellant caused all the injuries but the jury possessed a doubt as to whether the admitted blows comprised the traumatic cause of death, the appellant was entitled to an acquittal.
The appellant contended that directing the jury of the requirement to be satisfied that the appellant caused all the injuries did not overcome the mischief “in eliding focus upon which act/s or blows were proven beyond a reasonable doubt to have constituted the cause of death”. [64] The argument was that the failure of the judge to direct the jury to the critical issue has given rise to a miscarriage of justice and the appellant has been deprived of a fair chance of an acquittal for murder.
64. Appellant’s Written Submissions at [60].
The appellant submitted that the problem with the written directions was that the words “multiple blows” became consistent with the appellant’s evidence of the admitted three blows and the judge never explained to the jury that finding the admitted three blows or less to be the cause of the significant injuries would amount to an acquittal as to murder.

Consideration

The legal principle that the Crown is not required to identify the precise act or acts causing death in order to prove murder or manslaughter is well-known. [65] During oral submissions the appellant’s counsel did not challenge this principle nor was it submitted that this was a case such as Lane v The Queen [66] where there are two identifiable acts that may have caused death and a jury must be unanimously satisfied of the particular act and the accompanying intention.
65. See for example: R v PL [2009] NSWCCA 256 at [46] – [51]; (2009) 199 A Crim R; Royall v The Queen (1991) 172 CLR 378, 404 – 405; [1991] HCA 27; R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201.
66. [2018] HCA 28; (2018) 357 ALR 1.

The appellant, however, argued that the significance of the Crown’s concession as to the admitted blows was not identified by the trial judge. As has been explained at [187] - [190] above, the question raised by the appellant in this Court as to the reasonable possibility of the admitted blows comprising the traumatic cause of death was not an issue, let alone a “critical issue” at trial.
In these circumstances, it is neither surprising that the jury was not directed that if they found that it was a reasonable possibility that the admitted blows were a substantial cause of death that the appellant was to be acquitted of murder nor was a re-direction on this issue sought by the appellant’s trial counsel.
It is evident that the appellant’s trial counsel was alive to the issues in the trial when he sought re-directions on such issues as “lies”, Jodie Moore’s evidence, on “self-harm” and on the appellant’s intention.
The appellant’s complaints about the inadequacies of the judge’s directions are to be assessed against the manner in which the appellant’s case was conducted and the real issues in the trial.
During the summing up, the judge identified the issues in the trial for the jury clearly and referred to the competing cases fairly and accurately. The members of the jury were provided with a summing up document Questions to be answered in order to arrive at a verdict (“Question Trail”) to which his Honour spoke.
The second question in the Question Trail addressed the deliberate acts in the following way:

“Has the Crown proved beyond reasonable doubt that during the late afternoon of 25 April 2015, shortly before [the deceased] died, [the appellant] inflicted multiple blows to her head which caused all or substantially all of the head (including facial) injuries found at autopsy?

("Blows" here includes the use of fists, kicking, causing [the deceased’s] head to strike a wall or the floor and any combination of some or all of these means).

• If yes, go to question 3
• If no, find [the appellant] not guilty.”

In his oral directions about this element of the offence of murder, his Honour said:

“Now this question is directed to the element, which must be proved beyond reasonable doubt by the Crown in order to sustain the charge of murder, that [the appellant] committed some voluntary or willed act towards the deceased.

The next part of it is that that caused her death and that's in question 3. But for the moment the first thing is, did he inflict upon her something, did he by his own will, voluntarily and deliberately, do something to her and that is a distinct issue in this case because [the appellant] said he did, in relative terms, very little in the bedroom. He says he punched her three times, right, left, right. The first two at least he said went to the cheek area. Either the second or the third blow knocked her across the room and she hit the wall, but he says that's all that has happened.

The Crown does not attempt to found the case of murder upon merely those admitted blows. The Crown has put to you a case that he inflicted multiple blows upon her. The Crown has never been able to specify exactly what type; fists, kicking, holding her head and banging it on the floor, hasn't been able [to] specify, and that is why when this question refers to multiple blows, the blows we are talking about are not blows that the Crown has specified, number 1, a right upper cut, number 2, banging her head in this way or anything like that. The Crown has specified the blows as being what it alleges were the many blows which caused those facial and head injuries which you see. So in this question it is whether [the appellant] inflicted multiple blows which caused all or substantially all of the head injuries.

Now the word ‘substantially’ all is in here as a practical common sense qualification. If you thought it was possible that some small number of the items of damage to [the deceased’s] face or head had been caused by her at some stage in this involvement in the bedroom falling, well that wouldn't make a difference to the Crown's case. The Crown is saying substantially all of this was done by [the appellant]. You have to be satisfied of that beyond reasonable doubt in order to return a verdict of guilty of murder.” [67] (Emphasis added.)
67. Tcpt, 6 March 2017, 9 - 11.

His Honour then turned to the third question which addressed the element of causation in the following way:

“Has the Crown proved beyond reasonable doubt that the blows inflicted by [the appellant] to [the deceased’s] head during the late afternoon of 25 April 2015 substantially or significantly contributed to causing her death?

• If yes, go to question 4.
• If no, find [the appellant] not guilty.” (Emphasis added.)

His Honour’s oral directions to the jury on this element included the following:

“So this is the element, the next element that in order to prove the charge of murder beyond reasonable doubt the Crown must have satisfied you to that standard, that the blows to the head, the trauma they caused were a significant, substantial or significant contributing cause.

That is the point I made earlier when discussing the medical evidence. I won't repeat what I have said at the moment. I will come back to that when I remind you of the various possible causations that were canvassed in the evidence of the three medical experts and I will give you some guidance about how you may approach that to resolve these things, I emphasise it is not a scientific inquiry. You are applying your own common sense, taking into account the possible means of causation and working it out in all the surrounding circumstances. I give emphasis to that proposition by reminding you of the Crown Prosecutor's submission on this.

The Crown argued to you that you have a young woman of 18 years who went into that bedroom with, so far as the evidence shows, no mark of any significance on her face, no problem with her breathing, not vomiting through the alcohol she had taken. Walking, talking and standing, having argued with [the appellant] a little bit earlier. And after a relatively brief interval in the bedroom, I will refer to the evidence about it later, but it seems to have been no more than 20 to 30 minutes, she is dead and her head is in the state you see in the photographs and documented by the pathologists.

The Crown simply says if you are satisfied as people bringing your common sense, which is what juries are asked to do, bringing your common sense to bear on this, that that trauma has been a substantial cause, albeit other things may also have operated.

Now that, that is an example of how you take into account surrounding circumstances, a broader picture than just the medical evidence and the medical possibilities. Of course against the Crown's argument, the defence has said to you well notwithstanding that you apply your common sense, he doesn't ask you to do otherwise, but he says having regard to these other medical possibilities, the experts have presented to you, that you would be left with a reasonable doubt that the trauma to head may not have been a substantial cause. He says that on the basis of that evidence, everything in the case, it is a reasonable possibility that she died of other causes of the types referred to by the pathologists, that essentially death was contributed to by her alcohol ingestion and which he says you should find as a reasonable possibility acted independently, or irrespective, of the blows that were administered to her. (Emphasis added.)

At a later stage of the oral directions, the judge referred at length to the evidence of the relevant evidence including that of forensic pathologists and the appellant.
The fourth question addressed the element of the requisite intention:

“Has the Crown proved beyond reasonable doubt that [the appellant] inflicted the blows which significantly contributed to causing [the deceased’s] death with either:

(a) an intent to kill her or
(b) an intent to cause her grievous bodily harm (that is really serious harm)?

• If yes to either (a) or (b), find [the appellant] guilty of murder.
• If no to both (a) and (b), go to question 5.”

In his oral directions, the judge told the jury:

“So if you were to find answers "yes" to each of 1, 2 and 3, then you would move on to 4. That would mean by the time you had got to question 4, [the deceased] did die this day, that [the appellant] inflicted those multiple blows to her that caused all that damage you see, and that that head trauma was a significant or substantial cause of the death, then the next thing you would ask is [Question] 4.

Has the Crown proved beyond reasonable doubt that the accused inflicted the blows which significantly contributed to causing [the deceased’s] death with either (a) an intent to kill her or (b), an intent to cause her grievous bodily harm, that is really serious harm." (Emphasis added.)

The fifth question addressed the alternative verdict of manslaughter:

“Has the Crown proved beyond reasonable doubt that

(a) the infliction by [the appellant] of the blows which significantly contributed to causing [the deceased’s] death carried an appreciable risk of serious injury to her and

(b) a reasonable person in [the appellant’s] position would have realised that by these blows [the deceased] was exposed to an appreciable risk of serious injury.

• If yes to both (a) and (b) find [the appellant] not guilty of murder but guilty of manslaughter
• If no to either (a) or (b) find [the appellant] not guilty.”

His Honour’s oral directions on manslaughter included the following:

“Now, this is what is known in law as manslaughter by unlawful and dangerous act. If you get to the point of answering question 5, it is because you have already answered yes unanimously to 1, 2 and 3, but no to 4, and if you have answered yes to 1, 2 and 3 then, of course, you have already decided that he inflicted these multiple heavy blows upon [the deceased] that killed her.

Now, to inflict multiple heavy blows on a person is an unlawful act. So you would have already found this an unlawful act, a serious assault…” (Emphasis added.)

By his oral and written directions, the judge made it clear to the jury that they would only consider causation, intention and the alternative verdict of manslaughter if they had found beyond reasonable doubt that a sustained assault by the appellant upon the deceased, as alleged by the Crown had occurred.
The appellant’s submission that a problem with the Question Trail was that the words “multiple blows” became consistent with the appellant’s admitted blows has, in my opinion, no merit.
Rule 4 of the Criminal Appeal Rules applies to Grounds 2 and 3 as no objection was taken at trial to what is asserted to be the judge’s omissions to direct the jury. Rule 4 provides:

Exclusion of certain matters as grounds for appeal etc

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

In ARS v R [2011] NSWCCA 266, Bathurst CJ (with whom James and Johnson JJ agreed) at [147] - [148] dealt with the scope of r 4. The Chief Justice said:

“[147] The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]):

‘There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted ...’

[148] Subsequent cases have established that the following matters are important in considering the operation of r 4:

The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].

The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].

A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done:Germakian v R [2007] NSWCCA 373;(2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].

An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].”

As I have indicated at [197] above, the Crown case that there was a sustained attack upon the deceased and it was the appellant’s multiple blows that caused trauma to the brain and death was compelling. Against that background and the appellant’s primary case that his conduct was confined to punching the deceased no more than three times and the jury could not be satisfied beyond reasonable doubt that his conduct (as found by the jury) was a substantial cause of death, the omitted direction as to the reasonable possibility of the admitted blows constituting the traumatic cause of death is to be considered.
Having answered yes to Question 3 in the Question Trail, it was inevitable that the jury would accept the opinions of Dr Clifton and Dr Cala; that it was the multiple impacts to the deceased’s head which resulted in the swelling to the brain. The judge’s omission to give the suggested direction would have no effect on the jury’s verdict and a miscarriage of justice has not been caused. The appellant has not lost a real chance (or a chance fairly open) of being acquitted of murder.
Accordingly, I would refuse leave to rely on Grounds 2 and 3 of the appeal.

Orders

The orders I propose are:

(i) Leave to appeal granted;

(ii) Appeal against conviction dismissed.

DAVIES J: In relation to grounds 2 and 3, I agree with Price J and his reasons for rejecting these grounds of appeal.
In relation to ground 1, on my own assessment of the evidence, I consider that it was open to the jury to reject the appellant’s evidence that he struck the deceased no more than three times. The evidence of the state of the bedroom, particularly concerning the blood spatter, the evidence of the women present at the house, and the appellant’s unsatisfactory evidence of what occurred, all provide support for the jury’s rejection of the appellant’s evidence. It was further open to the jury to accept the evidence of the pathologists called by the Crown as to the cause of death. I otherwise agree with Price J’s analysis of the evidence.

**********

Endnotes

Decision last updated: 18 March 2019

Medium Neutral Citation:	Biles v R [2019] NSWCCA 52
Hearing dates:	15 October 2018
Date of orders:	18 March 2019
Decision date:	18 March 2019
Before:	Hoeben CJ at CL at [1]; Price J at [2]; Davies J at [229]
Decision:	1. Leave to appeal granted; 2. Appeal against conviction dismissed.
Catchwords:	CRIME – appeal against conviction – murder – admissions by appellant – whether verdict unreasonable – whether reasonable hypothesis consistent with innocence of murder available on the evidence – whether miscarriage of justice by failure by trial judge to direct the jury that if the admitted blows were the traumatic cause of death, appellant was to be acquitted of murder – Rule 4 – whether appellant had lost real chance of acquittal
Legislation Cited:	Criminal Appeal Rules, r, 4
Cases Cited:	ARS v R [2011] NSWCCA 266 Lane v The Queen [2018] HCA 28; (2018) 357 ALR 1 Libke v R (2007) 230 CLR 559; [2007] HCA 30 R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 R v PL [2009] NSWCCA 256; (2009) 199 A Crim R Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 Sio v R [2015] NSWCCA 42 The Queen v Baden-Clay (2016) 258 CLR 208; [2016] HCA 35 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Category:	Principal judgment
Parties:	Darryl Anthony Biles (Appellant) Regina (Respondent)
Representation:	Counsel: A Francis (Appellant) E Balodis (Respondent) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/122961
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law – Criminal Citation: [2017] NSWSC 525 Date of Decision: 07 March 2017 Before: Fagan J File Number(s): 2015/122961