Finnegan v Tasmania
[2020] TASCCA 5
•11 May 2020
[2020] TASCCA 5
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Finnegan v Tasmania [2020] TASCCA 5
PARTIES: FINNEGAN, Anthony Colin
v
STATE OF TASMANIA
FILE NO: 2452/2018
DELIVERED ON: 11 May 2020
DELIVERED AT: Hobart
HEARING DATES: 6 March, 13 December 2019, 3 March 2020
JUDGMENT OF: Blow CJ, Pearce J, Marshall AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal dismissed – Appellant found guilty of murder – No significant possibility an innocent person convicted – Verdict open.
Criminal Code (Tas), s 402(1).
M v The Queen (1994) 181 CLR 487; MFA v The Queen [2002] HCA 53, 213 CLR 606; Pell v The Queen [2020] HCA 12, 94 ALJR 394, applied.
Aust Digest Criminal Law [3476]
Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Murder – Unintentional murder – Sentence of 21 years with non-parole period of 14 years not manifestly excessive.
Criminal Code (Tas), s 157(1)(c).
Dobson v Tasmania [2017] TASCCA 19, considered.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant (6 March 2019): In person
Appellant (13 December 2019, 3 March 2020) M Truong
Respondent: J Hartnett
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASCCA 5
Number of paragraphs: 86
Serial No 5/2020
File No 2452/2018
ANTHONY COLIN FINNEGAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
PEARCE J
MARSHALL AJ
11 May 2020
Order of the Court (3 March 2020)
Appeal dismissed.
Serial No 5/2020
File No 2452/2018
ANTHONY COLIN FINNEGAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
11 May 2020
The appellant, Anthony Finnegan, appealed against his conviction on a charge of murder, and against his sentence of 21 years' imprisonment with a non-parole period of 14 years. On 3 March 2020 this Court dismissed his appeal, reserving its reasons for publication at a later date. My reasons for concluding that the appeal should be dismissed were the same as the reasons now stated by Pearce J.
File No 2452/2018
ANTHONY COLIN FINNEGAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
11 May 2020
The appeal
The appellant was found guilty by a jury of the murder of Peter Fitzgerald. He was sentenced by Brett J on 4 September 2018 to imprisonment for 21 years from 1 December 2016. His Honour ordered that the appellant not be eligible for parole until having served 14 years of that sentence.
This appeal concerns both his conviction and sentence. The appeal first came before this Court on 6 March 2019. At that time the appellant was unrepresented. He argued that his conviction was "unreasonable and unsupported". After that part of the appeal was argued and the Court reserved its decision, the appellant obtained legal representation. Leave was granted to add a further ground of appeal that the sentence was manifestly excessive. As will be explained, application was made to add further grounds of the appeal against conviction. Further submissions in support of the existing and proposed grounds of appeal against conviction, and the appeal against sentence, were heard on 13 December 2019 and 3 March 2020.
The challenges to the appellant's conviction and sentence are to be rejected. At the conclusion of the hearing on 3 March 2020 I joined in an order dismissing the appeal. These are my reasons.
Unsafe and unsatisfactory
The appellant contends that the verdict of the jury was "unreasonable and unsupported." The ground finds statutory expression in this State in the Criminal Code, s 402(1), which provides that the Court "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence." As was recently re-stated in Pell v The Queen [2020] HCA 12, 94 ALJR 394 at [43], the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493. The court must ask itself:
"whether it 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".
As explained in M, and restated in MFA v The Queen [2002] HCA 53, 213 CLR 606, and in Pell, the question does not depend on whether, as a matter of law, there is evidence to support the verdict, but rather whether the evidence required the jury, acting rationally, to have entertained a doubt as to the appellant's guilt. An appellate court must conduct an independent review of the evidence, but making full allowance for advantages enjoyed by the jury, including from having seen and heard the witnesses. Given the central role of the jury in the administration of criminal justice, this Court is not to substitute trial by an appeal court for trial by jury: R v Baden-Clay [2016] HCA 35, 258 CLR 308 at [65]-[66].
On 13 December 2019 the appellant's counsel sought leave to add further grounds of appeal. One proposed ground sought to challenge the verdict on the basis that the appellant's trial counsel should have, but did not, obtain psychiatric evidence. That part of the application was immediately refused for reasons given at that time. One proposed further ground asserts a miscarriage of justice on the basis that the jury "was blind sighted [sic] by the fact that there were [sic] so much evidence showing and proving the guilt of the other witnesses". Another refers to a "perversion of justice" on the basis, in substance, that the evidence proved that the "other witnesses", were not credible and "played a part in the crime". A third proposed ground asserts that the appellant could not have committed the crime in the manner alleged by the prosecution because he was physically incapable of doing so because of the ongoing effects of a broken leg, and because of his intoxication "by both alcohol and drugs".
All of the proposed new grounds add nothing to the existing ground alleging that the verdict was unreasonable and not supported by the evidence. The factual matters raised by the proposed grounds are properly considered as aspects of the evidence on which the verdict of the jury was based.
The prosecution case
The deceased, Peter Fitzgerald, died in the early hours of the morning on Thursday, 1 December 2016 in the unit in which he lived in Kerry Court, Summerhill. During the previous evening he had been in the company of the appellant and another man, Cameron Tattersall. It was the prosecution case that, after a drunken argument, the appellant killed Mr Fitzgerald by, after knocking him to the floor in the laundry of the unit, kicking and stomping on his head. The prosecution contention was that the injuries inflicted by the appellant caused Mr Fitzgerald's death.
Mr Tattersall and Mr Fitzgerald were friends. They had known each other for three or four years. Mr Tattersall lived nearby in a unit in Morris Street, Prospect, about 10 to 15 minutes' walk away. He frequently spent time at Mr Fitzgerald's unit. The appellant had known both Mr Fitzgerald and Mr Tattersall for more than two years. He had been staying with Mr Tattersall at Morris Street after having returned to Tasmania from Victoria a few weeks earlier.
In 2016, Mr Fitzgerald was employed as a deckhand on a commercial vessel based in Stanley, on the north-west coast of Tasmania. He returned from sea on 30 November 2016, was paid his wages, a sum of just over $2,000, and drove back to Launceston. During the course of that afternoon he picked the appellant up from Mr Tattersall's house and they went together to Kerry Court with a carton of beer. Later they phoned Mr Tattersall and invited him to the unit. He walked there from his home and arrived at about 8 pm. The three men then spent the rest of the evening together. Between about 9 and 10 pm, Mr Fitzgerald and the appellant left the unit in a taxi to buy more alcohol. They travelled into central Launceston and visited a bottle shop before returning to the unit. Mr Fitzgerald and the appellant kept drinking and were both intoxicated. Mr Fitzgerald prepared and served food after they returned from the bottle shop. The appellant and Mr Tattersall ate, but Mr Fitzgerald did not.
Mr Fitzgerald's unit was relatively small. The kitchen was separated from a living area by a bench, with a door to a laundry adjacent to the kitchen. There was carpet on the floor throughout the area including in the kitchen and laundry. Mr Tattersall's evidence was that, some time after Mr Fitzgerald and the appellant returned from the bottle shop, an argument developed between them. According to Mr Tattersall, he was sitting on a couch in the living area and the others were in the kitchen. He said that the two men kept arguing until Mr Fitzgerald struck the appellant to the jaw at least twice. The appellant responded. Mr Tattersall described the critical events to the jury in the following terms:
"Then Anthony just snapped and just hit Fitzy a couple of times. Then hit him in the chest. Then he hit him in the chest again, then Fitzy falls to the ground, um, in the laundry area. Then, um, Anthony went into the laundry and put his hand on the washing machine and his other hand – I think he got to put it on the – I'm not a hundred percent sure where he put his other hand – and then kicked him in the head a couple of times and then stomped him in the head a couple of times as well – yeah."
Mr Tattersall told the jury that when the appellant kicked and stomped on Mr Fitzgerald's head, Mr Fitzgerald was on the ground in the laundry and "not moving." He said that although he could not see everything which happened, there were "about three kicks and about four stomps on the head". He said he told the appellant to "stop hitting Fitzy", but "he just went crazy". Mr Tattersall's evidence was that the appellant, after having kicked and stomped on Mr Fitzgerald, placed a plate of food on the floor near his head. The appellant then took a suitcase from within the unit and loaded it with meat from the freezer section of the refrigerator. Mr Tattersall checked Mr Fitzgerald and observed that he was still breathing. He and the appellant then left and walked back to Mr Tattersall's home, wheeling the stolen frozen food in the suitcase.
Before leaving the unit, and then again on the way back to Morris Street, the appellant phoned another man, Shaun Watkins. The first such phone call was made at 12.25 am. Mr Watkins was a long-term friend of the appellant and also knew Mr Tattersall. Mr Watkins gave evidence at the trial. He told the jury that he knew of Mr Fitzgerald, but did not know him. When the appellant phoned, Mr Watkins was with his long-term girlfriend, Rebecca Lee, at the house in which she lived at Lucy Place. They were in bed. As a result of things which were said to Mr Watkins on the phone by both the appellant and by Cameron Tattersall, he dressed and walked to Mr Tattersall's house, about five minutes away. There he met the appellant and Mr Tattersall. Mr Tattersall and Mr Watkins then walked to Mr Fitzgerald's unit. The appellant did not go with them. Mr Tattersall's evidence was that when he went inside he saw that Mr Fitzgerald was not breathing. He saw Mr Watkins check to see if Mr Fitzgerald was breathing.
Mr Watkins told the jury that, by the time they arrived at Mr Fitzgerald's unit, Mr Fitzgerald was dead. His evidence was that he checked Mr Fitzgerald, that he was not breathing and had no pulse. According to Mr Watkins, Mr Fitzgerald was lying on his side, felt "cold" and his "face was swollen and all the front of his face was a bloody mess." He said a plate of food was on the floor beside Mr Fitzgerald's head. Mr Watkins then left the unit, returned to Lucy Place and then to Mr Tattersall's unit in Morris Street.
Mr Tattersall phoned "000" from Mr Fitzgerald's unit at 1.27 am. At 1.33 am an ambulance was allocated to attend. In the meantime, Mr Tattersall remained on the phone to the "000" operator, who talked Mr Tattersall through the CPR procedure which Mr Tattersall was undertaking. On the recording of the call he can be heard pleading for Mr Fitzgerald to "come back". He performed mouth to mouth resuscitation and, the evidence suggested, can be heard vomiting. The paramedics arrived in the ambulance at 1.43 am. One of the paramedics gave evidence that when she went inside, a man, which the evidence proved was Mr Tattersall, was standing or kneeling over another person "lying supine on their back on the floor". Mr Tattersall was asking for help. The paramedic saw that Mr Fitzgerald had suffered severe head injuries. She described a large amount of blood around his head and in and around his face, and what appeared to her to be "brain matter" was evident. She checked him for signs of life. His airway was assessed. His pupils were checked. There was no breathing or circulation. An electrocardiograph was placed on him but, over a period of 30 seconds, it revealed no electrical activity at all in the heart. Mr Fitzgerald's body was cool peripherally although still warm centrally. She formed the opinion that no means of resuscitation was possible and advised those present that Mr Fitzgerald was dead.
The appellant's evidence at trial
The appellant gave evidence at trial. He denied killing Mr Fitzgerald. His case was that it could not be established beyond reasonable doubt that the force he admitted applying to Mr Fitzgerald caused his death, and that it could not be excluded, as a reasonable possibility, that Mr Fitzgerald's death resulted from some other cause: Mr Fitzgerald's intoxication, force applied by Mr Tattersall before he and the appellant left the unit, or something Mr Tattersall or Mr Watkins did when they returned to the unit without the appellant.
The appellant did not dispute much of the prosecution evidence about the background circumstances. He agreed that he had known both Mr Tattersall and Mr Fitzgerald for something over two years and that he was a long-term friend of Mr Watkins. He had been staying with Mr Tattersall since having returned to Tasmania in October 2016. The appellant agreed that on 30 November 2016 Mr Fitzgerald picked him up during the afternoon and they, with Mr Tattersall, spent the evening drinking and socialising at Kerry Court. Mr Watkins had also been invited to join them but did not come. During the evening he travelled in a taxi with Mr Fitzgerald to a bottle shop for more alcohol.
The appellant gave evidence that, after he and Mr Fitzgerald returned to the unit from the bottle shop, there was an argument between Mr Fitzgerald and Mr Tattersall about Mr Fitzgerald's girlfriend, Rachel. He said that they started to wrestle and he came between them to break it up. The wrestling resumed but he again broke it up. As he walked away he felt a blow to the back of his head and assumed that he had been struck by Mr Fitzgerald. He said he turned to see Mr Fitzgerald coming towards him and he, with his right hand, punched Mr Fitzgerald to the side of his head. He said he "gave him all that I had". According to the appellant's account, after the punch, Mr Fitzgerald fell into Mr Tattersall and then those two men wrestled their way into the laundry, where they both went to the ground. His examination-in-chief continued in these terms:
"When you were in the laundry, where are they?.....Both on the ground.
Okay. Are they kneeling, laying?.....No, yeah, they're laying, both on their – they're both on their backs, yeah.
Yeah. Describe it, draw a picture for the jurors?.....They've gone into the laundry and they've fallen – they're on their backs, so Peter's on his back and Cameron's to the side of him, leaning over towards his right, sort of half over Peter.
Yep?.....So they're both laying on their backs, but Cameron's half over Peter, yeah.
Okay. That's as you see it?.....As I see it, yeah.
Okay. What did you do, if anything?.....Well Cameron started – I could see Cameron elbowing Peter in – in the head, like, back into the head and I've come in and try – tryin' to get Cameron off Peter."
The appellant said that he tried to "get Cameron off Peter". In the course of doing so he unintentionally trod on Mr Fitzgerald. He denied having deliberately kicked Mr Fitzgerald. He went on to say that he saw Mr Tattersall "standing on Peter", but he could not say whether he did so intentionally or "just in the course of the struggle". He said that when Mr Tattersall "got up off [Mr Fitzgerald]" he pulled Mr Tattersall away, and out of the laundry, leaving Mr Fitzgerald, still conscious, on the floor. He said he phoned Mr Watkins "to tell him what had just happened". At one point he gave the phone to Mr Tattersall who, he said, he heard to be laughing while speaking with Mr Watkins.
He agreed that food was then stolen from Mr Fitzgerald's refrigerator, but claimed that Mr Tattersall was primarily responsible for the theft. He left the unit with Mr Tattersall and with a suitcase full of meat. Before doing so he checked Mr Fitzgerald. He told the jury that Mr Fitzgerald was "definitely alive" because he was "snoring". The appellant took the plate from the kitchen bench containing the meal which had been served for Mr Fitzgerald, but not eaten, and put it on the laundry floor beside his head "for when he woke up". He claimed, in cross-examination, that when he left the unit he had not seen anyone kick or stomp on Mr Fitzgerald's head.
After leaving the unit, the appellant walked to Mr Tattersall's home and did not return.
Evidence of guilt
Upon the jury's verdict of guilty, the appellant was sentenced on the basis of the trial judge's finding that that the appellant's liability for murder arose by operation of the second limb of s 157(1)(c) of the Criminal Code, that is, that he killed Mr Fitzgerald by an unlawful act which he ought to have known to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm. There was a considerable body of evidence which strongly supported the pathway to guilt identified by the trial judge. There could be no reasonable doubt that, if the appellant was found by the jury to have committed the acts described by Mr Tattersall, the acts were unlawful and the appellant, at the very least, ought to have known that they were likely to cause Mr Fitzgerald's death. No argument has been advanced by the appellant that the acts were justified by self-defence, or that the jury, if properly satisfied that the appellant killed Mr Fitzgerald in that way, ought to have entertained a reasonable doubt that he had the mental element which made him guilty of murder.
The appellant's challenge to his conviction is directed to the jury's finding that he killed Mr Fitzgerald. The Code, s 153, required the prosecution to prove beyond reasonable doubt that Mr Fitzgerald died as a result of an act or acts of the appellant, which were directly and immediately connected with Mr Fitzgerald's death and but for which he would not have died when he did. By s 154(e), even if the appellant's acts were not the immediate, or not the sole, cause of death, he was deemed to have killed Mr Fitzgerald where his act or omission caused death, even if the act or omission would not have caused death unless it had been accompanied by the acts or omissions of the deceased, or some other person or persons. It was thus necessary for the jury to consider what act or acts the appellant committed, and whether those acts caused Mr Fitzgerald's death in accordance with s 153 and s 154.
In my assessment, there was very strong evidence that the appellant inflicted the injuries suffered by Mr Fitzgerald in the manner alleged by the prosecution. The only direct accounts of what occurred when Mr Tattersall and the appellant were together at the unit came from those two men. When all of the evidence is considered, it was open to the jury, with all the advantages it enjoyed, to accept the truthfulness and reliability of Mr Tattersall's account and to reject the appellant's account. Mr Tattersall's evidence, if accepted, was direct, and highly probative, evidence of the appellant's guilt. In very important respects, Mr Tattersall's account was supported by other direct and circumstantial evidence.
The cause of death
The evidence of both Mr Tattersall and the appellant was that Mr Fitzgerald was still alive when they left him in the unit. Mr Tattersall checked and found him to be still breathing. The appellant said Mr Fitzgerald was making a sound like snoring. However, as will be explained, Mr Fitzgerald had suffered extremely serious facial and head injuries. There could be no reasonable doubt that the acts which caused those injuries were directly and immediately connected with his death and, but for the acts which caused those injuries, Mr Fitzgerald would not have died when he did. The evidence of the nature and extent of the injuries was also relevant to the jury's consideration of the nature of the acts which caused them. The evidence of the injuries to Mr Fitzgerald's head and neck strongly supported Mr Tattersall's evidence about the location, number and force of the blows inflicted by the appellant.
A post mortem examination conducted on 2 December 2016 by Dr Christopher Lawrence, a forensic pathologist, disclosed that Mr Fitzgerald suffered multiple fractures of the facial bones, and extensive bruising. There were very large bruises to both cheeks with a pattern strongly suggestive of having been made by shoe prints. The back of the right ear was severely torn. The left eyebrow was torn and there was a lot of bruising on the tongue. There were other bruises to the head and neck. Dr Lawrence identified five areas of facial injury on external examination which, in his opinion, required at least five separate applications of force. A CT scan reported deep bruising underlying the bruising observable on external examination, as well as extensive bruising under the galea – the membrane over the skull. There were fractures of both eye sockets, bilateral fractures of the nasal bones, the left and right cheek bones, the front and side walls of the sinus on the left side, the left upper jaw and the bone at the back of the bony palette of the face. The injuries were, in Dr Lawrence's opinion, consistent with the application of significant force, for example by stomping. During the internal examination of Mr Fitzgerald's body, Dr Lawrence discovered a lot of material in the lungs which appeared to be inhaled blood and stomach contents. The partial collapse of the inferior vena cava, the major vein from the lower half of the body, suggested, in Dr Lawrence's words, "a fair bit of blood loss". According to Dr Lawrence, blood loss is a common major complication of serious facial injury. Dr Lawrence found a large amount of blood in Mr Fitzgerald's mouth, nose and upper airway. Dr Lawrence told the jury that significant blood loss associated with facial fracturing risks compromise of airways. He explained:
"Now if you're conscious, you can cough the blood up and protect your airway, but if you're unconscious, there is a risk that the blood will run into the lungs and you can effectively, block the airway and effectively, be unable to breathe because of the large amount of blood in the up - airways."
Dr Lawrence also found that Mr Fitzgerald's brain was swollen, particularly on the left hand side. Other injuries to the brain were found. The first was a gliding contusion, an acceleration/deceleration injury to the brain membrane. The other was microscopic haemorrhagic damage to the corpus callosum, a conduit between the two sides of the brain. In Dr Lawrence's opinion, such injuries would generally result in loss of consciousness. There was also bleeding between the brain and the skull over the right frontal lobe.
Dr Lawrence's investigations also disclosed that, when Mr Fitzgerald died, he had a very high blood alcohol content: 0.269 grams per 100 millilitres of blood.
In Dr Lawrence's opinion Mr Fitzgerald died as a result of hypoxia, lack of oxygen to the brain. He expressed his conclusion in these terms:
"The probable cause of death is a combination of head injuries and aspiration from the – that's inhalation of both blood and gastric contents from the head and facial injuries. It's likely the deceased was unconscious which would cause aspiration of blood and gastric contents by preventing him from protecting his airway. There is a high level of alcohol in the blood which would also depress his level of consciousness, but is probably not sufficiently high to directly account for his death."
In Dr Lawrence's opinion, the injuries he described were approximately contemporaneous with Mr Fitzgerald's death. When cross-examined, he was asked why, in the written report of his examination, he appeared to have stated two possible causes of death, one being the combined effects of head injuries and aspiration from head and facial injuries, and the second being acute alcohol intoxication. He answered:
"… there are several things that have combined together to kill him. The first of them is the head injury. The second one is the facial injuries and the fact that he's unconscious and has inhaled blood. Now the alcohol, in of itself, at .269 in an experienced drinker probably wouldn't kill him, but, if you've got a head injury and you've got a facial injury, the effects of an alcohol of that level, would probably make you more inclined to inhale the blood, so that's why it's there."
There is no reason that the jury should have experienced a reasonable doubt about the correctness of Dr Lawrence's opinion, that is, that Mr Fitzgerald died as a combined result of the head injuries and the inhalation of blood and gastric contents which entered his airways as a result of the injuries. Unconsciousness arising from the injuries made hypoxia more likely. In light of the nature and extent of the physical injury revealed by the post mortem examination, the jury was correct to exclude as a reasonable possibility that Mr Fitzgerald died independently of those physical injuries and their consequences. There was evidence that depression of the level of consciousness from the level of the alcohol in Mr Fitzgerald's blood also made hypoxia more likely. However, the suggestion that he would have died as a result of his consumption of alcohol independently of the injuries he suffered is, in the circumstances, highly implausible, and the jury was correct to exclude that scenario as a reasonable possibility. A toxicologist employed by Forensic Science Services Tasmania, Miriam Grist, gave evidence that research had shown it possible that persons with a blood alcohol level of 0.2 or higher and who are sleeping or unconscious may die if airways become obstructed. However, in light of all of the evidence of Mr Fitzgerald's death, and the nature and extent of his facial and brain injuries, the only conclusion to which the jury could reasonably have come was that but for those injuries Mr Fitzgerald would not have died when he did, and that the acts which caused those injuries were directly and immediately connected with his death.
Forensic evidence
The police arrested the appellant in Mr Tattersall's unit in Morris Street. His right hand was significantly swollen. The appellant admitted when giving evidence that the swelling was as a result of having struck Mr Fitzgerald. He said that his hand was "broken" as a result of the blow he struck with it.
Mr Fitzgerald's body was photographed in the location in which it was found when the police arrived. On 1 December 2016 forensic scientists examined the premises at Kerry Court, Lucy Place and Morris Street. The principal forensic crime scene examiner was Anna Flonta. Ms Flonta's examination at Kerry Court commenced before Mr Fitzgerald's body was removed. She examined his body and the surrounding area, made observations and measurements and took samples for later analysis. Mr Fitzgerald was lying face up on the floor in the doorway between the kitchen and laundry, with his head and upper body in the laundry and the lower half of his body in the kitchen. Blood had accumulated under his head resulting in a 300 mm x 200 mm saturating stain on the carpet. There was also solid material on the carpet next to his head which the evidence suggested was vomit. His face, head and shoulders were covered with blood and there was vomit on his face near his right temple. Some of his clothing, particularly his T-shirt, was soaked in blood. There were what appeared to be blood spatter stains on the T-shirt. His blood was also smeared on the kitchen laundry door, and smeared and spattered in the laundry on a cupboard door and spattered on the washing machine and the wall opposite the washing machine. The examination also revealed a further area of heavy saturated blood staining measuring about 240 mm x 100 mm on the carpet further into the laundry, associated with fine smearing and a possible smeared blood drag mark leading towards Mr Fitzgerald's final resting position.
Ms Flonta has expertise in blood stain pattern analysis. Later, she examined and analysed other seized items, and samples taken from seized items, including the shoes and clothing worn by the appellant, Mr Tattersall and Mr Watkins. She gave evidence about the blood staining she observed at Kerry Court. She described blood impact spatter present over an area of about 500 mm x 300 mm on the laundry cupboard door, and blood impact spatter on other vertical surfaces in the laundry including the washing machine and the wall opposite the washing machine. Evidence of DNA analysis of samples of the blood she saw established a match to Mr Fitzgerald's DNA to an extremely high level of probability. There could have been no reasonable doubt that it was Mr Fitzgerald's blood which had pooled on the laundry floor and which was smeared and spattered on vertical surfaces of the laundry.
Ms Flonta's evidence was that blood impact spatter results from application of force to a source of wet blood, such as a bleeding injury, causing the distribution of droplets radiating from the site of the impact. The size and pattern of blood splatter is indicative of the location and force of the impact. The smaller the droplets, the greater the impact required to create them. Ms Flonta observed blood impact spatter on the laundry cupboard door up to 300 mm from the floor and on the washing machine up to 420 mm from the floor. Her evidence was that the location and pattern of the blood impact spatter was consistent with all having come from the same impact source at or near the smaller saturation stain on the carpet in the laundry. In her opinion the spatter was not associated with the larger pool of blood under Mr Fitzgerald's head in the position he was finally found. She observed fine blood spatter, indicating the application of greater force, on the washing machine and wall. The spatter on the wall had been projected with momentum for more than 800 mm from her identified point of impact. It was open to the jury to conclude that the type of impact which produced the blood spatter in the laundry at Kerry Court was strongly consistent with the type of forceful kicks and stomps which Mr Tattersall described the appellant as having inflicted to Mr Fitzgerald's head as he lay on the floor in the laundry.
Moreover, examination and analysis of the appellant's shoes, jeans and T-shirt disclosed the presence of Mr Fitzgerald's blood, including in the form of both transfer staining and fine impact splatter, strongly matching the splatter in the laundry. It is to be recalled that Dr Lawrence gave evidence of his observation during the post mortem examination, of what he believed were shoe prints left on Mr Fitzgerald's face. There was some blood on the appellant's left shoe. However his right shoe was heavily stained with Mr Fitzgerald's blood, both on the upper surface and under the sole. The blood was on the heel of the shoe extending into the grooves of the under-surface of the sole. There was fine spatter and transfer staining on the left side of the sides and upper of the shoe, distributed between the middle and the heel. There was heavy transfer staining associated with impact spatter on the heel, upper and sole, some of which showed, in Ms Flonta's opinion, an abrupt change of direction typical of motion and impact. The appellant's jeans had numerous circular stains forming possible fine spatter patterns. The size of the droplets ranged from less than 0.5 mm to 4 mm in diameter and were on the front outer knee and the right and left thighs. A pattern consistent with fine spatter was also on the back of the right cuff of the jeans. Spatters of Mr Fitzgerald's blood were found on the chest and middle of the appellant's singlet. The evidence of blood and blood spatter on the appellant's shoes and clothing strongly supported Mr Tattersall's account.
The appellant contends that the blood spatter on his shoes could have happened as a result of him simply "stumbling through a pool of blood". He contends that the blood on his shoes and clothing is explained by his account that, when intervening between the other two men, he accidentally stepped on Mr Fitzgerald. The jury was entitled to reject both explanations as implausible.
Admissions made by the appellant and contemporaneous statements made by Mr Tattersall
There was evidence of statements made by the appellant to Mr Watkins, and overheard by Ms Lee, which the jury was entitled to treat as admissions made by the appellant. Shaun Watkins gave evidence of phone calls made to him by the appellant while the appellant and Mr Tattersall were together at Mr Fitzgerald's unit, and as those two men walked back from that unit to Mr Tattersall's home. Mr Watkins' evidence was corroborated by the evidence of Rebecca Lee. His evidence of the calls, although not the contents of them, was also supported by the phone records. The appellant phoned Mr Watkins a few seconds before 12.25 am. The call was made while the appellant was still at Mr Fitzgerald's unit. According to Mr Watkins, during that phone call the appellant admitted having struck Mr Fitzgerald. Mr Watkins said that the appellant told him that, after Mr Fitzgerald had struck him, that he had to "drop him". Another phone call took place between the appellant and Mr Watkins as the appellant and Mr Tattersall were walking back to Mr Tattersall's unit. Mr Watkins said that in the course of the phone calls the appellant told him not only that he had to "drop" Mr Fitzgerald, but that he had "smashed" him and "bashed him", but that "he's all right. I know what I'm doing".
During the phone calls between the appellant and Mr Watkins the phone was given by the appellant to Mr Tattersall. Evidence was also admitted of representations made by Mr Tattersall to Mr Watkins, heard by Ms Lee, about what he had just seen. Mr Watkins told the jury that Mr Tattersall told him that the appellant had given Mr Fitzgerald a "hiding". Mr Watkins' evidence-in-chief included this exchange about what was said by the appellant, who was known to them as "Rebel", and Mr Tattersall during the phone calls:
"All right. And before Mr Tattersall came onto the line, what was it that Anthony had been saying to you?…..That he had to drop Mr Fitzgerald because he'd hit him three times.
Are they the words – you can use the exact words he used, did he use drop or did he use something else?.....I had to fuckin' knock him out or sumpen.
Right, all right. Tell – you then – tell us what happens then after he said that, the phone's passed to someone else?.....To Cameron.
Right. And what does Cameron say?.....Then Cameron gets on the phone and says how Rebel and him had just been in a fight and Rebel had give him hiding.
…
Okay. Did [the appellant] say anything about Mr Fitzgerald and what he'd done or what condition he was in?.....Prior to that phone call actually, he said that after he'd knocked him out unconscious and that and he – he put his tea down beside his face.
Yep?.....And then, yeah, the next phone call was when they – when they're on their way back down to Cameron's house, I hear the rolling in the background, it's the sound of a suitcase rolling down the footpath and I asked what it was, they told me they went back to Cameron's. I hung up and then, no they said – he said, 'But I'm not a dog though, I didn't jump on his head and I didn't take his fifteen hundred bucks out of his wallet.
Right, did he say anything else after that?.....He – he – he said, 'here, if you don't believe me, I'll put you on the phone to Cameron and he can tell you how I bashed him' and then he put Cameron on the phone and Cameron got on the phone and he said 'yeah man, Rebel absolutely kicked the fuck out of him man', and I thought it was a bit funny the way that Cameron had come across and said it and I had a bit of a giggle about it and I put it on – and I said, 'listen to this Babe'. Me missus was trying to go to sleep and um, she had a bit of a giggle about the way that Cameron come across and said it too, it was just the way that he – he said it, at the time."
Ms Lee heard much of the conversations because Mr Watkins had activated the phone speaker. She gave evidence that she heard both Mr Tattersall and the appellant laughing. She heard the appellant say that he had "fucked up" or "fucked him up", that he had "got into a fight with Fitzy" and that Mr Fitzgerald was unconscious. Ms Lee gave evidence that she heard Mr Tattersall say that there was blood everywhere. In the subsequent phone call made while she was in the bed with Mr Watkins she heard the appellant say that Mr Fitzgerald was "still unconscious" and that "there's blood all up the walls" and that "he's not awake yet but he will wake up". She said that she heard Cameron Tattersall say that "Fitzy was bleeding from his head, his mouth and his nose."
Later in his evidence, Mr Watkins gave an account of what was said to him by Mr Tattersall when those two men were walking back to Mr Fitzgerald's unit:
"Yep?.....But then we were walking and I start asking Cameron more questions about the incident, how badly Mr Fitzgerald had been assaulted.
Right. What did he say to you?…..He said that there is, they'd – he'd not only given him an elbow but he'd jumped on his head, or kicked him in the face about five times.
That's what Cameron said to you?…..Yes. He said, and the way he explained it was – and they were big kicks, like, it was the way he said, like."
It was open to the jury to accept the evidence of Mr Watkins and Ms Lee as to what was said by the appellant and Mr Tattersall. Their evidence, if accepted, was of representations made by the appellant which were admissions probative of his guilt. The evidence of what Mr Tattersall said he had seen was admissible not only of Mr Tattersall's credibility, but also as evidence of the truth of the facts asserted in his representations.
Exculpatory evidence
What then, is the evidence which the appellant now suggests required the jury to have entertained a reasonable doubt of his guilt? The appellant contends that there was evidence which tended to exculpate him, and other evidence which suggested that Mr Watkins and Mr Tattersall may have been responsible for killing Mr Fitzgerald, or that Mr Fitzgerald died from some other cause. Although it is for this Court to review all of the evidence, the appellant's challenge is directed to a number of specific issues. In substance, he contends that:
· the evidence of the cause of Mr Fitzgerald's death was uncertain, and it was reasonably possible he died for some reason that the appellant "had no control over";
· an injury to the appellant's leg meant that he was not capable of having killed Mr Fitzgerald in the manner alleged by the prosecution;
· Mr Tattersall and Mr Watkins both had a motive and the opportunity to kill Mr Fitzgerald, and engaged in conduct after Mr Fitzgerald's death which was probative of their guilt;
· the evidence suggests that Mr Fitzgerald's body was moved after the appellant left the unit, leaving open the possibility that another person did an act which caused Mr Fitzgerald's death in some unknown way.
In my assessment, for the following reasons, the jury was entitled to exclude, as a reasonable possibility, that someone other than the appellant killed Mr Fitzgerald, or that Mr Fitzgerald died for some other reason. None of the matters raised by the appellant, nor any other evidence, required the jury to have a reasonable doubt of his guilt. There is not a significant possibility that an innocent person has been convicted.
In considering the matters which the appellant now contends required the jury to have a reasonable doubt, there is necessarily some overlap with the evidence probative of his guilt.
The causation argument
For reasons already expressed, there was no reason that the jury ought to have entertained a reasonable doubt that the injuries suffered by Mr Fitzgerald were directly and immediately connected with his death, and that the person who inflicted those injuries caused his death. The jury was correct to exclude, as a reasonable possibility, that Mr Fitzgerald would have died when he did but for those injuries.
The injury to the appellant's leg
The appellant contends that an injury to his leg from which he was suffering at the time meant that he was not capable of having killed Mr Fitzgerald in the manner alleged by the prosecution. The question for this Court is whether the evidence of the injury, viewed with all the evidence, should have caused the jury to have had reasonable doubt of his guilt. The clear answer to that question is no.
At trial, the appellant told the jury that, in early 2016, his left leg was broken below the knee in three places in a motorcycle accident. The fractures were treated in Launceston, and fixed with pins and a metal frame. The pins were removed, he said, in mid-2016 after which he used crutches. However, while he was in Melbourne, his leg was "re-broken" in an assault. He was admitted to hospital in Melbourne and, this time, his leg was put in plaster. By 30 November 2016 the plaster had been removed, but he said that his leg was still painful and he used one crutch. Cameron Tattersall accepted that during the couple of weeks that the appellant had been staying with him, prior to Mr Fitzgerald's death, that the appellant appeared to have a leg injury. He had been using crutches of the type worn from the forearm "a little bit". Mr Watkins also agreed that the appellant had a leg injury. He told the jury that the appellant had had the injury for weeks and had "just started to put weight on it". When cross-examined, Mr Watkins said that the appellant's leg had "pins through it", although that evidence must have been mistaken. It was inconsistent with the appellant's own evidence that the pins had been removed months earlier, and the photographs taken of the appellant's legs on his arrest confirm that there were no external pins.
There was ample evidence from which it was open to the jury to find that the appellant was, despite the evidence of an injury to his left leg, capable of stomping on Mr Fitzgerald's head with his right foot. Mr Tattersall told the jury that the appellant did not use the crutches all the time, and was capable of walking without them. On the afternoon of 30 November, the appellant left Mr Tattersall's unit without taking his crutch. In cross-examination he agreed that he was able to walk for 10 to 12 minutes back to Mr Tattersall's unit unaided, and that his left leg was weight bearing, although he maintained that it was "painful". There was no medical evidence that he was not able to support his weight on his left leg. Cameron Tattersall's evidence was that after the appellant knocked Mr Fitzgerald to the ground, the appellant went into the laundry and, before stomping on Mr Fitzgerald's head, he put his hand on the washing machine. It was open to the jury to conclude that the appellant did so for support and balance.
The possible involvement of Mr Watkins and Mr Tattersall
The appellant contends that there was evidence that Mr Watkins and Mr Tattersall, one or both, and not the appellant, were responsible for Mr Fitzgerald's death. The appellant does not suggest the possible involvement of some other unidentified person, but submits that there was "an abundance of evidence … proving the guilt of other witnesses". There are only two theoretical scenarios consistent with the appellant's innocence. The first is that Mr Tattersall inflicted the injuries during a wrestle or scuffle described by the appellant in his evidence before the two men left Mr Fitzgerald's unit together. The second scenario is that Mr Tattersall and Mr Watkins, or one of them, killed Mr Fitzgerald by some unknown act after they returned to the unit, and that they conspired to conceal the truth. In my assessment the jury was correct, on all the evidence, to exclude those alternative scenarios as reasonably possible.
Mr Watkins
I turn first to the appellant's contentions about the possible involvement of Shaun Watkins in Mr Fitzgerald's death. The appellant contends, in substance, that Mr Watkins had the motive and opportunity to kill Mr Fitzgerald, and behaved in a way which suggested his guilt. The appellant contends, as he did at trial, that it was reasonably possible that Mr Watkins, in some unexplained way, killed Mr Fitzgerald when he went to the unit with Mr Tattersall, and therefore that the jury should have had a reasonable doubt about the appellant's guilt. The submission should be rejected.
At trial, the appellant did not dispute the evidence of Rebecca Lee and Shaun Watkins that they spent the afternoon and evening of 30 November 2016 together in Ms Lee’s house in Lucy Place. By being present at that address with Ms Lee, Mr Watkins was in breach of a condition of a family violence order in force for her protection. During the evening, the appellant and Mr Watkins were in contact by phone. Mr Watkins had declined an invitation to join the others at Mr Fitzgerald's unit. Mr Watkins and Ms Lee were both in bed at Lucy Place when the appellant phoned again. That phone call was not made until after midnight. Ms Lee's evidence was that the phone call was received at midnight but the phone records demonstrate that the call was received a few seconds before 12.25 am and lasted for about 13 minutes. The phone records also confirm Mr Watkins' evidence about the second phone call between his mobile phone and the appellant's mobile phone, although they indicate that the second phone call originated from Mr Watkins' phone, and not that the appellant "phoned" back as Mr Watkins had said. This phone call commenced at 12.40 am and lasted for over 14 minutes. Ms Lee told the jury that in the second call she heard the appellant mention that Mr Fitzgerald had $1,500 but that he had not taken it. Mr Watkins' evidence was that he then dressed in shorts and a jumper and "sandshoes" and left the house at Lucy Place. Before he left he told Ms Lee that he was going to check on Mr Fitzgerald, but that if he had $1,500 he would take it. He then walked to Mr Tattersall's unit in Morris Street. It took between five and ten minutes for him to do so. There he met Mr Tattersall and the appellant. Meat was unpacked from the suitcase and there were other exchanges between the three men. It was only then he and Mr Tattersall walked to Mr Fitzgerald's unit. It took them another five to ten minutes.
Ms Lee gave evidence of three phone calls made to her by Mr Watkins after he left her unit. The making and time of the phone calls is corroborated by the phone records. The first call commenced 1.13 am and lasted for less than a minute. Ms Lee's evidence was that in that call Mr Watkins told her that he was at Mr Tattersall's home with Mr Tattersall and the appellant. He told her not to answer the door to the appellant if he were to arrive at her home. She received a second call almost immediately afterwards. That call was made at 1.14 am and lasted for about seven minutes as Mr Watkins was walking between Morris Street and Kerry Court. Mr Watkins told her that he had helped unpack a suitcase full of food and he was "heading up to Fitzy's to check if Fitzy was okay". During the course of the call she heard background noise as if Mr Watkins was walking outside, and then, towards the conclusion of the call, she heard a door open, and heard Mr Tattersall in the background say "oh fuck, oh fuck, he's fucking dead", and Mr Watkins said "he's fucking dead, he's fucked", before he hung up. Mr Watkins phoned her again at 1.25 am. That call lasted for 50 seconds. During that call Mr Watkins asked her to delete her call log and that, if the police came, "not to say that he had been at [her] home", but to say "that he'd been drinking with Cameron and Rebel and had been at Cameron's house with them all day".
According to Ms Lee, Mr Watkins arrived home about five or ten minutes later. She heard him go into the bathroom and heard the tap running. When he came into her bedroom he "looked like he had seen a ghost", told her that Mr Fitzgerald was dead. He said he was going back to Mr Tattersall's house so the police would not know he had been at her home, and then left. When she went into the bathroom she smelled bleach.
Mr Watkins told the jury that he was still on the phone to Ms Lee when he arrived at Mr Fitzgerald's unit. He said that Mr Tattersall went inside first but, from outside, he could see Mr Fitzgerald lying in an internal door way, and could see his legs. Mr Tattersall said "he hasn't moved." Mr Watkins went inside, approached Mr Fitzgerald and checked under his chin but found no pulse. He said that Mr Fitzgerald was lying on his side with his right arm tucked behind him, felt cold, and that the front of his face was a bloody mess. Mr Tattersall was, he said, shaking Mr Fitzgerald and telling him to wake up, and was on the phone to the appellant. His evidence is corroborated by the phone records which show two calls made by the appellant to Mr Tattersall, one a few seconds before 1.23 am lasting about three minutes, and another a few seconds before 1.27 am, lasting 38 seconds.
From outside the unit Mr Watkins rang Ms Lee and told her that Mr Fitzgerald was dead, following which he re-entered the unit, he wiped under Mr Fitzgerald's chin with the sleeve of his jumper, told Mr Tattersall to get off the phone and "ring the cops and ambos." He also told Mr Tattersall that he, Mr Watkins, "was never here", "don't tell anyone I was here", and "to keep him out of it". He then left the unit, wiping the door handle on the way out. He ran back to Lucy Place. It only took him a few minutes. The appellant phoned him while he was on the way. When Mr Watkins arrived at Lucy Place he washed the blood off his hands in the bathroom, wiped his hands on a towel, took off his jumper and hid it behind a display cabinet. He again asked Ms Lee to say that he had not been at her unit, before returning to Mr Tattersall's unit in Morris Street. He spoke to the appellant again on the phone while he was walking, and then, when he returned to that unit, he confronted the appellant with the fact that the appellant had killed Mr Fitzgerald. Mr Watkins then phoned the police. While waiting for the police he deleted his call logs. There was evidence that, when the police arrived, he told them that the appellant had killed Mr Fitzgerald. That statement was not evidence of the truth of the representation, but was relevant to the jury's consideration of his credibility, and whether he had conspired with Mr Tattersall to untruthfully blame the appellant.
Although there were matters which reflected poorly on him, it was open to the jury to accept Mr Watkins, in all important respects, as a credible and reliable witness. His evidence was corroborated by other evidence. His movements from and back to the Lucy Place unit were captured on CCTV. The phone records confirm the making of the calls between his phone and Ms Lee's phone, his phone and the appellant's phone, and between the appellant and Mr Tattersall at times consistent with his account. His evidence about the position of Mr Fitzgerald's body is consistent with the evidence of the attending police, the crime scene examiners and the photographic evidence. His evidence about the body being already cool is supported by the evidence of the paramedic who arrived only 16 minutes after the "000" call was made. His evidence is largely consistent with the account given by Ms Lee and, at trial, none of Ms Lee's evidence about the time or contents of the phone calls, or her conversation with Mr Watkins when he returned to her unit, was challenged. The phone records confirm Mr Watkins' account of phone calls between Mr Tattersall and the appellant made at the time. The records show calls being made between Mr Tattersall and the appellant at 1.23 am and for 38 seconds commencing at 1.26.49 am. The "000" call was made by Mr Tattersall at 1.27.37 am and continued for almost 19 minutes. The combined force of all the evidence provides overwhelming support for the inference that Mr Fitzgerald was already dead by the time that Mr Watkins and Mr Tattersall arrived back at his unit, and that the chance that Mr Watkins, and not the appellant, had killed Mr Fitzgerald was so remote that the jury could exclude it as a reasonable possibility.
The appellant contends that other evidence tends to incriminate Mr Watkins. At trial Mr Watkins accepted that one of the factors which motivated him to go to Mr Fitzgerald's unit was his intention to steal the cash which he learned that Mr Fitzgerald may have had. He admitted that he did not like Mr Fitzgerald. He took steps to hide evidence that he had gone to the unit with Mr Tattersall. He wiped surfaces, washed his hands, removed and hid his jumper. He asked Ms Lee and Mr Tattersall to lie about him having been at Mr Fitzgerald's unit. There was evidence at trial that Mr Tattersall, at least initially, lied to the police about Mr Watkins' presence at Mr Fitzgerald's unit. Mr Watkins asked Ms Lee to delete call logs and deleted his own call logs. He also asked Ms Lee to lie about having been at her unit. It was also contended at trial that when Ms Lee's mother asked him if he had been involved in Mr Fitzgerald's death, he failed to deny it.
In my assessment, none of the contentions advanced by the appellant about Mr Watkins, taken with of all of the evidence, required the jury to have a reasonable doubt about the appellant's guilt. Even though there is no doubt that Mr Watkins' plan to steal money from Mr Fitzgerald was dishonourable, there is no evidence he did so, and the strong inference is that the plan evaporated when he arrived at Mr Fitzgerald's unit. His conduct after having found Mr Fitzgerald's body may be explained by panic, a wish to avoid an unjust accusation and a reaction to having been brought into a situation not of his making. His attempt to hide the fact that he had been at Ms Lee's home may be explained by his wish to avoid punishment for breach of the family violence order which prohibited contact between them. The evidence of a failure to deny involvement to Ms Lee's mother, even if true, carried little weight. There is no evidence at all that he was responsible for the infliction of any force to Mr Fitzgerald. His shoes and clothing were seized and forensically examined. His hands were swabbed. No blood was found on any of the samples.
Mr Tattersall
For the reasons just expressed concerning Mr Watkins, the evidence did not require the jury to find that it was reasonably possible that Mr Fitzgerald killed by Mr Tattersall when he returned to the unit with Mr Watkins. Moreover, his conduct in almost immediately calling "000", the evidence of his conduct during that phone call, and his action in undertaking the confronting task of administering resuscitation to Mr Fitzgerald, are strongly inconsistent with the suggestion that he killed Mr Fitzgerald at that time. It is correct that Mr Tattersall lied to the police to try to conceal the presence of Mr Watkins at Mr Fitzgerald's unit. He had been asked by Mr Watkins to do so and consciously attempted to keep him out of it. Mr Tattersall's conduct is explained by the evidence.
The other theoretical possibility was that Mr Tattersall killed Mr Fitzgerald before he left the unit with the appellant. The only evidence that Mr Tattersall was responsible for the infliction of any violence upon Mr Fitzgerald came from the appellant. It was open to the jury to reject that evidence and to accept Mr Tattersall's account. At trial Mr Tattersall expressly denied that he had any physical altercation with Mr Fitzgerald. His account was more consistent with the evidence. The appellant's description of the altercation between Mr Tattersall and Mr Fitzgerald was quite inconsistent with it having been the cause of the injuries to Mr Fitzgerald revealed on post mortem examination. The appellant described the two men wrestling, then both lying on the ground with Mr Tattersall "half over" Mr Fitzgerald, elbowing the back of Mr Fitzgerald's head. He described Mr Tattersall standing on Mr Fitzgerald, but was unable to say whether he did so "intentionally." That account fails to explain the multiple severe head and facial injuries suffered by Mr Fitzgerald.
At trial, Mr Tattersall's credibility was challenged by the appellant's counsel. There was evidence, including from Ms Lee, that during the phone calls made by the appellant from Mr Fitzgerald's unit, Mr Tattersall had laughed about what he said he had seen just happen to Mr Fitzgerald. As I have already explained, he later lied about Mr Watkins having been there. The appellant gave evidence at trial about his observations of Mr Tattersall's mental health. The appellant told the jury that Mr Tattersall had told him that he suffered from schizophrenia, and in the four or five weeks after his return from Melbourne during which he had been staying with Mr Tattersall, he had observed him to have behaved in an unusual way. He said that Mr Tattersall told him that he was hearing voices, and seen "demons running up the wall" which he had tried to stab with a knife. When cross-examined, Mr Tattersall accepted that he suffered from schizophrenia, but said he was medicated for the condition and denied the type of behaviour the appellant described. The appellant also said that during the same period he had witnessed two arguments between Mr Fitzgerald and Mr Tattersall over Mr Fitzgerald's girlfriend, Rachel. He claimed that on one occasion the argument resulted in Mr Fitzgerald punching Mr Tattersall "on the nose". In cross-examination, Mr Tattersall agreed that there was an occasion on which Mr Fitzgerald gave him a "tap on the nose", but that he was acting in a "boisterous way" when drunk. He denied any confrontations between himself and Mr Fitzgerald about Mr Fitzgerald's girlfriend.
It was for the jury to assess the credibility of Mr Tattersall's evidence, and, in light of all the evidence, it was open to the jury to accept the truth of his account. In my assessment, when all of the evidence is taken into account, none of the matters now advanced as relevant to Mr Tattersall's credibility required a reasonable doubt of the appellant's guilt.
Analysis of swabs taken from Mr Tattersall's hands, face, and clothing disclosed the presence of human blood and DNA matching Mr Fitzgerald's blood to an extremely high level of probability. Assuming, as the evidence overwhelming suggested, that the blood was Mr Fitzgerald's blood, it was found on both Mr Tattersall's hands, on his left cheek, on his left sleeve of his long sleeve top and on his jeans. Some human blood was detected in swabs taken from stains on his shoes, but those swabs disclosed no positive match to Mr Fitzgerald's DNA. Ms Flonta gave evidence about the blood staining she observed on the sleeve of Mr Tattersall's top and his jeans. She told the jury that most of the staining was transfer staining, although there were some circular stains, the largest of which was 3 mm diameter, on the left front thigh of Mr Tattersall's jeans, and a group of small circular stains on the lower right leg just above the left side of the cuff. Ms Flonta was unable to say whether the two distinct areas of circular staining were from the same or two different events.
It was submitted by counsel for the appellant that the appellant's problems were "rooted from the abuse and violence towards him at a young age". The learned trial judge made specific mention of the appellant's dysfunctional upbringing. It was a factor his Honour took into account as assisting in the understanding of the appellant's character and conduct. It was not a factor which reduced the appellant's moral culpability for a crime of such gravity.
This ground cannot succeed unless the appellant demonstrates that, when all matters relevant to sentence are taken into account, the sentence is plainly unjust or unreasonable. In my view, after considering other sentences for murder, and the circumstances of this crime and this offender, the sentence imposed, both as to the head sentence and the non-parole period, was well within the proper exercise of the trial judge's sentencing discretion. The sentence was not manifestly excessive.
Result and order
Neither the challenge to conviction or sentence was made out. For the foregoing reasons I joined in the order dismissing the appeal.
File No 2452/2018
ANTHONY COLIN FINNEGAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
11 May 2020
On 3 March I joined in the order dismissing the appeal. I respectfully agree with the reasons for judgment of Pearce J.
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