Freeburn v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0044

ALEXANDER FREEBURN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2020
DATE OF JUDGMENT:	17 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 155
JUDGMENT APPEALED FROM:	[2018] VSC 616 (Hollingworth J)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of murder – Victim suffered mild intellectual disability – Victim was applicant’s girlfriend – Applicant prone to violence and aggression towards victim – Applicant inflicted multiple soft tissue injuries to victim during assault – Evidence of GHB in victim’s blood – Applicant left victim when she was still alive but in debilitated state – Evidence that applicant admitted to having lost control and seriously injured victim – Expert witnesses expressed different views whether assault a cause of victim’s death – Whether verdict unreasonable and not supported by evidence – Whether open to jury to conclude that the assault was a substantial and operative cause of victim’s death – Whether open to jury to conclude that applicant intended to cause victim really serious injury – Appeal allowed – Conviction of murder quashed – Substituted with conviction of manslaughter – Whether substantial miscarriage of justice due to admission of inadmissible evidence of disabling of CCTV system – Evidence not admissible as evidence of incriminating conduct – Trial judge gave clear and specific direction to jury not to rely on evidence – No substantial miscarriage of justice – Pell v The Queen [2020] HCA 12 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Dr M FitzGerald	Doogue & George Pty Ltd
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA

KAYE JA
EMERTON JA:

The applicant was convicted, by the jury empanelled on his trial, for the murder of Elizabeth Wilms in Kew between 30 June 2016 and 2 July 2016. He was sentenced to 25 years’ imprisonment, with a non-parole period of 20 years.

The applicant seeks leave to appeal his conviction on two grounds, namely:

Ground 1 — The jury’s verdict of guilt is unreasonable and cannot be supported having regard to the evidence.
Particulars:
(a)The evidence failed to prove beyond reasonable doubt that the applicant had caused the death of the deceased.
(b)The evidence failed to prove beyond reasonable doubt that the applicant had intended to cause grievous bodily harm to the deceased.

Ground 2 — The trial miscarried due to the admission of prejudicial evidence that a closed circuit television system had been deactivated prior to the death of the deceased.

Background

Elizabeth Wilms was born in May 1987, and at the time of her death she was 29 years of age. She was mildly intellectually disabled. After she became involved in an abusive relationship with another man in 2014, her parents obtained a guardianship order in respect of her from the Victorian Civil and Administrative Tribunal. In the following years, they endeavoured to supervise her activities and keep track of her whereabouts, in order to protect her. For that purpose they installed a tracking device in her motor vehicle, and restricted her access to her money.

In May 2016, Elizabeth Wilms met and befriended the applicant on the internet. They soon commenced an intimate relationship. At the time the applicant was living in a room above a shop in High Street, Kew (‘the premises’). During the period of their relationship, she would stay from time to time at the premises. The applicant was observed to act in a very jealous and possessive manner towards her, and at times he was physically violent towards her.

Shortly before 30 June 2016 — and probably from late 28 June — Elizabeth Wilms visited the applicant at the premises and remained there for the period that followed. She was last captured on the CCTV camera that was installed at the premises at 10.45 am on 30 June. At that time, the footage of Elizabeth Wilms did not depict any visible signs of injury to her.

At about 5.00 pm on 2 July 2016, the applicant was depicted departing the premises. He took with him a number of belongings including a large suitcase. The applicant travelled to the house of a woman he had met online, Erin Dober, in Terang. He remained with her over the following two days. During that time, he told Ms Dober that he ‘had lost control’ and that his girlfriend was ‘pretty hurt’, so that he was concerned about her.

In the meantime, Ms Wilms’ parents became concerned about her welfare. She was reported missing to the police on 4 July 2016. On 5 July, police attended at the premises and located her body. Ms Wilms was lying face down on the floor. She was seen to have a number of bruises and other marks on her upper body and arms. An autopsy conducted on the following day, revealed that Ms Wilms had suffered some 43 injuries, most of which were soft tissue injuries caused by moderate blunt force trauma. They constituted multiple bruising and abrasions to the head, face, back, arms and legs. There was some evidence of brain injury, consisting of shearing of the axons, which commonly occurs with concussion. That injury was not considered, of itself, to have been fatal. Toxicological testing of samples taken in the course of the autopsy revealed the presence of the narcotic gamma hydroxybutyrate (‘GHB’) at a level of 39 milligrams per litre of blood.

One of the principal issues in the trial concerned the cause of Ms Wilms’ death. Dr Michael Burke, the forensic pathologist who conducted the autopsy, considered that Ms Wilms died as a consequence of soft tissue injuries sustained in an assault on her in the context of her using GHB. Professor Johan Duflou, a forensic pathologist called on behalf of the applicant, disagreed with that diagnosis, and expressed the view that the cause of death could not be determined.

Summary of evidence

Due to the nature of the issues raised under ground 1, it is necessary to summarise the evidence, relevant to those issues, in some detail.

The first category of evidence concerned the movements of Elizabeth Wilms, and her relationship with the applicant, in the period leading up to her death. The first witness was her father, Peter Wilms. He gave evidence that from an early stage Elizabeth had been assessed as having delayed development. As already mentioned, after she had become involved in an exploitative and abusive relationship in 2014, Mr Wilms and his wife obtained a guardianship order in respect of her. In the period that followed, he had a GPS tracking device installed in her vehicle. He also controlled the disability benefits that were paid to her, by giving her a daily amount in cash. By that means he sought to ensure that he had regular contact with Elizabeth.

On 24 May 2016, Mr Wilms became aware that Elizabeth had met the applicant. In the following weeks she would stay at his place overnight on numerous occasions. On 15 June, Mr Wilms tracked Elizabeth’s vehicle to a service station in Kew. When he arrived there she was with another man called Chris. Mr Wilms was told that they had been at the applicant’s flat and they were concerned about the applicant’s behaviour, and felt threatened by it. He was also told that on that occasion the applicant had pulled Elizabeth’s hair.

On the following day, the applicant sent Peter Wilms a text in which he was very critical of Elizabeth, accusing her of dishonesty and disloyalty, and describing her as a ‘pathetic excuse for a human being’. On 18 June Elizabeth came home distressed, saying that she did not want to see the applicant anymore. She said that he had sat on her chest and made it difficult for her to breathe. Subsequently, on 26 June, when she came home in the evening, Peter Wilms observed that she seemed to have two black eyes. On the following day, she again returned home, and said that she was not going to return to the applicant. She requested Peter Wilms to collect her belongings from the applicant, which he did.

However, on 28 June, the GPS tracker in Elizabeth’s vehicle disclosed that she had returned to the premises, and on the following day her vehicle had remained there. On 29 June, at 8.40 pm, Mr Wilms had a long telephone conversation with Elizabeth, in which she maintained that she had every right to access her Centrelink money. On 30 June, Mr Wilms did not receive any answers to his telephone calls to Elizabeth. On 1 July, at 10.03 pm, he received a text from Elizabeth repeating her desire to have her Centrelink money and to be independent.

In the days that followed Mr Wilms made a number of unsuccessful attempts to contact Elizabeth. On 4 July, he sent the applicant a text asking about her whereabouts. The applicant responded with a text saying ‘I don’t know where she is. I haven’t been home in a few days’. On the same day, Mr Wilms reported to the police that Elizabeth was missing.

The next witness was Christopher Belfiore. In June 2016, Belfiore met Elizabeth and the applicant. In mid-June, he attended at the premises to consume drugs with the applicant. He said that Elizabeth did not use drugs on that occasion because she said that she was taking prescription medications. In the course of Belfiore’s visit, the applicant became physically agitated, standing up, punching the wall, and accusing Belfiore of trying to sleep with Elizabeth. As a result Belfiore departed.

On a subsequent occasion, on 15 June, Belfiore and Elizabeth happened to meet at a BP petrol station. Belfiore noted that Elizabeth looked sleep deprived, very distressed and tearful. While they were there, an older man (Elizabeth’s father) came to the petrol station and spoke to Elizabeth. Subsequently, Belfiore and Elizabeth departed from the petrol station. They first went to a park, and then ended up at Belfiore’s premises, where they had sex together.

Subsequently, Belfiore and Elizabeth exchanged text messages. She said she was not happy with the applicant and she wanted to retrieve her belongings. Belfiore told her to get the applicant out of her life.

On another occasion, Belfiore and the applicant met in the street. The applicant ran at Belfiore, tackled him to the ground, and punched him. During the assault the applicant said to him ‘You shouldn’t have fucked my girl’.

Wayne Barlow gave evidence that on either 25 June or 26 June 2016 the applicant, together with a girl called Liz, attended at his place. While Barlow was talking to Liz, the applicant became angry and aggressive, verbally abusing Barlow, and stating that he thought that Barlow was going to have sex with Liz. The applicant then started calling Elizabeth ‘a slut and a moll’ and said that he was going to hurt her. The applicant and Elizabeth then left. As they were doing so, Elizabeth looked frightened.

Alice McCann, the sister of Elizabeth, gave evidence of a conversation that she had with Elizabeth in her parents’ home in June. Ms McCann asked Elizabeth if the applicant had hurt her and she said he had ‘pulled [her] hair’. Ms McCann asked whether the applicant had done anything after that, and Elizabeth did not respond.

Raymond Allen met the applicant and Elizabeth on 5 June at Allen’s scrap metal yard. About one week later, the applicant and Elizabeth attended at Allen’s home to purchase a small quantity of marijuana from Allen. Allen observed that on that occasion, the applicant was being ‘paranoid’ concerning the manner in which Elizabeth looked at him. He said that she was looking at him in a ‘funny’ manner. On another occasion, about two or three weeks later, the applicant and Elizabeth visited Allen at his home to purchase some methamphetamine. At one point, Allen had the opportunity to speak to Elizabeth while the applicant was otherwise occupied. Elizabeth told Allen that she was scared of the applicant, and Allen gave her his telephone number. When the applicant and Elizabeth departed the premises on that day, Elizabeth did not seem as if she wanted to leave. On that occasion, the applicant was again acting in a paranoid manner towards her. He went towards her in an angry manner and Allen intervened and told him to leave her alone. Allen punched the applicant and pushed him away. He described the applicant’s attitude to Elizabeth as aggressive.

The prosecution led evidence (by reading two witness statements to the jury) that at 4.39 pm on 2 July 2016 a taxi was booked from the premises in the name of ‘John’, with the destination being Southern Cross Railway Station. In response, a taxi attended at the premises, and a man came out of the premises with a large suitcase. The taxi drove him to the railway station.

Reverend Dennis Webster is a priest at St Stephen’s Anglican Church in Richmond. He first met the applicant in September 2015 in an Outreach program. On the evening of 2 July 2016, he had a text message exchange with the applicant. At 8.57 pm, the applicant sent Reverend Webster a message stating ‘this is extremely important can you respond please’. He then sent a second text stating that he was trying to resolve a problem, that he may not be able to do so, asking if Reverend Webster could make himself available at 10.00 pm, and that it may be a matter of safety. Subsequently, at 11.00 pm, the applicant sent a further message to Reverend Webster stating ‘Can you gain access to a property in Kew, there may be a girl there that needs help?’.

Erin Dober first met the applicant on an internet dating site in April 2016. In June 2016, they began speaking to each other on the telephone. The applicant said that he was seeing a girl, she was a masochist, and that their relationship was making him something that he was not. He said she was ‘messed up’ and that he was trying to teach her. He also said that she had been lying to him and was manipulative. In the early hours of 2 July 2016, Ms Dober received a number of calls from a private telephone number which she did not respond to. Later on that date the applicant telephoned her and asked if he could stay at her home for a few days. He said he needed to get away to ‘clear his head’.

As a result, the applicant arrived at Ms Dober’s premises in Terang at 10.00 pm. He had with him a large suitcase and a couple of other bags. He stayed at her home for a couple of days. During that time, he spoke about his girlfriend. He told Ms Dober he had lost control and that his girlfriend was ‘pretty hurt’. When Ms Dober tried to reassure him, he said to her ‘What if she’s not okay’. He said that he should get someone to go and check on his girlfriend. On a few occasions, he said ‘What if she’s not okay’. At other times he said ‘How did it happen? What have I done?’.

Witness A was, at the time of the trial, a prisoner undergoing sentence in Long Bay Correctional Centre in New South Wales. He gave evidence that he had originally met the applicant in mid-2014. In 2016, he saw the applicant’s face on television in a report which said that he was a suspect for murder. Witness A next saw the applicant in the Long Bay Correctional Centre in January 2017. In conversations between them that followed, Witness A said that the applicant told him that he had been suffering from insomnia. The applicant said ‘Unless you’ve taken someone’s life you’ve got no idea how I feel’. He said that ever since he had killed ‘her’ he was unable to sleep and when he was awake he was having nightmares. He also said that taking someone’s life is like the ‘greatest rush you’ve had’. According to Witness A, the applicant said ‘Once you’ve taken someone’s life you’ve taken their whole power, it gets consumed inside you’. He described the act of taking someone’s life as a huge adrenalin rush.

Evidence was led from police members, including Senior Constable Juan Ramirez, a member of the Critical Incident Response Team, as to their attendance at the premises in the afternoon of 5 July 2016, in relation to the report that Elizabeth was a missing person. On arrival, Senior Constable Ramirez noted that the heater in the room was functioning. Elizabeth was lying face down with her nose flat on the floor. Her hands were above her head and crossed over at the wrists. The lower part of her back and her legs were covered with a sheet. There were two pools of blood to the right side of her underneath the bed. There were marks and bruising on her back. When Senior Constable Ramirez touched her, her body was very cold. In cross-examination, he said that the two pools of blood appeared to be wet. However, he did not test that by touching them.

The informant, Detective Leading Senior Constable Luke Farrell, obtained access to CCTV footage from the three cameras that were installed at the premises. Having viewed them, he stated that the only people who entered the premises between 30 June and 2 July were the applicant and Elizabeth. The footage depicted the applicant and Elizabeth returning to the premises at 5.38 pm on 29 June. On 30 June, at 5.31 am, they were depicted entering the premises carrying some goods. At 6.00 am, they both exited the kitchen that was downstairs, and then ascended the staircase which led to their room upstairs. The last footage of Elizabeth while alive was that taken at 10.45 am on 30 June, while she was walking up the stairway. There was further footage of the applicant at the premises at 11.22 am and 11.47 am. On the next day, 1 July, he was depicted returning to the kitchen at 7.51 am. He was not depicted on the footage again until 4.33 pm on 2 July. Senior Constable Farrell noted that there was a break in the footage between 11.27 am and 2.30 pm on that day.

At 4.33 pm on 2 July, the applicant was depicted exiting the premises with a large suitcase. He returned one minute later, and then at 4.47 pm was depicted descending the staircase carrying his laptop bag and a backpack. At 4.55 pm, he departed the premises carrying a small plastic bag and then returned without it. He then retrieved the three items of luggage and moved them into the laneway.

Summary of evidence of pathologists

Dr Michael Burke, a forensic pathologist employed by the Victorian Institute of Forensic Medicine, attended at the premises at 2.30 pm on 5 July. He observed Elizabeth to be lying on her stomach with her arms outstretched and covered by a sheet. When he removed the sheet, he observed that there were obvious bruises over her back and abrasions to the wrists, suggesting the use of restraints. There was clear adhesive sticky tape overlying the back of her hair. At 4.30 pm on that day, Dr Burke declared that she was deceased. He considered she had been deceased for about 36 hours, but said that that was a rough guide.

On the next day, at 10.00 am, Dr Burke performed an autopsy. He observed the following 43 injuries: a linear abrasion in the hairline; a laceration over the right forehead above the eyebrow; two black eyes; a laceration to the bridge of the nose with underlying fractures to the bone; bruising to the upper lip; an abrasion to the left cheek in front of the ear; bruising to the left side of the neck; an irregular incised injury to the left side of the neck; six regions of bruising to the left upper chest; four bruises to the abdomen; a superficial tear to the inner and upper aspects of the left nipple, and a superficial tear to the right nipple and a linear abrasion to it, those injuries being suggestive of a nipple clamp; discolouration of the skin on the right side of the chest; bruising to the left arm (which looked as if it was in the process of healing); a patterned parchment like distinctive semi-circular injury to the left wrist with well-defined borders, which was distinctive and consistent with wearing restraint on the wrist; two parallel parchment like abrasions to the back of the left wrist also suggestive of restraint; a skin abrasion to the back of the left hand; two regions of skin abrasion to the back of the left hand; bruising to the left fourth finger; extensive bruising to the left elbow; ill-defined bruising to the left wrist and back of the left forearm; extensive bruising to the left shoulder suggestive of five individual bruises; bruising to the back of the left arm; abrasion and bruising to the right arm; six bruises to the back and medial aspects of the right forearm; a discord bruise to the anterior aspect of the right forearm; bruises to the back of the right wrist and to the back of the right hand; a fracture of the proximal right index finger; a linear abrasion to the lateral aspect of the right wrist suggestive of restraint; a region of bruising to the front of the right knee and to the front of the right lower leg; an abrasion to the left knee; bruising to the left knee and lower leg; an abrasion to the left foot and ankle; bruising to the left thigh and to the lower left leg; tram track bruising to the back measuring thirteen centimetres by three centimetres, extending above and below which were three further regions of brown discolouration of the skin covering an area measuring 30 by 20 centimetres (Dr Burke stated that tram tracking occurs when a rod like cylindrical object comes into contact with the skin); an abrasion under the left shoulder blade; discolouration and an adjacent linear component to the left lumbar region; a scratch to the right upper back.

Dr Burke then conducted an internal examination. He said that the face had a different colour compared to the rest of the body, which he described as congestion of the face and upper neck with a well-demarcated linear division from the normal skin, raising the possibility of neck compression. There was bruising to the sternomastoid muscle near the skull which was due to blunt force. There was no fracture of the thyroid cartilage and no cricoid fracture. There was bruising near the voice box, but no fractures of the larynx. Examination of the internal organs was normal. The brain was examined by Dr Linda Isles, a specialist neuropathologist. There was no evidence of subdural, extradural or subarachnoid haemorrhage. There was however a shearing injury to the brain which was at the ‘lesser end of the spectrum’, suggestive of concussion.

Reflection of the skin of the scalp revealed extensive bruising extending from the frontal to the occipital region. There was no associated skull fracture. The bruising was suggestive of multiple applications of force. The bruising comprised a number of bruises which had joined together. The subcutaneous dissection of the face also revealed extensive bruises. There were multiple planes of bruising so there had to be multiple episodes of blunt force.

Reflection of the skin on the back revealed bruising from the nape of the neck across the shoulder blades and extending all the way down the back to the buttocks. There was a pocket of blood within the right lumbar region. The bruising was the result of multiple applications of blunt force trauma. The force may not have been severe but in totality there was a wide area of bruising. There was further bruising to the right chest. There was some congestion of the lungs but that would not have contributed to death.

Dr Burke observed the CCTV footage taken of Elizabeth while she was alive on 30 June, in which she was only wearing a brassiere on her upper body. Dr Burke stated that he could not detect any of the injuries in that footage that he observed on the autopsy.

In conclusion, Dr Burke stated that he considered that the cause of death was a consequence of an assault on a woman using GHB. He said that GHB is a drug that can cause central nervous system depression and lead to death. He said that there were a number of possible causes of the death. There was the issue of the GHB. Elizabeth also had tape around her face, and suffered a head injury, but that of itself would not have led to death. He said that extensive bruising involving the head, neck and back had been described in some literature as a potential cause of death.

Dr Burke said that he could not give an exact reason why Elizabeth had died. There were a number of different factors that he believed had led to her death. First, she had demarcation of the skin between the congested skin and uncongested skin on the neck, suggesting occlusion of the airway. Secondly, she had a head injury, but he did not consider that that of itself caused death, because there was no subarachnoid or subdural haematoma. He said that the GHB in the system was ‘a possibility’.

Dr Burke said that he had read two papers in the literature concerning people who had died with extensive bruising. He said those persons were often intoxicated with alcohol and had associated rib and lung bone fractures. The level of GHB in Elizabeth’s system was above what was accepted to be normal. The fact that Elizabeth had survived for some time meant that that level might have been higher at an early stage, which could have led to respiratory depression, and caused a ‘cascading effect’ from which she died. The fact that Elizabeth was restrained may have also contributed to her death, as she was face down, so that she was unable to expand her chest fully. He said that a number of his colleagues would have concluded that the cause of death was unascertained, and he said ‘I do not have a problem with that at all’. Dr Burke stated:

Whether you label the death as unascertained I have no idea or whether you say in my view it’s related to an assault but I can’t tell you exactly why.

In cross-examination, Dr Burke said that in the two papers in the forensic literature that described cases of death due to superficial soft tissue injuries, in each case, the death had been caused by hypovolemic shock, that is, by blood loss. Dr Burke could not identify any other process by which death would result from soft tissue injuries. He agreed that in order to suggest death due to blood loss from soft tissue injuries, a number of indicators should be present, which were not present in this case. Those indicators are: first, pallor of the internal organs; second, lack of blood in the blood vessels; thirdly, a flame shaped haemorrhage on the inner surface of the left ventricle of the heart; fourth, absence of post-mortem lividity; and fifthly fat embolisation.

Dr Burke excluded, as a possible cause of death, upper airway obstruction (by blood or vomit). He also said that there was no evidence of choking or strangulation. Dr Burke was reluctant to identify the degree of force necessary to cause the soft tissue injuries that he observed. At the most the injuries would have required a moderate degree of force. He agreed that the laceration above the deceased’s eye could have been caused as a result of a fall by her onto an object. He said it was likely that the spots of blood next to Elizabeth’s body, as depicted in the photograph, were deposited when he lifted the sheet from her body. He agreed that in that case, when he examined Elizabeth at the premises, the blood was still wet. He said that it was very difficult to age the soft tissue injuries, and that some of them might have occurred earlier in time than others. He agreed that, assuming that most of the soft tissue injuries had been caused by the applicant before he departed from the premises on 2 July at about 5.00 pm, it was possible that Elizabeth was still walking around at that time after she had sustained those injuries. He also agreed that the bruising to the eyes (the black eyes) that he observed may have been the same injury that had been observed by Peter Wilms on 26 June.

In respect of the level of GHB found in Elizabeth’s bloodstream, Dr Burke agreed that the level of 39 milligrams per litre would be a statistical ‘outlier’ if all of that level had been produced by the body and not by the ingestion of GHB. He agreed that it was possible that Elizabeth’s death had been caused by the consumption of GHB in isolation. The fact that the autopsy blood samples, that were taken from Elizabeth’s body, were transported quickly to the laboratory where they were refrigerated, would have minimised the chances of post-mortem production of GHB in the body. The samples were collected, stored and analysed under conditions that would have reduced the post-mortem production of GHB. He agreed that higher doses of GHB can lead to cardiac respiratory breakdown. In addition, after the drug has been ingested, it has a short half-life in the body of about 20 to 60 minutes. Thus, based on a half-life of 60 minutes, if the level of GHB in the bloodstream was 39 milligrams per litre on autopsy, two hours before that it could have been 160 milligrams per litre. Dr Burke had specifically requested testing for GHB because of the unusual circumstances of the death, and he had suspected that it was possible that GHB might have been involved in Elizabeth’s death.

Dr Burke, in cross-examination, stated that in estimating the time of death to be 36 hours before his initial examination of Elizabeth (4.30 pm on 5 July), there could have been a ‘window’ of 24 hours on either side of that estimate. Thus, if the applicant departed from the premises at 5.00 pm on 2 July, Elizabeth would have died after his departure.

Dr Burke agreed that it was impossible to tell from Elizabeth’s brain injury whether she had suffered concussion. He was also unable to say whether the injury occurred before or after she sustained the soft tissue injuries. Counsel then put to Dr Burke the opinion of Professor Duflou, namely, that while it was possible that Elizabeth died of multiple superficial blunt force injuries, there was only equivocal evidence of that being the case, and that accordingly Professor Duflou could not state with any degree of confidence that Elizabeth died of those injuries. Dr Burke said that he considered that that opinion, by Professor Duflou, was a ‘fair conclusion’. He also agreed that it was possible that Elizabeth had taken GHB in the period after 5.00 pm on 2 July, fallen, hit her head, and collapsed on the floor, in which scenario the cause of death would have been GHB causing cardiorespiratory depression.

Professor Duflou was called on behalf of the applicant, and his evidence was interposed so that it was heard immediately after the evidence of Dr Burke. Professor Duflou did not attend the autopsy. However, he had available the autopsy report of Dr Burke, the toxicology report of Mr Kotsos, and the report of Dr Isles, as well as the evidence of Dr Burke and Mr Kotsos at the committal proceeding, and the evidence of Dr Burke, Mr Kotsos and Dr Isles at a Basha hearing that took place before the empanelment of the jury.

Professor Duflou agreed with Dr Burke that none of the head, trunk or limb injuries were likely to have caused death on their own. He also agreed that there was no indication of death due to neck compression, choking or suffocation. He further agreed that the brain injury on its own would not have caused death, and that consumption of GHB in isolation was a possible cause of death. Professor Duflou said that the point at which he disagreed with Dr Burke was in postulating a cause of death. He expressed the view that Elizabeth’s death was best ‘listed as undetermined’. He said that it was not possible to form a conclusion as to the cause of death from the autopsy and forensic pathologist investigations.

Professor Duflou said that there were no indications of death due to hypovolemia arising from the soft tissue injuries. Externally there was little blood loss. Further, the ordinary indicators of hypovolemic shock were not present. There was no pallor of the organs. There was no evident paucity of blood in the vascular system. There were no flame shaped haemorrhages in the heart. There was no fat embolism, and there was some post-mortem lividity.

Professor Duflou considered that it was probable that Elizabeth had been deceased for more than 24 hours before examination by Dr Burke because rigor mortis was wearing off at that point. He said death could have occurred 36 to 48 hours previously. He considered it was probable that Elizabeth had died after the applicant had left the premises at 5.00 pm on 2 July.

Professor Duflou stated that the level of GHB (39 milligrams per litre) was an elevated level. He did not consider that that is a level associated with post-mortem production or endogenous production. In the present case, the steps taken to preserve the blood sample would have minimised the level of post-mortem production. He said that if the level of GHB in the system were the result of post-mortem production, it would have been an ‘extreme outlier’.

Professor Duflou repeated that there were no clinical signs to indicate that the soft tissue injuries caused blood loss leading to hypovolemic shock. He did not exclude that diagnosis as a possibility, but the evidence did not indicate it. The brain injury sustained by Elizabeth was a mild head injury, which, in the scale, was minor. He said that there was nothing that would exclude as a possibility the hypothesis that most of the non-accidental soft tissue injuries had occurred before the applicant departed the premises at 5.00 pm on 2 July, and that thereafter Elizabeth had taken GHB, had a fall, and hit her head.

In cross-examination, Professor Duflou agreed that the CCTV footage of Elizabeth at 9.35 am on 30 June (which depicted the uncovered top half of her body) did not depict any visible injuries to the chest, stomach or to her eyes. He agreed that based on the histopathology, all of the bruising could have occurred between 30 June and 2 July. He agreed with Dr Burke’s assessment of the time of death as some 36 hours before 4.30 pm on 5 July. He agreed that that was a rough guide, and he could not exclude the time of death being sometime on 2 July. He considered that to be unlikely.

Professor Duflou said that he could not exclude as a possibility that Elizabeth died as a result of her soft tissue injuries, which were occasioned in an assault on her. He said that there were no observable indicators of hypovolemic shock which you would expect to observe at a post-mortem. He agreed that the science concerning death due to multiple superficial injuries is in a state of uncertainty. He also agreed that the brain injury could have rendered Elizabeth completely unconscious. He accepted that this is not a case in which it could unequivocally be concluded that death was caused by the ingestion of GHB. He said that GHB can cause death by depression of the central nervous system. If the only indication of a potential cause of death, on autopsy, was 39 milligrams of GHB per litre of blood, then it could be said that death was probably caused by GHB toxicity.

Professor Duflou stated that the brain injury was minor. He agreed that injury to the brain, no matter how minor, may carry risk. However, the injury in this case would have been extremely unlikely to have resulted in death on its own. He also accepted that it was possible that the soft tissue injuries in combination with the ingestion of GHB could have caused the death.

Dr Linda Isles is a forensic pathologist who specialises in neuropathology. Following the autopsy, Dr Isles examined the brain. She made three findings consistent with blunt head trauma. The first was mild swelling of the brain, but the swelling was very subtle, and it was difficult to draw any significant inference from it. The second finding was multifocal traumatic axonal injury. In particular, there was evidence of injury to the axons in the long white matter tracks in the top of the brain which was caused by blunt head trauma. There was also such injury in the frontal cortex and in the internal capsules. For that reason it was multifocal. Dr Isles stated that that type of injury may only be observed in an autopsy, so it is not possible to know how many people may have had such a head injury and survived. Dr Isles was of the view that, due to the accumulation of protein that resulted from the disruption of the nerve fibers, there would have been a minimal survival time of tens of minutes, and a maximum survival time of several days. She said that the third finding she made was of focal chronic subdural membranes. However, that was an old injury, related to blunt head trauma, from some distant past.

In cross-examination, Dr Isles considered that based on the signs that she observed under microscope, death would have occurred within half an hour to two hours of the head injury. She said that there was no evidence to suggest that the brain injury alone was sufficient to cause death and she could not say that that injury was a cause of death.

Alexander Kotsos, a toxicologist employed by the Victorian Institute of Forensic Medicine, examined blood samples taken from Elizabeth’s leg. He confirmed that GHB was detected at 39 milligrams per litre of blood. He described GHB as a sedative, which is also used as a party drug, because it produces euphoria and disinhibition. He said that GHB can cause death through depression of the central nervous system. In particular, it acts on the system and affects the regions of the brain that are involved with respiration causing them to slow down. Mr Kotsos said that GHB occurs naturally in the human body (that is, it is endogenous), ordinarily in the order of one milligram per litre or less. GHB can be produced post-mortem and in this case he could not specifically exclude that some of the level detected was from endogenous and post-mortem production. He said that the level that is usually set, in laboratories, as having been caused by natural processes before and after death, is 20 milligrams per litre. He said that if the GHB ingested by Elizabeth had produced a coma, the effects on the central nervous system and respiration could have resulted in death.

In cross-examination, Mr Kotsos said that if Elizabeth had a GHB level of 39 milligrams per litre in her body when she died, and if she had been alive for two hours before that and her system was breaking the drug down, then she might have ingested GHB at a level that was sufficient to put her into a coma.

Ground 1: Submissions

In support of ground 1(a), senior counsel for the applicant submitted that the jury could not have excluded the reasonable possibility that the consumption of GHB by Elizabeth by itself caused her death, or alternatively, that it had such an overwhelming effect on her condition that it broke the chain of causation between the applicant’s acts and her death.

Counsel submitted that the evidence in relation to the issue of causation was particularly uncertain. The evidence did not permit any degree of reconstruction of the order in which the injuries had been inflicted on Elizabeth, or the period of time over which they had occurred. Further, counsel submitted, the causal contribution of the assaults by the applicant on Elizabeth was not clear. The proposition, that death had been caused by multiple soft tissue injuries, was not well supported by medical science, and none of the usual indicia of death due to multiple soft tissue injuries causing hypovolemic shock were present. Further, none of the injuries attributable to blunt force trauma of themselves were demonstrated to have caused her death. The deceased’s airways were not occluded, and there was no evidence of asphyxiation. The brain injury was a mild concussion which, the experts agreed, would not of itself have resulted in death. Counsel further submitted that the evidence demonstrated that the level of concentration of GHB in the deceased’s bloodstream was sufficient of itself to cause death. Finally, it was submitted, the jury could not exclude the reasonable hypothesis that after the applicant had departed from the premises, the deceased took GHB, and then in a drug affected state fell and struck her head.

In their written case in support of ground 1(b), counsel submitted that the jury could not have been reasonably satisfied that in assaulting the deceased, the applicant formed the intention of causing her really serious injury. The deceased had been subjected to a number of severe assaults. However, the deceased’s injuries could have been inflicted over a protracted period of time, which made it impossible (it was submitted) to conclude that there was an intention to inflict really serious injury at any particular point. Accordingly, it could not be concluded that the assault or assaults that contributed to death were accompanied by the requisite intent to cause really serious injury. Counsel contended that in light of the reasonable possibility that the deceased was still alive when the applicant departed from the premises, the jury was entitled to take into account the fact that he desisted from the assault weighed against the formulation by him of an intention to cause her really serious injury. Further, there was no evidence that the deceased had been struck with a weapon. If the applicant had intended to cause her really serious injury, he could have resorted to a weapon such as a knife or some other such object.

Accordingly, it was submitted that the jury could not be satisfied that the applicant intended to cause the deceased really serious injury, so that the conviction for murder should be set aside, and a verdict of guilty of manslaughter substituted.

In a thorough and well-constructed oral submission on the application, senior counsel focused primarily on ground 1(b). He noted that in the course of submissions on a no case application at trial, the judge observed that she would have directed the jury to acquit on the charge of murder, if not for the evidence of Witness A. Senior counsel, on the present application, submitted that apart from the evidence of that witness, there was no other evidence on which the jury could reasonably conclude that, at the relevant time, the applicant intended to cause Elizabeth really serious injury. He contended that it was not reasonably open to the jury to be satisfied of the truthfulness and reliability of the evidence of Witness A for a number of reasons, to which we will refer in greater detail shortly. In summary, counsel noted that Witness A did not include, in the first two statements that he made to the police, the principal admission which he alleged the applicant made to him concerning the excitement that he had felt arising from having killed Elizabeth. Counsel noted that Witness A only told police of that admission, allegedly made by the applicant, after Witness A’s application before the Serious Offenders Review Panel had resulted in an outcome that was adverse to him. Further, Witness A was not able to give a consistent reason why he had not recounted to police that admission in the first two statements that he had made. Counsel noted that at the time at which Witness A spoke to the police, he had been sentenced to a long term of imprisonment in respect of brutal sexual offences that he had committed. In cross-examination, he told a large number of lies about the nature of that offending. He also lied to police when he was apprehended for those offences. Witness A had a clear motive to fabricate his evidence, so as to facilitate the availability to him of his non-parole period. Finally, counsel noted that at the time at which Witness A claimed that the applicant had made the admissions to him, they were in separate divisions of Long Bay Correctional Centre. It would have been very difficult for the applicant to have made the admissions to Witness A without being overheard by prison officers and other prisoners.

In further support of ground 1(b), counsel noted that the prosecution was not able to demonstrate when, during the period from 30 June to 2 July, the applicant inflicted the various soft tissue injuries on Elizabeth, and in what order those injuries were inflicted. Accordingly, the prosecution had contended that throughout the incident the applicant had the same continuous intent, namely, to cause Elizabeth really serious injury. However, counsel submitted, the prosecution could not exclude the possibility that a number of the injuries, inflicted by the applicant on Elizabeth, were accompanied by an intention that was less than an intent to cause really serious injury. Counsel noted that the prosecutor had accepted that some of the injuries (such as to the wrists, neck and nipples) may have been caused in the course of a consensual sexual act between the applicant and Elizabeth which ultimately went wrong. Thus, it was contended, the evidence revealed, at most, a varying level of intention by the applicant in respect of the injuries sustained by Elizabeth. Counsel further submitted that the evidence as to motive — comprising the past acts of violence by the applicant towards Elizabeth, and his jealousy of her — was not a basis upon which the jury could safely draw an inference of an intention by the applicant to cause Elizabeth really serious injury, at the time at which he inflicted the injuries on her.

In response, senior counsel for the respondent submitted that it was open to the jury to reject the hypothesis relied on by the defence at trial, namely, that having taken an overdose of GHB following the departure of the applicant, the deceased had fallen, striking her head against a hard surface, which resulted in her death. Counsel for the respondent submitted that that hypothetical scenario was inherently implausible. In particular, if the deceased remained conscious after the applicant had departed from the premises, it is unlikely that she would have refrained from contacting her family with her telephone. Further, the scenario relied on by the defence was entirely inconsistent with the crime scene evidence. The deceased was found face down on the floor, with her hands crossed above her head, her legs straight, and a sheet covering the lower part of her body. It was submitted that the only inference that could be drawn from that evidence was that the deceased had either been restrained and beaten while on the floor with her head pushed to the floor, or that having been beaten by the applicant, she was pushed or rolled onto the floor by the applicant.

In addition, counsel for the respondent pointed to the evidence of motive. The deceased had a sexual encounter with Christopher Belfiore on 15 June 2016. When the applicant became aware of that encounter, he assaulted Belfiore. There was evidence that the applicant was highly jealous of the deceased and controlling towards her, subjecting her to threats and physical intimidation.

Counsel for the respondent also pointed to the admissions that were made by the applicant after he had left the premises on 2 July. In particular, in his contacts with Reverend Webster, and Ms Dober, the applicant, in effect, admitted to losing control and badly injuring the deceased. Significantly, the applicant made a confession to Witness A, in Long Bay Correctional Centre in January 2017, that he had taken the deceased’s life. The jury was entitled to accept that confession and rely on it. Further, it was submitted, the jury was entitled to accept the opinion expressed by Dr Burke, namely, that death had resulted from the combination of the assaults inflicted by the applicant in the context of the ingestion by the deceased of GHB.

Counsel for the respondent contended that, taking that evidence in combination, the jury was entitled to be satisfied beyond reasonable doubt that the assaults inflicted by the applicant on the deceased had been a substantial and operative cause of her death.

Counsel further submitted that the evidence of a number of injuries sustained by the deceased, and the severity of the upper body injuries, including the repeated blows to her head, were relevant to the issue of intent. While Dr Burke had expressed the view that the degree of force that was necessary to inflict those injuries had been ‘moderate’, he explained that that description would apply to the type of trauma necessary to cause a broken rib through impact with a cricket bat. Counsel submitted that the jury was entitled to conclude that the numerous injuries had been inflicted by the applicant in the course of one continuous episode of violence, in circumstances in which he had subjected the deceased to a severe beating. In those circumstances, it was reasonably open to the jury to be satisfied that, in inflicting those injuries, the applicant had intended to cause her really serious injury.

Ground 1 — analysis and conclusions

Ground 1 is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that the court must allow an appeal if it is satisfied that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.

In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the applicant on the charge of murder.[1] In the context of ground 1(a) and ground 1(b), the questions, which will need to be determined, are, first, whether it was open to the jury to be satisfied beyond reasonable doubt that the actions of the applicant (specifically, the assaults that he inflicted on Elizabeth) caused her death, and, if so, secondly, whether it was open to the jury to be satisfied that, in performing those acts, the applicant intended to cause Elizabeth really serious injury.
[1]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); Pell v The Queen [2020] HCA 12, [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).

In determining those questions, the appellate court must give full weight to the principle that the jury was the body which was entrusted with the principal responsibility of determining the guilt or innocence of the accused person.[2] In performing that role, the jury, ordinarily, has the advantage of having observed the witnesses, and also of having aspects of the evidence explained to it in a visual form, whether by reference to the exhibits, or by physical demonstration undertaken in the witness box by a particular witness. In particular, in the present case, the jury had the advantage of having Dr Burke explain to it the nature and location of each of the soft tissue injuries described by him by reference to a book of photographs depicting those injuries.
[2]M (1994) 181 CLR 487, 492–3; R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (‘Baden-Clay’); Fennell v The Queen [2019] HCA 37, [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

Nevertheless, and giving appropriate weight to that consideration, it is the role of the appellate court to consider whether, based on the evidence, it was reasonably open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt. As the High Court recently stated in Pell v The Queen:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[3]

[3]Pell [2020] HCA 12, [39] (citations omitted).

The first question, under ground 1(a), is whether it was reasonably open to the jury to be satisfied, beyond reasonable doubt, that the actions of the applicant, in assaulting Elizabeth, caused her death. The principles, on the issue of causation, are now well established. In order that a jury be satisfied that the actions of an accused person caused the death of another, it is not necessary that those actions be the sole or principal cause of death of the victim, but the jury must be satisfied that the actions of the accused were a substantial and operative cause of death. In particular, it is open to a jury to be satisfied, beyond reasonable doubt, that the action of an accused person was a substantial and operative cause of the death of a victim, notwithstanding that the act of another person, or a particular circumstance, that was independent of the action of the accused, was also a substantial and operative cause of death. Thus, an action of an accused person may be considered to be a substantial and operative cause of the death of a victim, although it was not the immediate or most proximate cause of the victim’s death.[4]
[4]R v Evans (No 2) [1976] VR 523, 528–9 (Young CJ, Gillard and Anderson JJ); R v Rudebeck [1999] VSCA 155, [66] (Ormiston JA); R v Franklin (2001) 3 VR 9, 28–29 [54]–[56] (Brooking JA); R v Withers [2009] VSCA 306, [136] (Buchanan, Ashley and Weinberg JJA); Royall v The Queen (1991) 172 CLR 378, 411 (Deane and Dawson JJ); Swan v The Queen [2020] HCA 11, [24] (Bell, Keane, Nettle, Gordon and Edelman JJ).

The starting point, in considering ground 1(a), is that it was well open to the jury to be satisfied that, before the applicant departed the premises at about 5.00 pm on 2 July 2016, he had subjected Elizabeth to a serious and sustained assault, in which he had inflicted a number of injuries on her. While — as conceded by the prosecutor in her final address — some of the injuries may have been the result of consensual sex between the applicant and Elizabeth that had ‘gone wrong’, nevertheless it was well open to the jury to be satisfied that the injuries to Elizabeth’s head, face and upper torso were the result of a significant assault by the applicant on Elizabeth, in which he inflicted a number of blows to those parts of her body. The evidence before the jury demonstrated that the applicant was prone to becoming jealous of Elizabeth, and to reacting to that emotion with anger and aggression. There was evidence that before 30 June, he had acted in an aggressive and violent manner towards her. When the applicant spoke to Erin Dober later on the evening of 2 July, he admitted to her that he had lost control and seriously injured Elizabeth.

Further, it was well open to the jury to be satisfied that, at the time at which the applicant departed from the premises, Elizabeth was in a significantly debilitated physical state, lying prone on the floor in the position in which she was ultimately found by the police. The jury was entitled to exclude the hypothesis, put to a number of witnesses at the trial, that after the applicant had departed from the premises, Elizabeth consumed GHB, and in an intoxicated state injured her face and head by falling. The position in which Elizabeth was found by the police militated strongly against that proposition. It will be recalled that she was then face down, prone on the floor, with her arms crossed above her, and the lower part of her naked body covered by a sheet. After the applicant departed from the premises, Elizabeth did not seek any assistance from her father by telephone, nor did she answer her mobile telephone which was available to her. The evidence of Erin Dober and Reverend Webster supported the proposition that the applicant had left Elizabeth in a seriously injured physical condition. In particular, the evidence of Ms Dober, that the applicant told her that he had lost control and that his girlfriend was ‘pretty hurt’, further supported such a conclusion.

Accordingly, the jury was entitled to be satisfied that the applicant had become enraged with Elizabeth, and in doing so had inflicted a number of injuries to her head, face and back in particular, rendering her so debilitated that, when he departed from the premises, she was in the same position in which she was subsequently found deceased.

It was in that context that the jury was required to consider the competing views of Dr Burke and Professor Duflou. In particular, the jury had the opinion expressed by Dr Burke, an experienced forensic pathologist, that the cause of death was the effects of an assault on a woman using GHB. In expressing that view, Dr Burke acknowledged that a number of his colleagues would have concluded that the cause of death was unascertained, and that he would not have a ‘problem’ with such a diagnosis. One such colleague was Professor Duflou who, as we have discussed, considered that the cause of death in this case should be regarded as being ‘undetermined’. However, in expressing that opinion, Professor Duflou, in cross-examination, acknowledged that he did not exclude the possibility that Elizabeth died as a consequence of her physical injuries. In particular, he did not exclude the possibility that she died ‘purely’ as a result of her injuries, excluding any effect of the GHB. He also regarded as possible that the cause of death was a combination of an assault on a woman who was using GHB.

In the following passage in cross-examination, Professor Duflou repeated his acceptance of both of those propositions:

You’ve accepted that the injuries alone could have caused the death of this woman? – – – Potentially, yes.
And you’ve also accepted that the injuries in combination with the ingestion of GHB could have caused the death of this woman? – – – That is another possibility, yes.
Just investigating that second scenario, or exploring that second scenario which is that combination scenario. I’ll put it to you this way: GHB could have been ingested and that could have compromised the respiratory system? – – – Yes.
The assault could have resulted in the injuries that we see? – – – Yes.
And those injuries could have been caused at a time proximate to the ingestion of GHB? – – – Yes.
The victim could have fallen unconscious? – – – Yes. I just wanted to slightly modify that last answer because I think it’s fair to say that the laceration of the eyebrow occurred and then the deceased did not move to any significant extent as a result of the presence of the blood.
Okay, yes? – – – So that — to say proximate to that, just that little proviso there.
All right. No, I understand that. She could have been rendered unconscious? – – – As a result of?
HER HONOUR: You mean by that injury or just generally?
PROSECUTOR: Just generally? – – – She could have.
And she could have been in an unconscious state for a number of hours? – – – Yes.
Before she succumbed to death? – – – Yes.

Thus, while Dr Burke and Professor Duflou expressed different views as to whether a conclusion could be formed as to the cause of death, the opinions expressed by them were not diametrically opposed. Dr Burke stated his view — that the cause of death was the effects of the assaults on a woman who had taken GHB — acknowledging that a view, such as that expressed by Professor Duflou, was quite reasonable. On the other hand, while Professor Duflou considered that a conclusion could not be drawn as to the cause of death, he acknowledged that the combination of the injuries and ingestion of GHB by Elizabeth could have caused her death.

The principal difficulty, with the conclusion formed by Dr Burke, was the lack of any indicia of hypovolaemic shock. Dr Burke stated that he did not know of any other mechanism, by which soft tissue injuries could have caused death, other than by hypovolaemic shock. He acknowledged that none of the five recognised indicia, of that condition, could be detected on the autopsy. However, in re-examination, he stated that the lack of indicators of hypovolaemic shock did not preclude it from having occurred.

Professor Duflou also pointed to the absence of the usual indicators of hypovolaemic shock as militating against the conclusion that the soft tissue injuries had been a relevant cause of death. He also accepted that the absence of those indicators did not necessitate a conclusion that the soft tissue injuries could not have been a cause of death. In evidence-in-chief, when asked as to how the soft tissue injuries could have related to any cause of death, he stated:

That’s a very hard question to answer. There’s certainly a large number of soft tissue injuries and you have to wonder did they in some way contribute to death. Could they potentially have caused death? I’m not excluding that as possibilities. It’s possible. But if that’s the case you’ve then got to say as well that there aren’t any signs of a lack of a loss of a significant amount of blood through internal bleeding into tissues because the autopsy findings just weren’t there. So how do we explain that? You’ve got essentially two options available. One is that there wasn’t sufficient blood loss to have a significant life-threatening effect on the body. Or alternatively, you can say, well, maybe this is one of those cases where hypovolaemia, a lack of blood in the blood system, just didn’t really show up well enough at post-mortem. It’s one of those cases where it was there but it just wasn’t identified. I must say again I have a bit of a problem with that but is it possible that there might have been hypovolaemia here? It’s possible. But it’s not one that I favour.

I think in your report, and I quoted it to Dr Burke, you said the evidence was equivocal? – – – Yes, I believe it is. And I’d like to emphasise, I’m not excluding it out of hand at all.

Similarly, in cross-examination, Professor Duflou stated that while he would expect to see indicators of hypovolaemia at post-mortem, such indicators may not be present ‘in isolated cases’ of that condition.

Apart from the effects of the physical injuries occasioned to Elizabeth, the only other possible cause of death, discussed by the expert witnesses, was the ingestion by Elizabeth of a quantity of GHB. In cross-examination, Dr Burke agreed that the consumption of GHB, in isolation, was a possible cause of death. He agreed that higher doses of that substance can lead to cardiorespiratory depression which can result in death. Professor Duflou agreed with that proposition, albeit with the qualification that that would be so ‘if there was nothing else’. Relevantly, Professor Duflou did not, in his evidence, advance the proposition that the ingestion of GHB alone could have been the cause of Elizabeth’s death.

As we observed earlier, the evidence of the pathologists and Mr Kotsos fell to be considered by the jury in the context of the circumstantial evidence in the case. In particular, as we have discussed, the jury was entitled to conclude that before the applicant departed the premises at 5.00 pm on 2 July, he had subjected Elizabeth to a severe and repeated beating, in which she had sustained a number of soft tissue injuries, in particular to her back, head and face. The jury was also entitled to conclude that as a consequence of those injuries, she was left in a severely debilitated state lying in the position in which she was ultimately found deceased by the police on 5 July. It was in that context that the jury was required to consider the competing views of Dr Burke and Professor Duflou. In particular, the jury had the expert opinion of Dr Burke that the soft tissue injuries, combined with the effects of the GHB, caused Elizabeth’s death. Professor Duflou did not contradict that evidence, but he preferred the opinion that no concluded view could be reached concerning the cause of death. However, in doing so, he acknowledged that it was possible that the combined effects of the soft tissue injuries and the ingestion of GHB had resulted in death.

While both pathologists accepted that it was possible that the effects of GHB, alone, resulted in Elizabeth’s death, neither concluded that the ingestion of GHB alone caused her death. Dr Burke’s conclusion was that Elizabeth’s death was not caused by the ingestion of GHB alone, but was the ‘consequence of an assault on a woman using GHB’. Moreover, at the risk of repetition, the evidence of the pathologists was to be considered by the jury in the context of the circumstantial evidence to which we have just referred. In particular, the jury had before it evidence, by way of admission by the applicant, that he had lost control and seriously injured Elizabeth. In considering causation as an exercise of common sense, and based on the evidence, it was open to the jury to exclude as a reasonable possibility that Elizabeth’s death was caused by the ingestion of GHB alone and to be satisfied, beyond reasonable doubt, that the injuries inflicted by the applicant on Elizabeth were a substantial and operative cause of her death, even if the ingestion by her of GHB had had a relevant causative effect.

That conclusion, then, brings us to the issue raised under ground 1(b), namely, whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that in inflicting the blows which caused the death of Elizabeth, the applicant intended to cause her really serious injury. In that respect, we note that, while at the commencement of the trial, the prosecutor opened to the jury on the basis that the applicant had intended to either kill Elizabeth or cause her really serious injury, in the course of the trial, and in final address, the prosecutor accepted that it was not open to the jury to conclude, on the evidence, that the applicant had an intention to kill Elizabeth. Thus, the question that arises is whether it was open to the jury to be satisfied beyond reasonable doubt that, at the relevant time, the applicant intended to cause Elizabeth really serious injury.

In support of the jury’s verdict on that issue, counsel for the respondent relied, first, on the nature and extent of the injuries inflicted by the applicant on Elizabeth, secondly, on the evidence of motive, and, thirdly, on admissions made by the applicant to Ms Dober, Reverend Webster and Witness A.

The question, then, is whether it was reasonably open to the jury to conclude, from that evidence, that the only reasonable inference was that, in inflicting the injuries on Elizabeth from which she died, the applicant thereby intended to cause her really serious injury.

We turn, first, to the injuries. As discussed, there was a significant number of injuries inflicted by the applicant on Elizabeth. The most relevant, in terms of causation, were those to her back, head and face. Dr Burke stated that the degree of force that was required to inflict each of those injuries was no more than moderate, although he stated that such a degree of force would encompass the fracture of a person’s rib by assault with a cricket bat. While there was extensive bruising to the scalp, none of the blows inflicted to Elizabeth’s head resulted in any underlying haematoma or fracture. The injury to the brain was described as being particularly mild. Apart from the fracture of the nose, there was no other fracture or injury to the facial bones, other than underlying bruising. Mr Wilms had observed Elizabeth with apparent black eyes on 26 June, and thus the prosecution could not exclude the reasonable possibility that the fracture of the nose occurred at that time. The injuries to the back were the result of multiple applications of blunt force trauma. They caused extensive underlying bruising, but, again, there was no damage to the skeleton or underlying structures.

Certainly, the multiple applications of blunt force by the applicant to Elizabeth’s head, face and back bespoke an intention by him to injure her, and the jury could well have concluded that the intention was to inflict serious injury. However, given the relatively superficial nature of her injuries, we do not consider that it was open to the jury to consider that the only reasonable inference, available from the injuries, was that the applicant inflicted them with the intention of causing her really serious injury. In addition, it is reasonably possible that the injuries were not all inflicted in the course of the one bout of violence, but were caused over a period of time. In those circumstances, as counsel for the applicant submitted, it would not be possible to exclude the hypothesis that a number of them had been inflicted with an intention that was less than an intent to cause Elizabeth really serious injury.

The second factor, relied on by the respondent, was the evidence of motive. The evidence of Mr Belfiore, Mr Barlow and Mr Allen demonstrated that the applicant was jealous and quite paranoid about Elizabeth, and that those emotions were prone to arouse violent anger in him towards her. There was evidence that the applicant had assaulted Elizabeth on more than one occasion before the critical period of 30 June to 2 July. That evidence bespoke a readiness by the applicant to resort to violence and to inflict injury and harm on Elizabeth. However, logically, it did not of itself, or in combination with the other matters relied on by the respondent, bespeak an intention to cause her really serious injury. In other words, there was nothing about the motive from which it might be concluded, beyond reasonable doubt, that it was so intense that the applicant had vented his rage towards Elizabeth with the intention of thereby inflicting really serious injury to her.

The principal evidence relied on by the respondent, on the issue of intention, was admissions made by the applicant, particularly to Witness A. Indeed, as senior counsel for the applicant has noted, in the course of a no case submission at trial, the judge twice expressed the view that if not for the evidence of Witness A, she would have concluded that the defence had no case to answer on the charge of murder.

On this issue, we do not consider that the admissions made by the applicant to Reverend Webster or to Ms Dober constituted evidence alone, or in combination with the other evidence, on the basis of which the jury could have been satisfied, beyond reasonable doubt, that the applicant intended to cause Elizabeth really serious injury. When communicating with each witness, the applicant expressed real concern as to the harm that he may have caused to Elizabeth. He went so far as to admit to Ms Dober that he had lost control. However, that evidence did not include an admission by him, either express or implied, that when he inflicted the injuries on Elizabeth, he had done so with the intention of causing her really serious injury.

We turn, then, to the evidence of Witness A. In our view, the jury could not reasonably conclude, from the evidence of Witness A, that the applicant had intended to cause really serious injury to Elizabeth. We are of that view for two reasons. First, even accepting the evidence of Witness A, his evidence did not constitute an admission by the applicant that, at the time at which he inflicted the injuries on Elizabeth as a result of which she died, he then intended to cause her really serious injury. Rather, taken at its highest, the admission that he made to Witness A was that as a result of causing her death, he had enjoyed or experienced a significant and unforgettable rush of adrenalin. The applicant did not admit to Witness A, either expressly or impliedly, that, when he assaulted Elizabeth, he had intended to cause her death, or to inflict really serious injury on her, for that purpose.

Secondly, we agree with the submission made by senior counsel for the applicant that, when the evidence of Witness A is properly scrutinised, a jury could not reasonably have concluded that that evidence was either truthful or reliable.

In reaching that conclusion, we acknowledge that the assessment and credibility of a particular witness is essentially a matter for the jury, which had the advantage of viewing and listening to his evidence in the atmosphere and context of the trial. However, as the High Court made clear in Pell, that proposition does not preclude the assessment by the appellate court of the evidence given by that witness. In particular, although the jury might have accepted Witness A to be credible and reliable, this Court must examine the record to determine whether, in view of the matters relied on by counsel for the applicant, it is demonstrated that the jury, acting rationally, ought not to have been so satisfied as to the truthfulness and reliability of his evidence.

In the present case, there were a multiplicity of reasons why, we consider, the jury could not reasonably have accepted and relied on the evidence of Witness A.

The first and foremost reason concerns the circumstances in which Witness A made his statement to the police. Witness A said that he had initial conversations with the applicant in Long Bay Correctional Centre on 30 January and 31 January 2017. At that point, the applicant did not make any relevant admission to him. Yet for some reason he saw fit to contact Crime Stoppers, and to speak to the police. He then made a statement to the informant, Senior Constable Farrell, on 15 February. Witness A said that, subsequent to making that statement, he had the conversations with the applicant, in which the latter made the critical admissions to him that he had had a rush of adrenalin as a result of killing Elizabeth. Then, on 16 March, Witness A made a second statement to the police, but he did not include in it those admissions. He omitted to do so. Six days later, he came before the Serious Offenders Review Council. His application to that council was, in effect, unsuccessful. As a result, he was unable to access a course which would have entitled him to apply for release on parole. He then contacted the informant on 11 April, and made a further statement to him, this time including in it the admissions upon which the prosecution relied. His explanation, for not including those admissions in his second statement on 16 March, lacked credibility. Notably, at the time that he further contacted Senior Constable Farrell on 11 April, he was seeking then the assistance of the informant with his application to the Review Council.

Further, in cross-examination, Witness A was demonstrated to be a serial liar. He contradicted himself, and told a number of lies, concerning the very serious offence for which he was then serving a sentence. It was revealed, in cross-examination, that he had told a number of lies in his interview with the police concerning that offence. Of itself, the offending for which he had received a sentence demonstrated him to be a person of very low credibility.

Over and above those difficulties, was the issue concerning the circumstances in which Witness A claimed that the applicant made the relevant admissions to him. At the time, Witness A and the applicant were located in different divisions of the prison. There was a wall between them. They could only communicate through a grate, which was close to the location of a number of prison guards, and other prisoners. Put shortly, the circumstances, in which the admissions were said to have been made, were quite implausible.

Finally, the admissions attributed to the applicant by Witness A were entirely at odds with the applicant’s communications to Reverend Webster and his conversations with Ms Dober. In those communications, the applicant had expressed regret and remorse for, in effect, losing control. The evidence of Witness A, that the applicant had derived great excitement from causing Elizabeth’s death, was fundamentally inconsistent with that evidence.

The evidence of Witness A was evidence which, under s 31 of the Jury Directions Act 2015 (and at common law), was of a kind that might be unreliable. Taking into account the necessary caution with which the evidence of such a witness must be examined, we consider that, in light of each of the matters which we have discussed, the jury could not reasonably have accepted or relied on any of the evidence given by Witness A as to the admissions that he claimed had been made to him by the applicant.

For those reasons, we do not consider that the evidence, relied on by the prosecution at trial, and by the respondent on this appeal, was such that the jury, acting rationally, could be satisfied beyond reasonable doubt that, at the time at which he inflicted the injuries that caused the death of Elizabeth, the applicant had thereby intended to cause her really serious injury. As discussed, we do not consider that the evidence as to the nature and extent of the injuries, the evidence of motive, or the admission evidence, whether individually, or taken in combination, was such as to constitute a rational basis upon which the jury could have been satisfied, beyond reasonable doubt, as to that element of the charge of murder.

On this application, senior counsel for the applicant accepted that if we reach the conclusions, first, that it was open to the jury to be satisfied beyond reasonable doubt that the injuries inflicted by the applicant on Elizabeth caused her death, but, secondly, that the jury could not have been reasonably satisfied that the applicant inflicted those injuries with the intention of causing Elizabeth really serious injury, the Court should set aside the conviction of the applicant on murder, and substitute a verdict of guilty of manslaughter pursuant to s 277(1)(c) of the Criminal Procedure Act.

In our view, that concession is correctly made for two reasons. First, in light of our conclusions in respect of ground 1(a), the jury was bound to conclude that the applicant caused the death of Elizabeth by an unlawful and dangerous act or by unlawful and dangerous acts. Plainly, the blows inflicted by him on her were criminal assaults. Further, as discussed, in assaulting Elizabeth, the applicant inflicted multiple blows to her head, face and back. It was, in our view, inevitable that the jury would conclude that in those circumstances a reasonable person in the position of the applicant, in performing the acts that caused those injuries, would have realised that he or she was exposing Elizabeth to an appreciable risk of serious injury.[5]
[5]Wilson v The Queen (1992) 174 CLR 313, 332–3 (Mason CJ, Toohey, Gaudron and McHugh JJ); R v Holzer [1968] VR 481, 482 (Smith J).

Secondly, it was correctly accepted by counsel for the applicant that the actions of the applicant, in leaving Elizabeth lying in the premises in a severely debilitated state, and in refraining from obtaining any appropriate medical or other assistance for her, constituted criminal negligence for the purpose of the offence of manslaughter. As we have concluded, the evidence demonstrated that when the applicant departed the premises, Elizabeth was prone on the floor, badly beaten, in the position in which she was ultimately found deceased by the police. The evidence of Reverend Webster and Ms Dober demonstrates that the applicant was well aware that Elizabeth was in need of assistance and treatment. However, although he expressed some concerns relating to her condition, he did not take any steps to obtain that assistance. Rather, having subjected her to a beating, he left her helpless on the floor. In those circumstances, it was, we consider, inevitable that the jury would have been satisfied that the actions of the applicant fell so far short of the standard of care which a reasonable person would have exercised in the circumstances, and involved such a high risk that death or really serious bodily injury would ensue to Elizabeth, as to merit criminal punishment.[6]
[6]R v Lavender (2005) 222 CLR 67, 72–7 [14], 87–8 [60]–[62] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

For those reasons, we have concluded, first, that it was open to the jury to be satisfied, beyond reasonable doubt, that the injuries resulting from the assaults by the applicant on Elizabeth Wilms were a substantial and operative cause of her death, and, secondly, that it was not open to the jury to be satisfied, beyond reasonable doubt, that, in inflicting those injuries, the applicant had intended to kill Elizabeth, or to cause her really serious injury. Accordingly, we would not uphold ground 1(a), but we uphold ground 1(b). As discussed, we would substitute a conviction of manslaughter for the jury’s verdict, and the applicant’s conviction, of murder.

Ground 2

Ground 2 is directed to the evidence of four witnesses, called on behalf of the prosecution, concerning the disablement of the CCTV footage at the premises between 11.30 am and 2.30 pm on 2 July 2016.

Before the commencement of the trial, the prosecution had filed a notice of incriminating conduct in respect of a number of items of evidence relating to the conduct of the applicant on and after 2 July 2016. One of the items of evidence, on which the prosecution sought to rely in that respect, was the above evidence as to the disablement of the CCTV footage.

That evidence had been the subject of a voir dire and argument before the empanelment of the jury. At that point, the judge ruled that the prosecution be permitted to lead the evidence as to the disablement of the CCTV footage and as to the possible mechanisms by which it could be turned off, but that the prosecutor should not, in opening that evidence, introduce it as evidence of incriminating conduct. Her Honour deferred determining whether the evidence could be used by the prosecution, for that purpose, until after the evidence had been led.

Accordingly, in her opening to the jury, the prosecutor briefly referred to the fact that the CCTV system ‘went down’ at 11.30 am on 2 July, and it recommenced three hours later at 2.30 pm. Subsequently, in the course of the prosecution case, but before the evidence on that topic was adduced, defence counsel again objected to the introduction of that evidence. The judge adhered to her earlier ruling that the evidence may be adduced, and that a decision would be made, subsequently, as to whether the prosecution might be permitted to rely on it as incriminating conduct. Ultimately, at the close of the prosecution case, the prosecutor accepted that she could not rely on the disablement of the CCTV footage as incriminating conduct in respect of the murder charge. Consequently, in her final address, the prosecutor told the jury that the sole relevance of that evidence was that it established the ‘chronology of 2 July’, so that, accordingly, it was of ‘very minimal relevance’.

In her charge to the jury, the judge directed the jury that it should disregard that evidence. Her Honour noted that there were a number of possible explanations for the gap in the CCTV footage and that it was not possible on the evidence to determine why that gap had occurred. The judge therefore directed the jury ‘as a matter of law’ that it was not permitted to speculate why there was no footage, and that the jury should put that evidence ‘to one side’.

The point raised by ground 2 is that, notwithstanding that direction by the judge, in view of the nature and extent of the evidence that was called by the prosecution as to the potential causes of the disablement of the CCTV footage, there was a significant risk that the jury might have engaged in impermissible speculation in a manner that was prejudicial to the applicant.

The evidence, on the topic of the disablement of the CCTV footage, was given by four witnesses who were called immediately after the evidence of Reverend Webster and Ms Dober.

Mr Suresh Damani, a technical support lead with CityPower Powercor, gave evidence that he had searched business records and ascertained that there had been no power outages to customers in Kew between 28 June and 6 July 2016.

Mr Stuart Rainsford, the chief operating officer of Momentum Energy, consulted the records of his company relating to the consumption of electricity at the premises between 1 July and 31 July 2016. Mr Rainsford gave evidence that the electricity Smart meter at the premises had recorded no consumption between 11.30 am and 12.30 pm on 2 July, and minimal consumption for the following one and a half hours (until 2.00 pm), which was consistent with either the mains of electricity supply being interrupted or disconnected during that time, or a circuit breaker having come into operation at the premises.

Mr Andras Hazi was a forensic officer at the Victorian Police Forensic Services Department, who specialised in the audio visual unit of that department. Mr Hazi had been tasked to recover footage from the CCTV recording system at the premises, and having done so he ascertained that there was a gap in the footage from 11.30 am until 2.30 pm on 2 July 2016. Mr Hazi inspected the original CCTV recorder and the log files. His examination revealed that the system had lost power at 11.30 am and that power had subsequently been restored to it at 2.30 pm on 2 July. The footage, before and after that interval, provided no indication as to how the power supply had been interrupted and restored. In particular, Mr Hazi was unable to find any indication as to how the power was lost. He said the power was cut either going into the CCTV system or at the switch on the CCTV system.

Mr Michael Miskulin, an enforcement officer with Energy Safe Victoria, attended the premises in February 2017 in order to examine the electrical wiring system at the premises. He said that there were two discrete electrical power supplies, one to the commercial premises (the shop), and one to the domestic dwelling. He considered that there were three potential explanations why the electricity consumption with the domestic dwelling power supply had been reduced, while the electricity meter was still available. First, the main isolation switch had been turned off to reduce all consumption within the dwelling. The second possibility was that the circuit breaker, which was specific to the CCTV, had been turned off. The third possibility was that all the electrical equipment had been switched off at each power point, or pulled out of each power point.

It is clear that the evidence, that was adduced by the prosecution, from those four witnesses, was directed not only to establishing the lack of CCTV footage for the period of 11.30 am to 2.30 pm on 2 July. Plainly, it was directed to establish a reason for the absence of that footage, that reason being relevant to an aspect of the prosecution case. Relevantly, the evidence that was adduced in the context of other evidence of the removal by the applicant of items from the premises, including a large suitcase and two other bags. Evidence was also adduced as to the subsequent finding of two laptops, belonging to the applicant, at the Warrnambool Reserve. The informant analysed the data on those two laptops, which indicated that the applicant had made searches on topics concerning a ‘cheating’ partner, and that he had searched for the location where Mr Belfiore had been assaulted by him.

In that way, and in the absence of an appropriate direction from the judge, there was, we consider, a material risk that the jury might have engaged in impermissible reasoning that the applicant had disabled the CCTV footage, and that his conduct in doing so was in some way incriminatory of him. At the conclusion of the evidence, it was correctly recognised by the prosecution that the evidence was insufficient to permit it to rely on the evidence for those purposes.

Accordingly, there was substance in the objection made by the defence to the evidence of the witnesses relating to the gap in the CCTV footage. However, and importantly, at no point did the prosecution put to the jury that the evidence could or should be used by it as evidence of incriminating conduct by the applicant. As we have mentioned, in her final address to the jury, the prosecutor told the jury that the only relevance of the evidence was to establish the ‘chronology’ of 2 July.

Importantly, the judge gave a clear and specific direction to the jury that it should not rely on the evidence, and her Honour explained to the jury why it was of no probative value. In particular, the judge told the jury that there were a number of possible explanations for the time gap and that it was not possible on the evidence to determine why it occurred. She also explained that sometimes in criminal trials evidence is led which ‘ends up going nowhere’, and that that is what had occurred with the evidence in the present case. Accordingly, the judge gave the jury a direction ‘as a matter of law’ that it was not ‘allowed’ to speculate about why there was no footage.

The evidence, as to the gap in the CCTV footage, occupied a relatively small part of the prosecution case. It was confined to the four witnesses who we have mentioned. The only witness, who gave evidence of any length, was Mr Hazi. In the context of the totality of the evidence in the trial, we are satisfied that the direction given by the judge to the jury was sufficient to allay any impermissible speculation by the jury as to the possible reason for the gap in the CCTV footage. We do not consider that the evidence in relation to that topic was such as to induce the jury to disregard or ignore the judge’s direction. It is the expectation, and experience, of the law, that ordinarily juries are astute to observe and adhere to directions of the kind given by the judge in this case.

For those reasons, while we are well persuaded that the evidence, of the four witnesses, as to the gap in the CCTV footage, was inadmissible, we have reached the conclusion that the evidence did not result in any unfair prejudice to the applicant, and that it did not occasion a substantial miscarriage of justice in the trial. Accordingly, ground 2 must fail.

Summary of conclusions

For the foregoing reasons, we have reached the following conclusions:

(1)We do not uphold ground 1(a). It was open to the jury to be satisfied beyond reasonable doubt that the actions of the applicant, in assaulting Elizabeth, were a substantial and operative cause of her death.
(2)We uphold ground 1(b). It was not reasonably open to the jury to be satisfied, beyond reasonable doubt, that in assaulting Elizabeth, the applicant intended to cause her really serious injury.
(3)We do not uphold ground 2. We are not persuaded that the evidence, concerning the disruption to the CCTV footage at the premises on 2 July, resulted in a substantial miscarriage of justice.
(4)In view of our conclusions in respect of ground 1(b), and for the reasons we have outlined, we are persuaded that the jury must have been satisfied of facts that proved that the applicant was guilty of the manslaughter of Elizabeth Wilms by an unlawful and dangerous act (and, further, that he was guilty of causing her death by criminal negligence).

Accordingly, we shall make the following orders:

(1)The applicant be granted leave to appeal against conviction.
(2)The appeal against conviction is allowed.
(3)The verdict entered against the applicant and the applicant’s conviction of murder are quashed and the applicant’s sentence imposed on 14 December 2018 is set aside.
(4)In lieu, pursuant to s 277(1)(c) of the Criminal Procedure Act, the applicant be convicted of the manslaughter of Elizabeth Wilms between 30 June and 2 July 2016.

Upon delivery of judgment, we shall discuss with counsel the appropriate means by which the applicant might be sentenced for manslaughter.

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Alexander Freeburn v The Queen [2020] VSCA 155

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[2020] VSCA 155

17 June 2020