Heijne v The State of Western Australia - [2010] WASCA 86

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HEIJNE -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 86

CORAM: MARTIN CJ
OWEN JA
BUSS JA

HEARD: 11 MARCH 2010

DELIVERED : 11 MAY 2010

FILE NO/S: CACR 92 of 2009

BETWEEN: GERARDUS GERRIT HEIJNE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
File No  :INS 17 of 2008

Catchwords:

Criminal law - Appeal on conviction for murder - Whether failure to direct on s 248 and s 249 of the Criminal Code as possible defences - Whether verdict of guilty to murder unreasonable due to insufficient evidence of accused's intent to cause grievous bodily harm - Whether trial judge's direction to jury unbalanced - Whether trial judge failed to adequately explain law governing offence of murder - Obligations of trial judge in direction to jury generally

Legislation:

Criminal Code (Qld)
Criminal Code (WA), s 248, s 249, s 279
Criminal Law Amendment (Homicide) Act 2008 (WA)

Result:

Leave to appeal for ground 1 allowed
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr D Grace QC
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
M v R [1994] HCA 63; (1994) 181 CLR 487
Marwey v The Queen [1977] HCA 68; (1977) 138 CLR 630
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183
R v Ellem (No 2) [1995] 1 Qd R 549
R v Grey (1998) 98 A Crim R 589
R v Muratovic [1967] Qd R 15
R v Pangilinan [1999] QCA 528; [2001] 1 Qd R 56
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
The Queen v Craggs (Unreported, QCA, Library No. 213 of 1995)
The State of Western Australia v Pollock [2009] WASCA 96
Van den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158
Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88
Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645

MARTIN CJ:

Introduction

The appellant, Gerardus Gerrit Heijne, was tried by a judge and jury on an indictment which alleged that on or about 3 January 2008 at East Perth he had wilfully murdered Frank Cianciosi, or in the alternative, on the same date and at the same place had murdered Mr Cianciosi. He was acquitted on the count of wilful murder, but convicted on the alternative count of murder. He appeals from that conviction. It is appropriate to provide the context for a consideration of the grounds of appeal with a brief overview of the respective cases advanced by the prosecution and the defence.

The prosecution case

Mr Heijne and Mr Cianciosi had been partners in an intimate personal relationship which had subsisted for nearly 25 years at the time of Mr Cianciosi's death. Their relationship commenced when both were quite young - Mr Heijne being about 18 years of age and Mr Cianciosi about 24 years of age. They had lived together for almost all their relationship. They were living together in an apartment in East Perth at the time of Mr Cianciosi's death, although they were sleeping in separate bedrooms.
They were also partners in business. Together they had acquired the master franchise for Western Australia for a retail business selling chicken products. That business had been successful, and generated substantial profits for Mr Heijne and Mr Cianciosi.
The prosecution case was that the relationship between Mr Heijne and Mr Cianciosi deteriorated during the second half of 2007 for a number of reasons including, most particularly, the development of a relationship between Mr Heijne and a young man of 19 years of age who was employed in the chicken business. Publication of that man's name has been suppressed, and he was described during argument on the appeal as Mr X. I will retain that description in these reasons.
The State's case was that Mr X was initially employed working in suburban retail outlets of the chicken business. In August 2006 he was transferred to the head office of the business, where he came into regular contact with Mr Heijne, and less frequent contact with Mr Cianciosi. In about September 2007, Mr X took over running one of the suburban retail outlets of the business.
The State's case was that it was about this time that Mr Heijne made advances of a personal nature towards Mr X. The evidence of Mr X was that he initially rejected those advances. However, Mr Heijne persisted with his advances and, during October 2007, persuaded Mr X to move into the apartment, which he and Mr Cianciosi occupied, for about three weeks while Mr Cianciosi was overseas. Mr Heijne's evidence was that during this period he had a sexual relationship with Mr X, although Mr X denied that in evidence.
At all events, Mr Heijne asked Mr X to leave the apartment before Mr Cianciosi returned from his overseas trip.
The prosecution case was that after Mr Cianciosi's return, Mr Heijne continued to pursue the relationship with Mr X, while at the same time his relationship with Mr Cianciosi deteriorated. The State led evidence to the effect that Mr Heijne caused the company through which the chicken business was conducted to acquire a valuable motor vehicle to give to Mr X, and on the day of Mr Cianciosi's death, purchased clothing and a laptop computer for Mr X. The State also led evidence of a deterioration in the relationship between Mr Heijne and Mr Cianciosi over business matters.
The State's case was that shortly before Mr Cianciosi's death, Mr Heijne offered Mr X a position as his personal assistant on a substantial salary, but on condition that they also maintained a personal relationship for a period of time.
The State's case was that at some time during the evening of 3 January 2008, Mr Heijne strangled Mr Cianciosi in a bedroom in their East Perth apartment. The State led evidence to the effect that early the following morning, around 5 am or 5.30 am, Mr Heijne travelled to where Mr X was living in Scarborough and, after waking Mr X by knocking softly on the window, joined Mr X in his bedroom. The State led evidence to the effect that Mr Heijne said to Mr X that he thought he had killed Mr Cianciosi by strangling him, and demonstrated to Mr X how he had done it.
The State also led evidence to the effect that later that morning, Mr Heijne met with Mr Jason Mitchell, an employee of the chicken business. Mr Mitchell's evidence was that Mr Heijne told him that Mr Cianciosi was dead and in the East Perth apartment. Mr Mitchell said that he questioned Mr Heijne, who assured him that he knew that Mr Cianciosi was dead because he had checked his pulse. Mr Mitchell also gave evidence to the effect that Mr Heijne had demonstrated a strangling motion which he had applied to Mr Cianciosi.
The State also led forensic evidence of the extent of the injuries suffered by Mr Cianciosi. The forensic pathologist called by the State to give evidence of those injuries, Dr McCreath, gave evidence to the effect that the injuries were consistent with death by strangulation which, in her view, was the most likely cause of death. It will be necessary to refer in greater detail to the evidence given by Dr McCreath in the context of a number of the grounds of appeal.
Evidence was also given from police investigators in relation to blood stains found in the East Perth apartment. DNA testing showed that most of the blood was consistent with Mr Cianciosi's DNA profile, although a small amount was consistent with Mr Heijne's DNA profile. Some of the blood was on the bed on which Mr Cianciosi's body was found. The State's case was that the location and configuration of the body, when compared to the blood stains, showed that it had been moved after Mr Cianciosi's death. A shirt was found in the laundry in the apartment which also bore blood stains and from which three buttons had been ripped. Those buttons were found in the bedroom in which Mr Cianciosi's body was located. The State asserted, and Mr Heijne accepted in his evidence, that he had been wearing the shirt from which the buttons were ripped during the course of an altercation between Mr Heijne and Mr Cianciosi.
The prosecution also relied upon evidence of statements made by Mr Heijne to Gino Stefani following his arrest. Mr Stefani's evidence was that Mr Heijne had suggested to him that Mr X was involved in Mr Cianciosi's death. The State asserted that those statements were lies which provided evidence of consciousness of guilt.

The defence case

Mr Heijne gave evidence. His evidence was that although he had enjoyed a sexual relationship with Mr X, he remained committed to his long‑term relationship with Mr Cianciosi. However, he gave evidence to the effect that on 3 January 2008, he and Mr Cianciosi had an argument about work, after which Mr Cianciosi struck him on the right side of his face with the back of his right hand. That led to an altercation and scuffle in the course of which Mr Heijne applied his hand to Mr Cianciosi's throat. Mr Heijne discovered at the end of the scuffle that Mr Cianciosi was dead. Mr Heijne also gave evidence of previous occasions upon which he had been assaulted by Mr Cianciosi. Mr Heijne's evidence of those assaults, and the circumstances surrounding Mr Cianciosi's death will be considered in more detail in the context of the specific grounds of appeal.
Mr Heijne's evidence was to the effect that these events occurred in the early afternoon, after which he went shopping with Mr X. In general terms, he accepted that he made the statements attributed to him by each of Mr X and Mr Mitchell in relation to the death of Mr Cianciosi, although he denied ever demonstrating a strangling motion or applying both hands to the throat of Mr Cianciosi.
Mr Heijne's evidence was to the effect that he had been quite open with Mr Cianciosi about his sexual relationship with Mr X, as he had been in relation to his sexual relationship with others during the course of his long relationship with Mr Cianciosi. His evidence was that Mr Cianciosi's only concern about the relationship arose from the fact that Mr X was an employee. His evidence was that he was entirely content in his long‑term relationship with Mr Cianciosi, and had no desire to terminate that relationship. He denied any intention of giving a motor vehicle to Mr X. He expressly denied any intention to kill Mr Cianciosi or to cause him serious injury. He stated that his intention during the struggle was:
To stop what was going on, to stop him from hitting me and to stop things from - I was trying to stop the fight from getting worse. I just wanted to settle him down. That's all. (ts 1275)
The defence case put to the jury was that the State had failed to prove that Mr Heijne's acts caused the death of Mr Cianciosi, on the basis that Dr McCreath's evidence did not exclude the possibility that Mr Cianciosi had died of a heart attack and was not caused by strangulation. The defence further asserted that the State had failed to prove that Mr Heijne had a motive to kill Mr Cianciosi or that, at the time of the struggle, he had any intention to kill Mr Cianciosi or to cause him serious or life‑threatening injury. The defence also relied upon self‑defence against an unprovoked assault. Reliance upon the statutory provision relating to self‑defence against a provoked assault was expressly disavowed by counsel for Mr Heijne. Although counsel for Mr Heijne did not put the defence of provocation to the jury, he agreed that the defence should be put to the jury (ts 1449).

The grounds of appeal

The grounds of appeal (as finalised during the hearing of the appeal) can be conveniently grouped, and considered, in two categories, namely, those concerned with self-defence, and those concerned with the evidence and directions on the subject of causation and intent.

Self-defence - grounds 2 and 3

The appellant asserts that the trial judge erred by failing to direct the jury as to the availability of defences under the second limb of s 248 of the Criminal Code (WA) (the Code), and s 249 of the Code, in grounds 2 and 3 respectively.
Section 248 and s 249 of the Code, as they were at the time of the alleged offence, have now been repealed and replaced in quite different terms by the Criminal Law Amendment (Homicide) Act 2008 (WA). However, by virtue of the transitional provisions in that legislation, the amendments only apply to offences committed after the date the amendment act came into force, which was 1 August 2008. Accordingly, this appeal is governed by the provisions as they were prior to the amendments in 2008. It is convenient to set out those provisions in full:
248. Self‑defence against unprovoked assault
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.
249. Self‑defence against provoked assault
When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous bodily harm to use force in self‑defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first began the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.

First limb of s 248

The trial judge directed the jury as to the potential availability of the defence provided by the first paragraph of s 248. No complaint is made in respect of the directions given.

Second limb of s 248

During the trial, and before the closing addresses of counsel, defence counsel submitted that the trial judge should direct the jury in respect of the availability of a defence under the second paragraph of s 248. The trial judge rejected that submission, but indicated that he would review the matter if a subsequent application was made (ts 1446). No such application was made.
As I have mentioned, circumstantial evidence as to the events which resulted in the death of Mr Cianciosi was led in the form of the observations made and items found at the scene, and the pathological evidence of the injuries suffered by Mr Cianciosi. Detailed consideration will be given to the latter evidence in the context of the second group of grounds of appeal. The only direct evidence as to the events which preceded the death of Mr Cianciosi was that given by Mr Heijne. His evidence was that when they awoke on the morning of 3 January 2008, he and Mr Cianciosi had a chat over a cup of coffee (ts 1203). Mr Cianciosi stated that he was feeling very tired. Mr Heijne responded that instead of going to work, Mr Cianciosi should stay home and go to bed for a couple of hours and come into work later. Mr Cianciosi agreed. Mr Heijne then left for work.
Mr Heijne's evidence was that during the morning, he called Mr Cianciosi and asked him to come into the office to help him print out the financial figures for each franchise store off the computer (ts 1206). Mr Heijne's evidence was that he was unable to perform that function himself, and needed the figures to prepare for appointments he had made with franchisees in the next week. According to Mr Heijne, Mr Cianciosi stated that he would come into work, but did not come. On his evidence, there was a telephone conversation later that morning in which Mr Heijne repeated his request to Mr Cianciosi. However, Mr Cianciosi declined to come in, and invited Mr Heijne to return to the apartment 'to get into bed' (ts 1207).
Mr Heijne stated that he then travelled to the apartment, not with the intention of getting into bed, but with the intention of getting Mr Cianciosi out of bed and into the office.
Mr Heijne stated that he travelled to the apartment at about 12.30 pm and went to Mr Cianciosi's bedroom (ts 1207). He saw Mr Cianciosi asleep, although he awoke when Mr Heijne arrived and called his name (ts 1215). Mr Heijne then sat on the left‑hand side of the bed. On his evidence, he repeated his request to Mr Cianciosi to come into work to run the figures off the computer. According to Mr Heijne, Mr Cianciosi responded by requesting him to get into bed. His evidence was that they became annoyed with each other because Mr Cianciosi had shown Mr Heijne how to run off the reports several times in the past.
Mr Heijne's evidence was that he started crying because of his frustration and annoyance, and left his place on the side of the bed and sat on a leather chair in the bedroom (ts 1216). By then, Mr Cianciosi was sitting on the side of the bed facing Mr Heijne. He was not wearing any clothing. According to Mr Heijne, they continued their conversation, in which they were 'horrible to each other … arguing about work' (ts 1219).
According to Mr Heijne, he had his head down and his hands on his face, when Mr Cianciosi stood up. He looked up and Mr Cianciosi hit him to the right side of his face with the back of his right hand, saying, 'You're nothing but a fucking dumb bodybuilder' (ts 1219).
According to Mr Heijne, the blow to his face stung because a ring worn by Mr Cianciosi connected with his face. It was Mr Heijne's father's ring, which had been given to Mr Cianciosi by Mr Heijne's mother after his father passed away.
When asked to describe the impact of the blow to his head, Mr Heijne responded, 'It stung' (ts 1221). When asked his emotional response, he replied, 'I was pissed off' (ts 1221). He also said that he was angry and disappointed and was getting up to leave the room.
According to Mr Heijne, at that point Mr Cianciosi grabbed the top part of his shirt, and pulled him upwards towards him. Mr Heijne said he thought he was going to be hit again, and that it was going to hurt (ts 1222). He said he was frightened and scared.
Mr Heijne gave this evidence as to his state of mind in the context of other evidence of three previous incidents between himself and Mr Cianciosi.
First, Mr Heijne gave evidence that, in 1986, Mr Cianciosi was arrested and convicted of unlawful wounding after stabbing him in the back of the neck with a piece of broken plate. According to Mr Heijne, that incident occurred after a heated argument. He stated that he needed 10 stitches after the assault.
Mr Heijne also gave evidence that about five years prior to the trial, Mr Cianciosi had struck him on the left temple with an electric iron in the course of a fight.
Finally, Mr Heijne gave evidence that he had argued with Mr Cianciosi about three days prior to Christmas 2007, in the course of which Mr Cianciosi pushed him in such a way that his head knocked against an open cupboard door, causing a minor abrasion that was still evident on Christmas Day.

It was in that context then that Mr Heijne gave the evidence as to his state of mind. According to Mr Heijne, he then grabbed Mr Cianciosi by the throat with his left hand 'and hard' (ts 1227). At the same time, according to Mr Heijne, he smacked Mr Cianciosi in the mouth with his right fist once or twice 'to try and stop him from hitting me' (ts 1227).
Mr Heijne's evidence was that they then fell on the bed, lying diagonally across the bed, with him holding Mr Cianciosi's throat with his left hand only (ts 1228). The next thing Mr Heijne recalls was sitting on top of Mr Cianciosi with his legs straddled across him. He noticed that Mr Cianciosi was not moving, his eyes were opened and glazed, and his chest was not moving. He got off and then, according to him, tried to resuscitate him by giving him mouth‑to‑mouth resuscitation. However, he formed the view that Mr Cianciosi had died, after which he made him comfortable and turned the airconditioning on to 'super cold' (ts 1230). According to Mr Heijne, he went to the kitchen, where he smoked a cigarette, before returning to the bedroom to check on Mr Cianciosi. In the course of that check, he again concluded that Mr Cianciosi was dead. According to Mr Heijne, he repeated these actions a number of times. He then changed his shirt and left the apartment in order to keep an arrangement that he had previously made to meet Mr X to go shopping.
As I have mentioned, the prosecution case was that Mr Cianciosi was most likely killed during the evening of 3 January 2008. However, Mr Heijne's evidence was to the effect that the incident which resulted in Mr Cianciosi's death occurred in the early afternoon. The forensic evidence was unable to identify a time of death, and so these alternatives remained open on the evidence.
The general principles relating to the obligations of a trial judge when defences like self‑defence and provocation arise are well established. If there is any evidence which raises the possibility of such defences, the prosecution carries the burden of proving beyond reasonable doubt that the defences are excluded. If, on the view of the evidence most favourable to the accused, there is material on which the jury, acting reasonably, might fail to be satisfied beyond reasonable doubt that the defence has been excluded, it is the duty of the trial judge to put the issue to the jury, irrespective of the position adopted by defence counsel. If in doubt, the trial judge should leave the defence to the jury, although it should not be left to the jury if its application would be purely speculative, in the sense that it would lack foundation in the evidence: see Van den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158; Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107; Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88; R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183. So, in the present case, the critical question is whether, on a view of the evidence most favourable to Mr Heijne, there was material on which the jury acting reasonably could fail to be satisfied that the prosecution had excluded the application of the second paragraph of s 248.
It has been observed on a number of occasions that s 248 (as it was at the time of the alleged offence) and the equivalent provision in the Criminal Code (Qld) are not felicitously expressed. However, it seems relatively clear from the cases dealing with the section that the second paragraph of the section should be left to the jury where there is some evidence from which a jury might fail to be satisfied beyond reasonable doubt that the accused did not hold two subjective beliefs, each of which must be objectively reasonable..
The first belief is a reasonable apprehension of death or grievous bodily harm arising from the nature of the assault. The second belief is a belief on reasonable grounds that he cannot preserve the person defended from death or grievous bodily harm otherwise than by the force used. See R v Muratovic [1967] Qd R 15, 18 – 19; Marwey v The Queen [1977] HCA 68; (1977) 138 CLR 630, 636 – 637; R v Grey (1998) 98 A Crim R 589; and Bojovic.
I reiterate that once there is evidence capable of raising an issue as to the possible application of the defence, the prosecution carries the burden of proving beyond a reasonable doubt that the defence is excluded. It follows that there is no onus upon an accused to give evidence, or for there to be direct evidence of statements made by the accused concerning his state of mind. Rather, the issue can be raised by evidence which is capable of giving rise to an inference that the accused held the requisite beliefs: see R v Pangilinan [1999] QCA 528; [2001] 1 Qd R 56. Evidence of prior threats and assaults may also be relevant to the existence of a reasonable apprehension of death or grievous bodily harm: see Muratovic. The court should not impose unrealistic standards upon an accused facing the threat of imminent assault, and the accused should not be expected to weigh the niceties of the possible and likely outcomes of different courses of action when confronted with such a threat: see Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645.
Applying these principles to the circumstances of this case, attention might first be given to the evidence of prior assaults. As I have mentioned, Mr Heijne gave evidence of three prior occasions upon which he had been assaulted by Mr Cianciosi. His evidence as to the first occasion, in 1986, was corroborated by the record of Mr Cianciosi's conviction for unlawful wounding. However, that assault occurred more than 20 years prior to the events of January 2008, when both men were much younger. Further, while the assault could not be said to be trivial, skin having been broken and stitches required, nor could it be said, on the evidence, that when it occurred it was of a kind likely to cause reasonable apprehension of death or grievous bodily harm.
Nor could that characteristic be attributed to the second assault described by Mr Heijne - the assault with the electric iron, some five years prior to trial. It is also of some significance that each of the two more significant assaults identified by Mr Heijne involved the use of a weapon and were relatively remote in point of time from the events of January 2008. At the time of the scuffle which preceded his death, Mr Cianciosi was naked and there was no evidence of the proximity or availability of anything that might be used as a weapon. There was also evidence of a very general character to the effect that Mr Heijne was of a bigger build and fitter than Mr Cianciosi, supported by Mr Heijne's own evidence of the slur to the effect that he was nothing more than a 'dumb bodybuilder'.
Although the third incident related by Mr Heijne, concerning him being pushed into a cupboard door was quite close in point of time to the events of January 2008, on his evidence it was an incident of a minor character in which there was no prospect of any reasonable apprehension of death or grievous bodily harm.
The next matter to consider is Mr Heijne's description of the assault inflicted by Mr Cianciosi. It was not described as a punch, but rather as a hit with the back of the hand. It was said to have caused a stinging sensation as a consequence of the ring worn by Mr Cianciosi striking Mr Heijne's face. On that description, plainly it was not an assault of a kind which, objectively viewed, could of itself give rise to a reasonable apprehension of death or grievous bodily harm. However, that is not the end of the matter, because the critical question is whether that assault, viewed by Mr Heijne in the light of the previous assaults he had suffered, could have given rise to a reasonable apprehension of death or grievous bodily harm from the next assault he anticipated.
As I have noted, there is no requirement that an accused give evidence of the holding of actual beliefs in the terms of the section before a trial judge is obliged to leave the defence to the jury. However, in this case, Mr Heijne gave evidence of his actual state of mind prior to his application of force to the throat of Mr Cianciosi. His evidence was that the blow to his head 'stung', that he thought he was likely to be punched, and that it would hurt. Having been given the opportunity, he did not say that he apprehended any more serious form of violence would be used, or that he had any apprehension that Mr Cianciosi might utilise a weapon to inflict violence of the kind that had been inflicted in the past.
In all of these circumstances, taking the view of the evidence most favourable to Mr Heijne, there was no basis in that evidence for the jury, acting reasonably, to have entertained the possibility that Mr Heijne reasonably apprehended that he faced death or grievous bodily harm.
Turning now to the second belief required by the section, which concerns the belief as to the extent of the force necessary to avert the threat. By its verdict, the jury must be taken to have found that Mr Heijne applied force which in fact caused the death of Mr Cianciosi. On the version of the evidence most favourable to Mr Heijne, that force was strangulation to the throat of Mr Cianciosi applied by one hand. On his version of events, there were, of course, many other options open to Mr Heijne, including brushing Mr Cianciosi off and leaving the room, or discouraging his attack by punching him to the head as, on his evidence, he in fact did. While I reiterate that it is not necessary for an accused to give evidence of holding the actual belief described by the section, in this case, having been given every opportunity to give that evidence, the fact that Mr Heijne did not do so is of some significance. In all these circumstances, the jury acting reasonably could not have entertained the possibility that there were reasonable grounds for any actual belief that the only practical means of averting the threat which he faced was by the application of such force to the throat of Mr Cianciosi as may cause death or grievous bodily harm.
Reference was made in argument to cases in which, on the facts, it has been held on appeal that there was sufficient evidence to oblige the judge to leave self‑defence to the jury: see, for example, Muratovic. Predictably, reference was also made to cases in which appellate courts have held that the evidence was not such as to oblige the trial judge to leave the defence to the jury: see Bojovic; and R v Ellem (No 2) [1995] 1 Qd R 549. Because each case will turn upon its own particular facts and circumstances, little is to be gained by a comparative analysis of the different facts and circumstances of individual cases. In the circumstances of this case, for the reasons I have given, the evidence was not sufficient to create the prospect that the jury acting reasonably might have considered it possible that the accused held each of the beliefs required by the section on reasonable grounds. It follows that the trial judge was not obliged to leave the defence to the jury, and ground 2 must be dismissed.

Section 249

Counsel for the appellant conceded during the course of argument that, in the circumstances of this case, the trial judge would only have been obliged to leave the possibility of a defence under s 249 to the jury if the evidence was such as to give rise to a possible defence under the second paragraph of s 248, because the same beliefs were required. Counsel therefore conceded that ground 3 could only succeed if ground 2 also succeeded. As ground 2 fails, it follows that ground 3 also fails, for the same reasons.

Causation and intent – grounds 1, 1A and 4

Ground 1, 1A and 4 are cast in potentially wide terms. However, as developed by counsel during argument, it is clear that each is essentially concerned only with the issues of causation and intent. In the circumstances of this case, the appellant asserts that those issues are interrelated. That is because the causation issue focuses upon the pathological evidence, and the possibility said to have been left open by that evidence to the effect that strangulation was not a material cause of death. The pathological evidence is also said to be at the base of the issues raised in respect of intent, because the appellant characterises that evidence as showing only minor injuries were suffered, and failing to establish that any particular degree of force was applied, which is said to have various implications for the inference of intention to be drawn from the conduct of Mr Heijne.
Ground 1 raises these issues in support of a contention that there was insufficient evidence to sustain a verdict of guilty of murder, because there was insufficient evidence to sustain a finding of intention to cause an injury causing grievous bodily harm. Grounds 1A and 4 are not directed to the inherent quality of the evidence, but rather to the directions given to the jury by the trial judge. It is appropriate to deal first with ground 1, and in that context, to give detailed consideration to the pathological evidence which underpins much of the argument advanced in support of each of the three grounds.

Ground 1

Ground 1 is:
The verdict of guilty to murder is unreasonable and cannot be supported by the evidence, in that, no injury was identified by the State as the intended injury and, in any event, on the evidence, there could be no reasonable finding of an intention to cause an injury causing grievous bodily harm on the evidence before the jury.
Prior to the hearing of the appeal, and during the hearing itself, counsel for the appellant confirmed that this ground was not intended to raise a general attack upon the conviction, of the kind considered in M v R [1994] HCA 63; (1994) 181 CLR 487. Rather, the ground is focused only upon the adequacy of the evidence to sustain a finding of intention to cause grievous bodily harm.
The ground as enunciated, and the argument developed in support of the ground, contains a false premise. That is the premise that it was incumbent upon the State to identify and prove beyond reasonable doubt that the accused intended to cause a particular form of injury. That is not, and never has been, the law, and no authority has been cited in support of this premise.
As I have mentioned, the transitional provisions contained in the Criminal Law Amendment (Homicide) Act 2008 (WA) apply the law in force prior to that amendment to all offences allegedly committed prior to 1 August 2008. The provisions of the Code applicable to the offence of murder allegedly committed by Mr Heijne are found in s 279 of the Code in force in January 2008. Under that section, the offence of murder is committed by a person who unlawfully kills another with intent 'to do to the person killed or to some other person some grievous bodily harm'. The expression 'some grievous bodily harm', on its ordinary meaning, is clearly broad enough to encompass any form of injury of sufficient severity to fall within the definition of grievous bodily harm provided in the Code. It would be perverse to attribute to the legislature some meaning other than the ordinary meaning of that expression, such that the prosecution would be obliged to specify and to prove beyond reasonable doubt a particular or specific injury which the accused intended to cause before an accused could be convicted of murder. Very often the requisite intent will fall to be inferred from conduct by an accused which is capable of causing a wide range of potential injuries. Examples abound, such as deliberately driving a motor vehicle at speed into a crowd, or perhaps planting a bomb or small incendiary device of insufficient strength to cause death, but likely to cause serious injuries of many kinds, in a crowded area. Obviously, no rational legislature would seek to exempt offenders in these types of cases from liability to be convicted of murder if death is in fact caused, merely because it would not be possible to say that the perpetrator intended to cause a particular form of bodily injury.
It is not uncommon for the inference of the requisite intent to be drawn from the nature of the injuries established by post‑mortem examination. For example, in The Queen v Craggs (Unreported, QCA, Library No. 213 of 1995), the Court of Appeal rejected an argument that the evidence failed to establish the requisite intent for conviction of murder on the basis that the injuries revealed by the post‑mortem examination provided ample evidence upon which the jury could find that the accused had intended to cause some grievous bodily harm to the deceased.
It follows that ground 1 can only succeed if there is insufficient evidence to enable the jury to be satisfied beyond reasonable doubt that Mr Heijne intended to cause some form of injury, of whatever kind, falling within the definition of grievous bodily harm. The meaning given to that expression by s 1 of the Code is 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'.
In this case, like Craggs, the evidence relied upon by the prosecution to sustain that inference came in part from the post‑mortem examination of the deceased conducted by Dr McCreath. Her evidence was that she observed the following injuries in the course of her examination:
(a)a bruise over the right side of the bridge of the nose, most likely to have been caused by blunt trauma (ts 973)
(b)a bruise over the lower right eyelid (ts 975)
(c)an abrasion to the front of the neck (ts 976)
(d)an abrasion to the right side of the neck (ts 977)
(e)four bruises on the upper right arm (ts 979)
(f)an abrasion on the right forearm below the right elbow (ts 981)
(g)another abrasion on the right forearm close to the right wrist (ts 981)
(h)an abrasion on the right thumb (ts 982)
(i)an abrasion on the front of the left forearm, probably caused by blunt trauma, in the form of a scratch and a bruise (ts 983)
(j)petechial linear abrasion on the front of the left upper arm (ts 984)
(k)an abrasion on the back of the left second finger (ts 984)
(l)a bruise on the front section of the left shin (ts 985)
(m)petechial haemorrhaging to the whites of the eyes of the deceased, with a larger area of bleeding within the right eye (perhaps resulting from neck compression or, in the case of the larger bleed, blunt force) (ts 965 ‑ 966).
Dr McCreath also undertook an internal examination of the soft tissues within the neck. She found extensive bruising in the muscles and soft tissue in various parts of the neck including the deeper muscles (ts 986 ‑ 988). She also found that the greater horn of the thyroid cartilage was fractured (ts 988). Her evidence was that the haemorrhaging was likely to be evidence of blunt force, such as squeezing. The fracture of the thyroid cartilage was consistent with neck compression in her view (ts 991). However, it was not possible for her to say what degree of force was required to fracture that cartilage. The petechial haemorrhages in the eyes were also consistent with neck compression in her view (ts 992).
Internal examination by Dr McCreath also showed that Mr Cianciosi suffered significant narrowing of the arteries to his heart (ts 993).
She also found a bruise on the right temple of his scalp which could either have been caused by a blunt force or by the same mechanism which caused the petechial haemorrhages (ts 994). She also found haemorrhages within both left and right masseter muscles, being the jaw muscles (ts 994). She also discovered a subcutaneous bruise on the back of the right forearm (ts 994).
When asked to express an opinion as to the cause of death, Dr McCreath replied that the injuries she observed were 'consistent with neck compression' (ts 999). She expressed the view that this was the most likely cause of death, and explained at length the reasons for that view. She also explained the various ways in which sustained compression of the neck can cause death.

When asked about the narrowing of the arteries which she had found, she expressed the view that if somebody had been found deceased at home and there was no other explanation for death, death would probably be attributed to the coronary artery disease (ts 1000). However, she also expressed the view that she had seen cases of much worse narrowing of the arteries which were not in fact the cause of death. She confirmed that she had taken into account the possibility of death as a result of heart disease when she expressed the view that the cause of death was most likely due to neck compression.
Under cross‑examination, Dr McCreath confirmed that she could not exclude the reasonable possibility that heart disease was the cause of death. In re‑examination she confirmed that in her view the most likely cause of death was neck compression because of the acute changes associated with and indicated by the injuries which she examined, as compared to the gradual changes usually associated with coronary artery disease (ts 1006).
The appellant does not suggest that the evidence of Dr McCreath was not sufficient to sustain a finding by the jury that the force applied by Mr Heijne to the neck of Mr Cianciosi was, through one or other of the mechanisms identified by Dr McCreath, the cause of his death. Rather, it is put that because of the injuries sustained by Mr Cianciosi which the appellant characterises as 'minor', and the inability of Dr McCreath to specify the particular degree of force which was required to be applied to the neck to fracture the thyroid cartilage, there was insufficient evidence from which the jury could infer that the force applied by Mr Heijne was consistent with an intention to cause grievous bodily harm.
At points in the argument advanced in support of this ground, it seemed that the proposition being advanced was to the effect that strangulation was only consistent with an intention to cause death, and because that intention was excluded by reason of the jury's acquittal on the count of wilful murder, no other intention was open on the evidence. That proposition must be rejected.
Strangulation can, of course, cause death. However, as Dr McCreath explained in her evidence, neck compression can deprive the brain of oxygen through a number of possible mechanisms. Obviously, restriction of the flow of oxygen to the brain is capable of causing a variety of injuries, including injuries of a kind falling within the definition of grievous bodily harm. The evidence of Dr McCreath, supported by the evidence of Mr Heijne himself, enabled the jury to find that he applied a degree of force to the neck of Mr Cianciosi. The fact that Dr McCreath was unable to particularise the precise degree of force applied does not mean, as counsel at trial and on appeal suggested, that the jury was 'in the dark' as to the degree of force applied. On the contrary, there was ample evidence, including the fact of death itself, to suggest that the degree of force applied was significant. The sustained application of a significant degree of compressive force to the neck is a quite sufficient basis for a jury to draw an inference of intention to cause some grievous bodily harm. Therefore, the fact that the jury in this case was not satisfied to the requisite standard that the accused intended to cause death does not mean that it could not be satisfied beyond reasonable doubt of an intention to cause some lesser degree of harm within the definition of grievous bodily harm.
The submissions advanced in support of this ground focused entirely upon the pathological evidence given in relation to the extent of Mr Cianciosi's injuries. However, that was only one part of the evidence from which the jury could infer that Mr Heijne intended to cause some form of grievous bodily harm to Mr Cianciosi. The other evidence which, in combination with Dr McCreath's evidence, was capable of sustaining that inference was:
(a)the evidence of animosity within the relationship between Mr Heijne and Mr Cianciosi arising from Mr Heijne's relationship with Mr X and their business disagreements;
(b)Mr Heijne's description of the struggle which preceded Mr Cianciosi's death;
(c)Mr Heijne's evidence that when he realized Mr Cianciosi was dead, he thought he must have strangled him;
(d)Mr Heijne's conduct before and after Mr Cianciosi's death, including his shopping trip with Mr X;
(e)Mr Cianciosi's admissions to Mr X and Jason Mitchell the following day, including his demonstration of his strangulation of Mr Cianciosi; and
(f)Mr Stefani's evidence of the lies told by Mr Heijne.
Ground 1 must be dismissed.

Grounds 1A and 4

Grounds 1A and 4 are as follows:
1AFurther and/or in the alternative to ground 1, the learned trial judge erred in his direction to the jury by failing adequately or at all, to explain to the jury:
(i)how the law governing the offence of murder applied to the facts of the case;
(ii)what the issues of fact were in the trial in relation to the charge of murder and how those issues related to the facts of the case; and
(iii)what evidence was relevant to the facts in issue.
4.The learned trial judge erred in law in failing to adequately or at all put the defence case to the jury in his summing up.
Ground 4 as drafted suggests that the proposition being advanced is one of imbalance in the trial judge's presentation to the jury of the prosecution case as compared to the defence case, of the kind that succeeded in The State of Western Australia v Pollock [2009] WASCA 96. However, it is apparent from even the most superficial reading of the directions given by the trial judge to the jury that this case is not at all like Pollock, in that the trial judge made many references to the defence case and to the arguments advanced by defence counsel during the course of his directions. Although the written submissions lodged in support of this ground were headed 'unbalanced charge', they were entirely obscure, in that they failed to identify the aspect or aspects of the defence case which were not adequately put to the jury by the trial judge.
In the course of oral submissions, counsel for the appellant confined the argument to two areas in which it was said that the directions were deficient - namely, those in respect of causation and those in respect of the intent necessary to sustain the charge of murder (appeal ts 34). During the course of oral argument, it became apparent that another proposition being advanced was an asserted failure by the trial judge to link the propositions of law which he put to the jury to the particular facts of the case, and the evidence relating to those facts in relation to the charge of murder and, in particular, the intent necessary to sustain a conviction on that charge. When that proposition emerged, counsel moved to amend the grounds of appeal to include ground 1A in the terms set out above. Although expressed to be an alternative to ground 1, it is also closely related to ground 4, and emerged from argument advanced in support of ground 4 in the manner I have described.

The obligations of a trial judge

The extent of the obligation of a trial judge to direct the jury in relation to the facts, the evidence adduced in relation to those facts, and the arguments advanced on behalf of the defence was recently considered by this court in Pollock. I adhere to the views which I expressed in that case, and with which Wheeler JA agreed. As the High Court observed in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555:
Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (561).
The appellant placed reliance upon the seminal passage in the judgment of Dixon, Williams, Webb, Fullagar and Kitto JJ in Alford v Magee [1952] HCA 3; (1952) 85 CLR 437:
[I]t may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.
The appellant relies upon that passage to support the proposition that in each and every case the trial judge has an obligation to link the legal issues in the case to the facts and the evidence. Specifically, the appellant argues this requires the judge to identify for the jury the particular facts that are relevant to each legal issue in the case and, where those facts are contentious, to outline the competing lines of evidence pertaining to those facts. However, it is clear from subsequent decisions of the High Court, including Domican and RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] ‑ [43] (Gaudron ACJ, Gummow, Kirby and Hayne JJ), that there are no axiomatic rules or principles that can be applied to each and every case to determine the precise extent of the obligations of the trial judge in the circumstances of a particular case. Rather, because the facts and circumstances of the cases that come before the courts are infinitely variable, the precise extent of the obligation to address on the facts and on the arguments advanced in the case is equally variable and will depend upon the particular circumstances of each case. The overriding obligation of the trial judge is to ensure a fair trial. That in turn imposes an obligation to provide the jury with as much information as they need to adequately discharge their responsibilities. The extent of that obligation in a short trial with little factual controversy will be quite different to the extent of the obligation in a long and complex trial replete with conflicting evidence.
In light of the arguments advanced by the appellant in this case, two other observations are pertinent. First, in assessing the precise extent of the assistance which a trial judge is required to give a jury in any particular case, it is important to respect the common sense and general intelligence of the jury, composed as it is of members of the community drawn from various walks of life and with experience of life and human nature. The jury process would be demeaned if courts were to assume that juries are likely to adopt processes of reasoning which are infantile or naïve unless spoon fed with precise instructions as to each and every step to be taken in the reasoning process.
Second, a trial judge is not obliged to repeat each and every argument put by defence counsel in the judge's directions to the jury. While the trial judge is obliged to identify for the jury the issues which they must determine, and to identify, in general terms, the competing positions of the parties in relation to those issues, that does not extend to an obligation to repeat each and every argument put by each party, however tenuous or misconceived. In this State, the trial judge will invariably address the jury straight after defence counsel has completed his or her address. It would test the patience and demean the intelligence of juries to require trial judges to repeat each and every proposition put by defence counsel. The test to be applied when it is asserted that the directions given by a trial judge are inadequate is not whether the trial judge has reiterated each and every proposition put by opposing counsel, but whether, in the light of the addresses of counsel and the length and complexity of the trial, the trial judge has given the jury a sufficient understanding of the law, and the way in which the law relates to the issues in the case, to adequately discharge their responsibilities.

Causation

One of the issues which the jury had to determine was whether the State had proven that Mr Heijne had caused the death of Mr Cianciosi. Both prosecution and defence counsel addressed the jury on this issue. Defence counsel summarised for the jury the evidence given by Dr McCreath, including her evidence that while neck compression was in her view the most likely cause of death, for the reasons which she gave, she could not exclude the reasonable possibility that Mr Cianciosi died as a result of cardiac arrest (ts 1568). Counsel then put to the jury that the question of whether or not the State had proved beyond a reasonable doubt that it was strangulation and not a heart attack that caused Mr Cianciosi's death was a matter for the jury, which they should approach as a matter of common sense (ts 1568).
The trial judge directed the jury that it was an essential element of each of the three homicide offences which he identified to the jury (wilful murder, murder and manslaughter), that the accused must unlawfully cause the death of another directly or indirectly by any means whatever (ts 1616). He directed the jury that in assessing that issue, they should take into account all the circumstances, and not just the evidence of Dr McCreath (ts 1617). He then read to the jury relevant portions of Dr McCreath's evidence on the subject of causation, including those parts of her evidence concerning the observations which she made that were relevant to the likelihood of death arising from neck compression (ts 1618). He also read to the jury her description of the various ways in which neck compression can cause death (ts 1618). He then read to the jury her evidence in respect of the narrowing of the coronary arteries of the deceased, and her evidence as to the possibility that arterial disease may have been the cause of death (ts 1619). Relevant portions of cross‑examination by defence counsel were also read to the jury, including her evidence that she could not exclude as a reasonable possibility the fact that Mr Cianciosi died as a result of cardiac arrest from the narrowing of arteries (ts 1620).
The trial judge then summarised to the jury the evidence given by Mr Heijne as to the events which preceded the death of Mr Cianciosi, and in particular his evidence that at the time he concluded that 'I had strangled him because of the way I grabbed his throat' (ts 1621).
The trial judge reiterated that it was for the jury to take into account all evidence which they thought might be relevant to this issue, and not just the evidence which he had read to them, and that they were to apply a common sense approach to the question of causation (ts 1616 ‑ 1617).
So, in essence, the trial judge took much the same approach to the issue of causation in his direction to the jury as was taken by defence counsel. He reminded the jury of the most pertinent evidence on the subject and clearly identified the issue which they had to resolve and the manner in which they should resolve it. There is no substance in the assertion that the directions on this topic were deficient.

Intention

Although grounds 1A and 4 are cast in extremely broad terms, counsel for the appellant confirmed, both during the course of oral argument and in written submissions filed subsequent to the completion of the hearing, that the key issue raised by the grounds is the asserted inadequacy of the directions with respect to the intent necessary to sustain a charge of murder.
At the heart of the appellant's argument in this area is the proposition that the trial judge failed to give the weight and authority of his office to an argument advanced by defence counsel to the effect the jury could not infer that Mr Heijne intended to cause Mr Cianciosi some grievous bodily harm from the acts perpetrated on Mr Cianciosi because of the evidence of Dr McCreath. The line taken by defence counsel in this regard is evident from the following passages in his address:
She [Dr McCreath] also again found a fracture to the thyroid cartilage, the Adam's apple, I think her evidence there was that it was to the horn of that piece of cartilage. She was specifically asked by Mr Fiannaca what force would be required to cause that fracture. She said she could not say so you are completely in the dark about how much force is required to cause that fracture and you cannot guess whether it is a lot of force or a little amount of force. She just could not say and did not say what degree of force and you are really in the dark about the amount of force required to cause the bruising to the surface or underneath. (ts 1569)
…
The other aspect is that the physical injuries do not indicate a great deal of force has been used. This is not the case of a person attacking someone with a weapon, for example, a baseball bat or a knife or something like that. We've got bruising and we've got a fracture of cartilage, surface bruising and some deeper bruising, but even Dr McCreath indicated that apart from the fracture these were, I think in her words, minor-type injuries and, as I have indicated already, there is no evidence as to the degree of force required to cause any of those injuries, including the fracture. (ts 1581)
These observations on the evidence were used by counsel to sustain the submission that:
[Y]ou could not reasonably conclude that the state had proven even an intention to kill by Mr Heijne or an intention to cause grievous bodily harm. What the state must prove beyond reasonable doubt is that in grabbing Mr Cianciosi by the neck, Mr Heijne had one singular intention, and that intention was to bring about Mr Cianciosi's death, not to cause him serious harm but in relation to the charge of wilful murder, that he had a singular intention to kill him; not to hurt him, to kill him, to take his life. You've heard no evidence of any admission by Mr Heijne that he had that intention. It's clear on the evidence that he was absolutely devastated by his demeanour about what happened. (ts 1573 ‑ 1574)
Two points emerge from these passages. First, defence counsel took the approach that the same evidence, that is, the evidence relating to the extent of the injuries suffered by Mr Cianciosi, was relevant both to the question of intent to kill, and intent to cause grievous bodily harm. That is hardly surprising, as its relevance to both intentions is obvious. Second, and perhaps most significantly, the propositions advanced by defence counsel distorted and misconstrued the evidence given by Dr McCreath in two important respects.
First, while Dr McCreath declined to specify a precise degree of force that would have been necessary to fracture the cartilage, that did not mean that the jury were completely in the dark about the extent of the force used and had to guess whether it was a lot of force or a little amount of force. Dr McCreath gave evidence of the extent of the bruising to the neck, both superficial and subcutaneous, including deep bruising. The jury were entitled to infer from that evidence that a significant degree of force was applied to the neck of the deceased. They were entitled to draw the same inference from the fact that the cartilage was fractured. Of course, they also had Mr Heijne's evidence of his application of force to the throat of Mr Cianciosi, and that at the time he concluded that he had strangled him, causing his death. The jury were entitled to reason that it is unlikely he would have formed that conclusion if he had only applied a light amount of force for a short time.
Second, it is not correct to say that Dr McCreath's evidence was to the effect that apart from the fracture to the cartilage, the other injuries sustained by Mr Cianciosi were 'minor type injuries'. While she did describe some of the superficial bruises and abrasions as minor, she did not apply that description to the extensive injuries to the neck of Mr Cianciosi which she described to the jury.

So, in these significant respects, the argument advanced by defence counsel misrepresented the evidence given by Dr McCreath and its effect. It can hardly be suggested that the trial judge was under an obligation to repeat that misrepresentation to the jury.
The other substantial proposition developed in support of these grounds was an assertion that the trial judge was obliged to separately and specifically identify to the jury those aspects of the facts and evidence which went to the issue of intent to cause grievous bodily harm, as opposed to the facts and evidence that went to the issue of intent to kill. The first point to note in response to that submission is that already noted, namely that this was not the approach taken by defence counsel, who regarded the pathological evidence as relevant to both questions of intent.
The second point to note is that where there is a trial of wilful murder and murder as alternative counts, with the only difference between the two counts lying in the intent of the accused, it is inherently likely that the same evidence will be relevant to both questions of intent. This case provides an example of the way in which the same evidence might, on one view, sustain proof of an intention to kill, but on another view, sustain proof of an intention (only) to cause grievous bodily harm. In such cases, provided that the jury are clearly directed as to the differences between the two intentions, and provided that the evidence relevant to the intention of the accused is identified, the jury is sufficiently equipped with the information needed to determine whether the State has proven one or other of those intentions to the requisite standard. There is no reason to suppose that a jury would be better equipped to perform that task if the judge structured his directions into an address which dealt first only with wilful murder, and canvassed the evidence relevant to that intention and then addressed the charge of murder, canvassing precisely the same evidence.
A brief review of the course taken by the trial judge in his address to the jury demonstrates that the course taken in respect of the intent necessary to sustain a conviction of murder was entirely adequate.
After giving conventional directions in relation to the presumption of innocence and the burden and standard of proof, the trial judge took the jury through the indictment and identified the three charges of homicide that were before them, namely, wilful murder, murder and manslaughter (ts 1614). He identified the common element of those offences, namely, the unlawful killing, and the different elements of each offence, namely, the different elements of intention in relation to the two charges of murder and wilful murder (ts 1615). In that context, he took the jury to the definition of grievous bodily harm in the Code. Thereafter during his address, he tended to paraphrase that definition with the expression 'life‑endangering injury'. The appellant does not complain of inaccuracy arising from that shorthand description, because, of course, to the extent that it omits reference to the elements of the definition concerning likelihood, and permanent injury to health, the omission is beneficial to the accused by tending to set the standard higher.
The trial judge then addressed the issue of causation in the manner I have already described (ts 1616).
He then gave the jury general directions on the subject of intention, including directions as to the manner in which intention might be proven (ts 1623). He directed the jury to take account of all circumstances, including the evidence of the accused, and the evidence of his actions before and after the death of Mr Cianciosi. He made reference to the issue of motive and the deterioration of the relationship between Mr Heijne and Mr Cianciosi, and in this context differentiated between motive and intent (ts 1623 ‑ 1624).
The trial judge also identified to the jury the competing positions adopted by the prosecution and the defence in respect of the nature of the relationship at the time of Mr Cianciosi's death (ts 1625).
At a number of points in the address, the trial judge reminded the jury of the distinction between the intent required to established in order to sustain the charge of wilful murder, and that required to sustain the charge of murder. An example follows:
The all-important question that the prosecution must prove in order to sustain a conviction for wilful murder is that at the time the accused caused the death of the deceased, he intended to kill him. In order to sustain a conviction for murder, the prosecution must satisfy you beyond reasonable doubt that at the time that the accused caused the death of the deceased he intended to cause the deceased some grievous bodily harm, some live-endangering injury, albeit that death was an unintended result. (ts 1625)
The trial judge then directed the jury on the issues of self‑defence and provocation. In that context he read to the jury almost the entire portion of the evidence given by Mr Heijne in relation to the events immediately preceding the altercation, and the altercation itself (ts 1627 ‑ 1632).
The trial judge then gave general directions on the subject of circumstantial evidence and the drawing of inferences (ts 1649).
He then addressed some specific areas of the evidence. The first area he addressed was the evidence relating to the relationship between Mr Heijne and Mr Cianciosi (ts 1651). Then he addressed the evidence of Mr Stefani in relation to the lies the State asserted were told to him by Mr Heijne, and gave the jury a direction in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 (ts 1654 ‑ 1655). He then addressed the evidence of the admissions said to have been made to Mr X and Mr Mitchell, and the demonstrations Mr Heijne was said to have given to each as to the manner in which he strangled Mr Cianciosi (ts 1656).
The trial judge then addressed a number of conflicts in the evidence, such as the conflicting evidence relating to whether or not a motor vehicle was purchased for Mr X, whether there was a physical relationship between Mr Heijne and Mr X, and in relation to some of the forensic evidence (ts 1662 ‑ 1665). He then reminded the jury of the evidence given as to the actions of Mr Heijne after he said he thought he had killed Mr Cianciosi, when he went shopping with Mr X (ts 1665).
After that review of the evidence, he again reminded the jury that the question they had to determine on the charge of wilful murder was whether the State had proven that at the time Mr Heijne caused the death of Mr Cianciosi, he intended to cause his death. He again reiterated to the jury that for the purposes of the alternative count of murder, it was necessary for the State to prove that Mr Heijne caused the death of Mr Cianciosi and at the time he intended 'not to kill him but to cause some serious life‑threatening injury' (ts 1666).
It can thus be seen that the trial judge clearly explained to the jury the difference between the intention required to sustain a charge of wilful murder, and the intention required to sustain a charge of murder. He reiterated the distinction between those two intentions many times during his address. He drew the attention of the jury to:
(a)the detail of the evidence given by Dr McCreath;
(b)the detail of the evidence given by Mr Heijne as to the events preceding the death of Mr Cianciosi;
(c)the conflicting evidence relating to the relationship between Mr Heijne and Mr Cianciosi;
(d)the evidence relating to Mr Heijne's conduct before and after the death of Mr Cianciosi;
(e)the evidence of the admissions said to have been made by Mr Heijne to Mr X and to Mr Mitchell, and the demonstrations said to have been given by Mr Heijne of the strangling motion he applied to the neck of Mr Cianciosi; and
(f)the evidence of what the State asserted were the lies told by Mr Heijne to Mr Stefani.
The trial judge therefore specifically referred the jury to all the evidence that was relevant to the intent of Mr Heijne at the time of Mr Cianciosi's death. That evidence was relevant both to the question of the intent required to sustain the charge of wilful murder, and the intent required to sustain the charge of murder. The difference between those two intentions was made abundantly clear to the jury by the trial judge. The way in which the evidence could be used by the jury in their determination as to the intention of the appellant would have been obvious, and was, in any event, a matter for them. The jury would have been no better equipped to perform their task if, as the appellant appears to suggest, the trial judge had differently structured his direction so as to deal firstly with the evidence relating to intention to kill, and then separately and distinctly with the evidence relating to intention to cause grievous bodily harm because, in this case, as in many cases, the evidence was identical.
The directions given by the trial judge were entirely adequate to enable the jury to discharge its responsibilities. Grounds 1A and 4 should be dismissed.

Ground 5

This ground was expressly abandoned by the appellant at the hearing of the appeal.

Conclusion

Leave to appeal in respect of ground 1 was reserved to the Court of Appeal. Although that ground should be dismissed, it was sufficiently arguable to justify the grant of leave. Accordingly, leave to appeal should be granted in respect of ground 1, but the appeal should be dismissed generally.
OWEN JA: I agree with the Chief Justice.
BUSS JA: I agree with Martin CJ.