Lang v The Queen

[2023] HCATrans 60

[2023] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B57 of 2022

B e t w e e n -

THOMAS CHRIS LANG

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MAY 2023, AT 9.44 AM

Copyright in the High Court of Australia

MS R.M. O’GORMAN, KC:   May it please the Court, I appear with my learned friend MR D.M. CARUANA for the appellant.  (instructed by Fisher Dore Lawyers)

MR G.J. CUMMINGS:   May it please the Court, I appear with my learned friend MR N.W. CRANE for the respondent.  (instructed by Office of the Director of Public Prosecutions (QLD))

KIEFEL CJ:   Yes, Ms O’Gorman.

MS O’GORMAN:   Your Honours, at the heart of this appeal lies the proposition that the circumstances of this case – the forensic and medical circumstances of Mrs Boyce’s death – were consistent with suicide and not with murder.  The companion proposition is that the matters relied upon by the Crown, most notably and specifically the evidence related to whether or not Mrs Boyce was suffering any depressed mood at a time proximate to her death, firstly; secondly, evidence related to a possible motive; and thirdly, the alleged lie, were not capable when weighted with the circumstances of her death of supporting a verdict of guilt beyond reasonable doubt.

This, of course, is a wholly circumstantial case.  Two basic but nonetheless fundamental to our argument propositions loom large in this appeal.  The first is that in a circumstantial case, guilt should not only be a rational inference but should be the only rational inference that can be drawn from the circumstances.  The second is that on an appeal on the ground the verdict was unreasonable, the task for the appellate court is to weigh all the circumstances to decide whether it was open to the jury to draw the ultimate inference that guilt had been proven beyond reasonable doubt.  The inference, of course, would not be open if the prosecution had failed to exclude an inference consistent with innocence that was reasonably open.

Now, we say that this case is interesting because here there was only one possible cause of Mrs Boyce’s death.  There were only two people who could have caused that death, and in light of the manner in which the death was caused the death could only have been murder or suicide.  Thus, the binary question, as it were, confronting the jury was whether on, all of the evidence it could exclude the possibility that death was a suicide.  The question for the Court of Appeal after weighing all of the circumstances was whether it was open for the jury to have excluded that possibility that the death was a suicide.

We submit that in dismissing the appeal, the Court of Appeal erred because on all of the evidence there remained at least a reasonable possibility that Mrs Boyce’s death was in fact a suicide.  It is trite to say, at trial and on appeal, that the evidence must be looked at as a whole and not in a piecemeal fashion.  Nonetheless, identification of the components of a circumstantial case are essential so that they can be weighed both individually and collectively to determine whether, at the end of the case and on all of the evidence, the inference consistent with innocence has in fact been excluded.

That being so, our oral submissions this morning will advance three propositions in respect of ground 1.  First, the circumstances of Mrs Boyce’s death established by the forensic evidence of the examination of her body, Mr Lang’s body, the knife and the apartment generally were consistent with the death being a suicide.  Second, the circumstances relied upon by the Crown in support of its case, that is, the evidence related to her depressed mood or otherwise, the positive motive and the alleged lie provided only weak support for the Crown case.  Third, in some cases, the individual components of a circumstantial case may not be strong when looked at individually, but nonetheless gain strength, including sufficient strength to support a conclusion of guilt beyond a reasonable doubt when joined together.  But we say this is not such a case.

The circumstances of the death pointing, as they do compellingly, to the matter being a suicide, the other circumstances do not provide strong support for the Crown case.  And when they are considered with the circumstances of the death, they do not accumulate strength.  Rather, in our submission, the doubt inherent in the circumstances of the death itself infect the other circumstantial components relied upon by the Crown such that, when taken together at the entirety, or at the end of the trial, the possibility of suicide remains, even when all of the circumstances are considered together.

In respect of ground 2, that ground relies or relates to the evidence given by Dr Ong, the forensic pathologist who conducted the autopsy on Mrs Boyce’s body.  That ground turns on whether his opinion that the death was “more likely” caused by a second party was admissible.  My oral submissions in respect of that ground, I anticipate, will be relatively brief.  I will address the test for admissibility of expert opinion, the basis of his opinion, and why we say it is that that opinion does not amount to expert evidence.

EDELMAN J:   Ms O’Gorman, can I just ask you about the relationship between grounds 1 and 2?

MS O’GORMAN:   Yes.

EDELMAN J:   Ground 1, if you are successful, I take it you would say that the proper order would be an entry of an acquittal.

MS O’GORMAN:   Yes.

EDELMAN J:   In ground 2, the proper order would be an order for a retrial. 

MS O’GORMAN:   Yes, your Honour.

EDELMAN J:   Can ground 1 be considered prior to considering ground 2?  Would not the proper course for considering all of the evidence first require an assessment of whether part of the evidence should be excluded?

MS O’GORMAN:   In our submission, your Honour, the matter could be dealt with in either order because, although if the Court formed the view that Dr Ong’s opinion was inadmissible that would be a matter which would strengthen our arguments in respect of ground 1, in my submission, nonetheless, our argument in respect of ground 1 stands quite apart from the argument with respect ‑ ‑ ‑

EDELMAN J:   So, you are content to proceed on ground 1 on the basis of all of the evidence, irrespective of admissibility?

MS O’GORMAN:   That is so.

EDELMAN J:   All right.

MS O’GORMAN:   Of course, if it would be more convenient for me to deal with ground 2 first, I can ‑ ‑ ‑

EDELMAN J:   Not at all.

MS O’GORMAN:   ‑ ‑ ‑ but we do advance the proposition that ground 1 stands alone.  Having said that, can I turn to my submissions in respect of ground 1, then, and those propositions that I intend to advance this morning.

At the time of Mrs Boyce’s death, as your Honours will appreciate, Mrs Boyce was living alone in an apartment at Kangaroo Point.  However, from about 6 October 2015 – a couple of weeks prior to her death – Mr Lang, the appellant, was also living in that apartment with Mrs Boyce.  The evidence led at trial about the movements of Mrs Boyce and the appellant on the evening of 21 October 2015 were uncontroversial and, in fact, mostly put before the jury by way of admission.  Put very shortly, the two of them went out in the evening, had some dinner, came back and the evidence established that they were back at the apartment by about 7.23 pm that night.

The evidence also established that there was no one else living on that floor and no one else had accessed that floor before the paramedics and the police officers attended at or about 6 o’clock the next morning.  So, that being the case, it was quite clear on all of the evidence that only the appellant and Mrs Boyce were in the apartment on the night that Mrs Boyce died.  It is in those circumstances and in circumstances where, if it was the appellant who inflicted the lethal injury, it is quite clear that he would have done so with an intent to cause either GBH or death.  But it was accepted at trial that this was a case that was either murder by the appellant or suicide by Mrs Boyce.

That being so, the first aspect that is notable in respect of the evidence is that there was no forensic evidence linking the appellant to the act which caused Mrs Boyce’s death.  I appreciate that your Honours will be aware of that evidence because it is in our outline and nonetheless, because it is critical to the development of my argument, I will take just a couple of moments, if I may, to identify what we say is the critical evidence in that regard. 

Your Honours will recall that the appellant called triple‑0 at or about 6.00 am on the morning of 22 October 2015 to report that he had just found Mrs Boyce was dead in her bed, and paramedics and police attended a short time later.  The evidence then about the circumstances of Mrs Boyce’s death came from those first attending police officers and paramedics in respect of how they found the body when they attended at the unit, but also from police officers who attended later and conducted a search on the outside of the apartment, took control of the apartment itself and had forensic police officers there searching through the apartment for clues, as it were, as to how the death might have come about.

The evidence also came from Dr Ong who, as your Honours will be aware, attended upon the scene on 22 October and made some examinations of the scene at that time, but also conducted the autopsy later.  Now, in respect of the scene, it was as follows.  Mrs Boyce’s body was lying on her bed – on the right‑hand side of the bed, if you were looking at it from the top of the bed towards the bottom.  The kitchen knife was protruding from her abdomen and it had passed through the top sheet, which was across her body before it entered her abdomen.

There was blood on and around Mrs Boyce’s body, primarily in the location of the wound but also on the bedding around the wound and on Mrs Boyce’s left hand but not her right – which was positioned under a pillow up above her head.  Other than a couple of drops of blood on the carpet adjacent to where Mrs Boyce’s body was and some drops of blood on pillows and sheeting towards the bottom of the bed, there was no other blood found throughout the apartment on the search that Sergeant Esaias commissioned police officers to do.

EDELMAN J:   There was evidence she was right‑handed, was there not?

MS O’GORMAN:   There was evidence that she was right‑handed, that is so.  There was no physical evidence as, I adverted to, linking the appellant to Mrs Boyce’s death and these are what we say are the critical aspects of that evidence.  Firstly, in respect of the knife, Mrs Boyce’s DNA was found on the knife.  The appellant’s was not. There was no packet of gloves found in the apartment or on the outside of the apartment, or any evidence of an attempt to discard a glove that might have caused a lack of transfer of DNA.

Turning to Mrs Boyce’s body, the appellant’s DNA was located on Mrs Boyce’s breasts.  That, we say, assumes no significance in the context of the case because it was entirely uncontroversial that the appellant and Mrs Boyce were in a romantic and, indeed, a sexual relationship, and touching on the breasts would have been expected in those circumstances.  The appellant’s DNA was not found under Mrs Boyce’s fingernails.  A subsequent autopsy performed by Dr Ong revealed that Mrs Boyce had died from blood loss resulting from that knife wound that was apparent to the first responding police.

In respect of the appellant’s body, the matters that we say are significant are that he was examined shortly after the police arrived or later that day.  No injuries were found on him which could have been caused at the time of Mrs Boyce’s death.  There were, I think from memory, maybe some bruises or even a scratch, but it was ruled out that they could have been inflicted at the time of her death – they were old injuries.

KIEFEL CJ:   Well, there was no suggestion that Mrs Boyce had any defensive response, which is something that you relied upon.

MS O’GORMAN:   Yes, that is so.  And there was no blood found on his body or the clothing.  In respect of the apartment itself, there was no evidence of blood found in the apartment save for in the areas that I have already identified, primarily on the bed and on and around Mrs Boyce’s body.  Nothing of relevance to the death was found in the bins which were searched in the apartment but also the bins external to the apartment which were accessible by a shoot within the apartment itself.  There was no evidence of blood in the sinks, taps or drains in the apartment.

Of course, evidence was given that the absence of evidence of blood in those places did not mean that blood may not have been there at some time, but the fact remained that there was simply no evidence of blood there.  The only item of significance was the mobile phone, which was found on the outside of the apartment on the ground during a police search when the appellant told police that Mrs Boyce had thrown the mobile phone off the apartment. I want to say something very briefly about the significance ‑ ‑ ‑ 

KIEFEL CJ:   But there was evidence physically linking the appellant to the phone.

MS O’GORMAN:   Yes, that is so.

KIEFEL CJ:   The fingerprint.

MS O’GORMAN:   There was a fingerprint on the phone.  Significantly, and I can return to this later, because it becomes more relevant for the purpose of addressing the alleged lie and the possible motive, but the evidence was given that although a latent fingerprint was identified, positioned horizontally on the front of the phone, the person who identified that latent fingerprint could not time it or date it; could not say when that fingerprint was left on the phone.

EDELMAN J:   The appellant was interviewed by police, and there were recorded interviews, were there not?

MS O’GORMAN:   Yes.

EDELMAN J:   We do not have them in the materials, as I understand, but were there any questions that were asked related to the phone in the interviews?

MS O’GORMAN:   Your Honour, the interviews are in the material before this Court by way of the respondent’s further materials.

EDELMAN J:   I see.

MS O’GORMAN:   They were extensive, and the appellant was asked extensive questions about the phone, including the timing of it going of the balcony, the circumstances in which it went off the balcony, and who it was who threw the phone of the balcony.  Essentially, although those questions and answers went on for, in fact, some hours over the course of the interview, the answers boiled down to this:  the appellant said that he had an argument with Mrs Boyce at or about 9.30, there were some different timings given a little bit before and a little bit later, and that in the course of that argument Mrs Boyce had thrown the mobile phone off the balcony.  That is what he had told police.

EDELMAN J:   Yes.

MS O’GORMAN:   That, of course, forms part of the alleged lie, and a critical plank in the Crown’s case against the appellant.

KIEFEL CJ:   Could you remind me, Ms O’Gorman, the evidence about the use of the phone, which was part of the Crown case against your client, prosecution case, when the phone was not in working order when it was recovered from the ground, but the IT person was able to access it and to determine that it had been opened, text messages had been read over a short period of time.  I think he was able to time when that occurred, and the period over which it occurred.

MS O’GORMAN:   Yes, your Honour is quite correct.  Firstly, with respect to the fact that the phone was not operational when the police found it, so initially police could not access it at all.  But the witness Neil Robertson as able to do so.  By way of a forensic examination or extraction of the information in the phone, he was able to establish that at or about 12.04 am, so very shortly after midnight, the phone had been opened; Messages between Mrs Boyce and a romantic interest of her, Kenneth McAlpine, were viewed.

The way that Mr Robertson was able to discern this information was because, as it turned out, or as it turns out, iPhones take internal screenshots ‑ ‑ ‑

KIEFEL CJ:   Snapshot, yes, screenshots.

MS O’GORMAN:   ‑ ‑ ‑ snapshots of activity on the phone, at random, seemingly, points of time.

KIEFEL CJ:   There were three or four, I think, that cropped up here.

MS O’GORMAN:   That is so.

KIEFEL CJ:   And the messages were viewed over a period of some minutes?

MS O’GORMAN:   A couple of minutes, yes.  And there were a number of messages between Mrs Boyce and Mr McAlpine going back a number of months that were viewed.  They were taken as screenshots.

KIEFEL CJ:   In part, and I think Justice McMurdo in the Court of Appeal, in particular, placed weight on the timing of the appellant’s story about the mobile phone and the time at which the phone was viewed.

MS O’GORMAN:   Yes, that is so.  Both Justice ‑ ‑ ‑

KIEFEL CJ:   His Honour thought that was an important aspect.

MS O’GORMAN:   His Honour did, and Justice of Appeal Mullins, as she was then, also considered that was an important aspect and addressed the foundational basis for the proving of that alleged lie in her decision as well.  The fact that the phone did not go off the balcony at or about 9.30 – and I will keep referring to “9.30” for convenience’s sake, acknowledging that there were a couple of different times given by the appellant – was shown to be an untruth because of the fact that it was accessed and messages were looked at, at 12.04.  Plainly, on the face of it, there was an untruth about the timing that the phone went off the balcony.

Critically for the question of whether or not the appellant lied in that respect is a question of whether or not there is a possibility he could have been confused about the time the phone went off the balcony.  He gave that timing by reference to a number of different events.  Some of those were phone calls between Mrs Boyce and other people, including her husband and a real estate agent and friend, Ms Russo, that had occurred earlier in the evening, and the timing of those phone calls could be independently verified on the evidence.

So, to the extent that he linked it to the timing of those phone calls, that also established that it did not go off the balcony at the time that he said.  Nonetheless, we submit that it is possible on the evidence that he was simply confused about the time the phone went off the balcony.

GORDON J:   Is that right in relation to the fact that he also gave evidence that she went to bed at 9.30?  I mean, he gave evidence, I think, that – in the record of interview at least, his answers were that that is about the time she went to bed.

MS O’GORMAN:   Yes.

GORDON J:   So, he has to be confused about both.

MS O’GORMAN:   He has to be confused about the timing of a lot of what happened that night, that is accepted.  His Honour Justice of Appeal McMurdo concluded that that is unlikely in circumstances where he was asked so extensively about the timing and the order of events on that night before by police the very next day.

KIEFEL CJ:   Well, they went over it three or four times, did they not, at least?

MS O’GORMAN:   At least.

KIEFEL CJ:   At least, yes.

MS O’GORMAN:   Potentially more.

KIEFEL CJ:   So, he had opportunity to correct it.

MS O’GORMAN:   He certainly had opportunity to correct it.  He would have had to have been confused about the circumstances for a protracted period of time.  In our submission, that is not beyond the realms of possibility in circumstances where this man, on his case, found his lover dead in the bed earlier that morning, a traumatic and disturbing experience for him as well.  But that is not the ‑ ‑ ‑

KIEFEL CJ:   But you could be confused and not be able to place a timing, but picking a time, which so clearly precedes when it could possibly have occurred, does say rather more, does it not, potentially?

MS O’GORMAN:   It could, and we concede that that may well be the case.  Really, what we say is the difficulty inherent in the Crown’s reliance on the alleged lie is not necessarily so much the timing of it, which in and of itself probably does not say very much about his involvement in the death, it might be more the fact that the Crown relies on the lie also extending to the person who threw the phone off the balcony.

Mr Lang says that it was Mrs Boyce who threw it in the circumstances of an argument.  The Crown alleges that in fact Mr Lang threw the phone off the balcony and he did so because, on the Crown case, they say what must have happened is that Mrs Boyce went to bed earlier in the evening, perhaps, say, around 9.30, that Mr Lang stayed up and accessed her mobile telephone, and it was at that point that he saw text messages.

It was at that point that the motive developed for him such that at the closing the learned Crown Prosecutor addressed the jury in this fashion.  He said it was at that time that he was on the balcony, seeing the text messages, he is feeling betrayed, it is all happening again, “That’s what drove him”, he said that is the point at which he left the balcony, went to the kitchen, got the knife and stabbed Mrs Boyce.

The difficulty with that additional aspect to the alleged lie, that is, the aspect that the Crown says it was established that it was Mrs Boyce who threw the phone, is that the evidence for that is not strong.  It is circumstantial itself.  The first thing we say about it is that to some extent there is some circular reasoning or reasoning backwards from the fact that Mrs Boyce has been found dead and on the Crown case it was the appellant who killed her, to work out how that might have occurred; it might have occurred because he accessed messages and developed the motive to do so.

There was not any other independent evidence that would have established that to be so, though, and we would caution against a finding that the evidence permits the inference that he did in fact access those text messages.  There are a couple of things that need to be noted in that regard, in some respects, most significantly, the fact that the phone was protected in terms of access by a PIN.  There was evidence given by Mr Robertson when he examined the phone that he was able to confirm that there was in fact a PIN which stopped access to the phone such that, if the phone was accessed at or about 12.04, because it had not been used for a period of time, a PIN had to be entered in order to get into those text messages.

KIEFEL CJ:   But at some point the jury would have to ask itself, or Crown – defence had to ask themselves, who would want to read the text messages?  Presumably she knew what they said.

MS O’GORMAN:   To the extent that that might lead to an inference in the jury’s mind that that must mean that it was him, that inference was open for the reason that your Honour has identified.  However, there is a reason why Mrs Boyce might have wanted to access those text messages at that time.  In the weeks and in the days leading up to Mrs Boyce’s death, she was going through a period of time of fractures in her close and important personal relationships.

There had been, a little earlier in time, months earlier, a breakdown in the relationship with her husband, caused when her husband discovered that she was flying over to New Zealand to see the appellant who, so far as the husband knew, was no longer on the scene.  There was an exchange between the two of them that resulted in the husband sending her a message which was quite devastating.  However, it seems that they had reconciled, but that had been a fracture in her relationship with her husband.

It seems that her husband did not know that the appellant had in fact come back from New Zealand and was staying with Mrs Boyce in the apartment.  So, that duplicity between her and her husband was an ongoing issue.  There was an issue also with respect to Mrs Boyce’s daughter who was pregnant at that time and who had, upon finding out about the ongoing relationship with the appellant, also sent her mother a message, quite devastating in its nature, including that she would not – that is, Mrs Boyce – would not ever meet her grandson, and said, this is your fault because of what you have been doing.  So, there was that estrangement from her daughter.  Since that text message had been sent, the two of them had not reconciled.

There was also the fact that the appellant was in the apartment.  It seems as though one of the text messages sent to Mr McAlpine by Mrs Boyce, prior to the death, was, I have had some friends from New Zealand here – one of them will not leave, perhaps I need you to come over and make him leave – I am paraphrasing, but it was a message to that effect.  So, at this point in time, Mrs Boyce was in a state of some fracturing in those close relationships.

KIEFEL CJ:   But the viewing was of the text messages with Mr McAlpine.

MS O’GORMAN:   Yes.

KIEFEL CJ:   So, you would have to connect the husband or the daughter – Mrs Boyce looking at these because of something to do with the husband and the daughter.

MS O’GORMAN:   It can be done in this way and by reference to Dr Spelman’s evidence.  Dr Spelman gave evidence that Mrs Boyce experienced the fear of abandonment from those close to her.  At this point in time, in circumstances where there are difficulties with her husband – seemingly, to some extent, with the appellant – perhaps she is accessing the messages to Mr McAlpine to review, at least, the whole or unfractured relationship between the two of them.  That was also an inference open to the jury, in our submission.

KIEFEL CJ:   Dr Spelman also gave evidence that she had difficulties with – her more extreme behaviour had played out often in her relationships.

MS O’GORMAN:   Yes.

KIEFEL CJ:   You would say “fracturing” relationships.

MS O’GORMAN:   Yes, he did and that, to some extent, her instability revolved around those relationships and when she felt that she was at risk of abandonment from those close to her.  So, for all of those reasons, it was open to the jury to think that she would have been looking at those text messages, either seeking solace from a relationship which was unsullied or looking at messages from between her and Mr McAlpine which had not continued in the day, or days just prior, wondering if he was someone else who had abandoned her.

There is another possibility, of course, and that relates to what the appellant said about the circumstances of the argument which prompted the throwing off of the phone.  He said that that had occurred – that argument had occurred in circumstances where there was some jealously between the two of them – on both sides, on his account – and some suspicion by Mrs Boyce about his involvement with other women, but also in circumstances where he said Mrs Boyce had been speaking to him the day before about a reconnection or a rekindling with Kenneth McAlpine and that he had queried, looking at her phone, at which time she threw the phone off the balcony.

So, on his account of things, on that argument at that time, the argument is about her relationship with Mr McAlpine, and it is possible that those messages between Mrs Boyce and Mr McAlpine were relevant.  It is clear those messages were relevant to the argument, but it is possible that they were being viewed or accessed at that time.

If I may just return very briefly to the issue of the PIN, and the significance of it as we propose to whether or not the jury and this Court now would be satisfied that the alleged lie was established, we say that that PIN is significant because it had to be used in order for those text messages to be accessed at 12.04.  That was established by Mr Robertson, because he could see that the phone had been otherwise dormant for a sufficient period of time that the lock had taken effect again such that the PIN had to be entered.

There was no evidence that the appellant knew the PIN to her phone.  We would suggest or submit that it is very unlikely that Mrs Boyce would have told the appellant the PIN to her phone.

KIEFEL CJ:   Why would you say that?  Why would we draw that inference?  A jury draw that inference?

MS O’GORMAN:   In light of all of the evidence led by the Crown about the circumstances of Mrs Boyce’s relationship, the appellant was there staying at her apartment in circumstances where she still had a relationship with her husband that had not been related to the appellant.  So, had the appellant gone through her phone, he would have seen that in fact Mrs Boyce was still in a relationship with her husband.  It is also possible he would have stumbled upon the evidence ‑ ‑ ‑

KIEFEL CJ:   But he has been there for over two weeks.

MS O’GORMAN:   Yes.  Is your Honour’s question directed to whether or not that would have given him an opportunity to see the passcode?

KIEFEL CJ:   Well, it is just that they have been in an intimate relationship – he has been there for quite some time – and this is not the first time they have been moving – he has been moving or they have been moving between Australia and New Zealand, so they had known each other in an intimate relationship for some period.

MS O’GORMAN:   That is so.  But in our submission, that would make it less likely that Mrs Boyce would have told the appellant her passcode because Mrs Boyce had told the appellant that she had ended the relationship with Dr Boyce, and she was engaged to the appellant and was coming back to New Zealand with the appellant.  Accessing her phone would have revealed that that was not the case or at least that is not what Mrs Boyce was telling Dr Boyce – there was an ongoing relationship between her and Dr Boyce as well.

Further to that of course, accessing the phone would have revealed that Mrs Boyce was also in a continuing relationship with Kenneth McAlpine.  So, we say it is unlikely in those circumstances that level of duplicity – if I can put it that way – in a romantic relationship that Mrs Boyce was conducting, that she would have given one of her lovers access to her telephone.

Support for that proposition can be gained from the evidence given by Dr Boyce at the trial.  He had been to Mrs Boyce for nearly 40 years at the time of Mrs Boyce’s death.  He was asked about whether or not he knew the PIN in cross‑examination and he confirmed that he did not, that Mrs Boyce had never told him the PIN to her phone either.

As to the fingerprint, which was a matter that the Crown relied upon as a primary fact establishing a basis from which it could be inferred that it was the appellant who accessed the text messages rather than Mrs Boyce, we point to the evidence given about the lifting of that fingerprint by the scientific officers that ultimately was, although a fingerprint could be found, placed horizontally – I believe at the bottom of the phone – ultimately, there was some controversy about whether it was at the top or the bottom, but it was cleared up by the Crown in the trial that it was at the bottom, placed horizontally, not on the home button but off to the side – that the scientific officer confirmed there was no way that they could identify when that fingerprint was placed there.

That being the case, on our submission, it is a neutral fact and certainly not one which significant weight could be placed on in terms of drawing the inference that it was the appellant who accessed those text messages, because of the very reason that your Honour the Chief Justice identified just before – Mr Lang had been at the apartment since 6 October, a period of some two weeks.

He had, of course, also been with her earlier, but I would not be suggesting necessarily the fingerprint would have remained from that earlier time.  But in circumstances where he had been there for a period of time, there is every opportunity for him to be passing a telephone to her at her request, for example, or otherwise touching the phone in the course of moving it around the apartment as a result of him just living in the apartment.  That would have explained that fingerprint and it could not be linked to his accessing the phone at 12.04 or thereabouts.

I wonder, in circumstances where I have now been spending some time on the alleged lie, if it might not, nonetheless, be useful for me to return to the submissions that I was making about the significance of the absence of a struggle or whether it would be preferrable that I continue to make submissions now with respect to the alleged lie.

KIEFEL CJ:   I think we would leave it entirely to you.

MS O’GORMAN:   Thank you, your Honour.  If I can then return to significance of the absence of a struggle, and I was going to introduce this part of my submissions in this way:  it is important to recall that the knife entered Mrs Boyce’s body while she was lying in the bed.  That is established by the fact that the blood on the body and the bed was centred around one area – there had not been a trail of blood suggesting she was moved at any point in time once the wound was inflicted.

Dr Ong’s evidence was to the effect that the bleeding would have started very soon after the knife entered the body and so there is no prospect, on our submission, that she was wounded somewhere else and moved to the bed.

EDELMAN J:   There was some cross‑examination about the crouched position that she was found in.  What was the significance of that?

MS O’GORMAN:   The significance of that is it casts some considerable doubt, in our submission, on the Crown case that the appellant was fast asleep in her bed at the time that she was wounded.  Given how the deceased’s body was found lying – essentially, on her back with one arm raised and the other hand on the knife – on the Crown’s case the deceased, Mrs Boyce, would have been lying asleep, essentially, flat on her back at the time she was attacked.  That was the theory that the Crown had to advance.

Why the issue of crouching became significant is because it suggests that she may well have not been lying flat on her back at the time of her death.  The crouching came about in circumstances where Dr Ong gave extensive evidence about the knife entering the abdomen.  The way ‑ ‑ ‑

KIEFEL CJ:   Can we just clarify what is meant by “crouching”?

MS O’GORMAN:   Yes.

KIEFEL CJ:   What is meant by “crouching”, on the evidence, was not sitting and crouching over.

MS O’GORMAN:   No.

KIEFEL CJ:   It was – it could have been lying in a slightly bent position.

MS O’GORMAN:   Yes.

KIEFEL CJ:   The body slightly bent.  Because its relevance was that the knife passed through to points in the body which would not be expected if the person had not been slightly turned in some way.

MS O’GORMAN:   Yes, that is so, your Honour.  The knife would not have passed through at least two of the structures in respect of one of the tracks had the body been lying prone. it could only have been if there had been a slight crouching.

KIEFEL CJ:   Did the Crown have to establish she was lying flat on her back or was it sufficient that she was lying but bent slightly to one side?

MS O’GORMAN:   The Crown did not have to establish that she was lying flat on her back, but in circumstances where she was found in a position consistent with that, that is what we say the significance of the crouching – that was how that arose with Dr Ong.

The wound was constituted by a single entry-point, and I will not take the Court through the extensive evidence that Dr Ong gave.  He was, by virtue of his expertise as a pathologist, well able to look at the different tracks which constituted the wound and gave extensive evidence about that.  There had been four or five movements of the knife within the wound.  Mrs Boyce was physically capable of inflicting the wound.  Death was not caused by the wound itself but by the blood loss consequence upon the wound.

One hypothesis was raised on the evidence, or which was raised on the evidence, was that Mrs Boyce had inflicted the wound with the intention of ending her life in much the same way that a person might cut their wrists and wait for the bleeding to take their life.  In the circumstances, evidence of an attempt to resist an attack, or to seek help, would have circumstantial evidence, important circumstantial evidence which supported the Crown case.

Conversely, we say, evidence of an absence of an attempt to resist an attack, or to seek help by getting up from the bed and making a telephone call, for example, is circumstantial evidence which not only detracts from the Crown case, but which positively supports the innocent hypothesis.

GAGELER J:   Was there evidence of how long it would have taken for there to be a loss of consciousness from this blood loss?

MS O’GORMAN:   Yes, there was.  Ultimately, that evidence crystallised at about page 283 of the appellant’s further material, which is the transcript with respect to Dr Ong’s evidence in cross-examination of him on the point of how long it would take to lose conscientiousness, be sufficiently weakened that she could not move, or die.  Dr Ong’s evidence was that it would have been a matter of minutes before she was weakened to the point of not being able to move.

GORDON J:   Did he say 15 minutes?

MS O’GORMAN:   He did say 15 minutes.  In the circumstances of that evidence, it appeared that that was an outside estimate to clarify whether it could be – whether that window could be constrained at all.  There were some further questions asked in cross-examination.  Ultimately, Dr Ong said that it could have been as little as a matter of five minutes, but he certainly said, and repeated, that it would have been a matter of minutes, and not a matter of seconds, and that is what is important.

Because, of course, if, our submission about the absence of a struggle is significant, that submission only has force if the evidence established that Mrs Boyce was physically capable of struggling after the wound was inflicted.  And so ‑ ‑ ‑ 

GORDON J:   Was she also physically capable of moving?

MS O’GORMAN:   Yes.  So, I just want to pause here so that we can set out the evidence that establishes that that was so.  It came primarily from Dr Ong, and Dr Ong was able to establish by virtue of the autopsy that he performed on Mrs Boyce’s body that Mrs Boyce was alive when the wound was inflicted.  It was not the case that she had been killed by some other means and then the wound was inflicted on her.  That is important as a primary stepping stone, of course.

He was also able to say that she was not smothered or asphyxiated at or about the time that she died, and he gave that evidence by reference to examinations that he did of her eyes and her gums which did not reveal any particular haemorrhages consistent with smothering or asphyxiation.  That evidence was important because, if she had been either killed or rendered unconscious by smothering, for example, at the time the wound was inflicted, the lack of a struggle might not matter.

Toxicology results revealed the presence of both drugs and alcohol in her system.  In respect of the presence of alcohol, the evidence that Dr Ong gave about that was that the alcohol was present in her system at .049, which is a little less than the legal driving limit.  He gave evidence of various drugs found in her system, all of which were prescription‑based and none of which would have impeded her ability to struggle, save potentially for the diazepam or the Valium which was in her system, but Dr Ong said that the prescription medication found in her system was either at therapeutic or sub‑therapeutic amounts.

JAGOT J:   He was a little more equivocal than that, was it not?  He did not seem to know a lot about the various drugs in her system, on my reading of it.  He identified them.  I thought that his evidence was it really depends on the person and how they respond to drugs.  Anyway, it is at 268, it seems.

MS O’GORMAN:   Thank you, your Honour.  Certainly, there was evidence, from my recollection, of a drug which was a hypertensive medication.

JAGOT J:   There is a hypertensive, there is diazepam, there is olanzapine, there is venlafaxine.

GORDON J:   Maybe that what you were having a think about is at 286 to 287, where ‑ ‑ ‑ 

MS O’GORMAN:   Thank you, your Honour.  Sorry, I certainly did not mean to cut you off ‑ ‑ ‑ 

GORDON J:   That is fine.

MS O’GORMAN:   ‑ ‑ ‑ but that was the point that I was going to go to, and the evidence, of course ‑ ‑ ‑

JAGOT J:   It is fairly subjective:

the simple answer is that I probably would not know.

It is at 286 at line 44:

it’s fairly subjective on how one can be affected.

I read it as he really did not know, except it was possible that she might – I suppose there is the answer again, also at – you have to read that in context.

MS O’GORMAN:   Your Honour, might I address you directly on that particular part of his evidence, and your Honour, of course, is referring to his cross‑examination on this point which commences on page 286.

JAGOT J:   Yes.

MS O’GORMAN:   The way that that passage of cross‑examination commenced is with the question whether Dr Ong would characterise the presence of those drugs as all being at therapeutic or sub‑therapeutic levels and he confirmed ‑ ‑ ‑

JAGOT J:   Therapeutic does not mean that it could not sedate.  That is the whole purpose of some of these drugs, is to sedate you.

MS O’GORMAN:   Certainly, but if I may just step through what we say is the significance of the next part of the questions and answers.  Your Honour, he was then asked whether he agreed, essentially, that there was:

nothing about the combination of the drugs and the alcohol in her system which would have stupefied her or prevented her from moving –

His answer commenced with:

There’d be some additive effects of the alcohol with the drugs –

But he went on to say:

the simple answer is that I probably would not know.

About, it may be inferred, the precise additive effects of those drugs.  What is important, in our submission, is the next question, which took him to, essentially, the very nub of that issue.  He was asked:

With that level of alcohol and those levels of drugs in her system, if Mrs Boyce was stabbed by somebody other than herself, she would not have been prevented –

It is this part:

All I want to establish right now is that there’s nothing about the level of alcohol and drugs in her system that would have prevented her from fighting back?‑‑‑Yes.

You agree with me?‑‑‑Yes, I do.

JAGOT J:   No, I understand that.  I guess I was reading that in context of absolutely, there is nothing about that level of alcohol and drugs, but subjectively on an individual person he does not know because everything turns on how – I guess – susceptible an individual person – maybe I am misreading it, I do not know.  That is how I read it.  Because also one of the curious things is he also gives evidence about the not moving, that it taking maybe minutes, not seconds, is he gave evidence that it would have been very painful, and yet there is no movement as well.

I am just finding that curious, as in what does no movement mean?  If you have stabbed yourself and it is incredibly painful you may be likely to move, roll, whatever, inadvertently or whatever, just as much as if someone else had stabbed you and you were trying to fend them off or get help or whatever, there is no movement either way.

MS O’GORMAN:   Well, there is no significant movement, and that is different to the possibility that she has moved or flinched at the time of inflicting an injury, whether voluntarily or otherwise, because the blood would still have seeped out from her body, even if there is some flinching, and nonetheless pooled in the way that it was on the bed.  The significance, of course, is the absence of a struggle, more significant movement in an attempt to resist an attack, as it were.

KIEFEL CJ:   I suppose it depends how much time you have – what your response is going to be if you have got a window of a few minutes, and that is where the effect of the combination of alcohol, particularly with the diazepam, I would imagine, might play out, but Dr Ong was not able to be definitive about a particular person, as Justice Jagot has pointed out.

MS O’GORMAN:   Yes, and, in our submission, a reading of that passage of his evidence is sufficient to establish that he could not be precise about how the drugs and alcohol might affect Mrs Boyce specifically as opposed to somebody else, but nonetheless he was able to say, and did say, in our submission, quite definitively that she would not have been prevented from fighting back against an attacker if there was one based on the level of drugs and alcohol which he knew to exist in Mrs Boyce’s body.

KIEFEL CJ:   If she had had the time to respond.

MS O’GORMAN:   Yes, but those questions were premised upon whether or not she would have had the time to respond, and he was quite clear in his evidence that it would have taken ‑ ‑ ‑

KIEFEL CJ:   I am not sure – it is a question of how one reads that aspect of the evidence, and the question was directed to just fighting back.  There is a sort of liminal period where if she was attacked, she would have had to respond from a sleeping state with alcohol and drugs in her system, perhaps during her – and there is a matter of a few minutes for her to appreciate what has happened and respond.  That is the period that really was not gone into – probably for good reason.

MS O’GORMAN:   With the evidence given by Dr Ong, in our submission, the overwhelming inference left, taking all of his evidence, was that she was able to fight back and, at the same time, that it would have taken a number of minutes, not seconds, for her to die.  His equivocation about his inability to say how those particular drugs and alcohol might have affected Mrs Boyce had to be seen in the context of his evidence about the time to die, which ranged from five to 15 minutes and certainly not, even when pressed, anything like a number of seconds.

KIEFEL CJ:   Was Dr Ong asked anything about the combination of alcohol and diazepam – about what effect it could have?

MS O’GORMAN:   Yes, that was the point of the questions that appear – or start at page 286 and follow over.

KIEFEL CJ:   What did he say?

MS O’GORMAN:   In respect of the combination?  The question was:

And there’s nothing about the combination of the drugs and the alcohol in her system which would have stupefied her or prevented her from moving; is there?

That is when he gave the answer:

There’d be some additive effects of the alcohol with the drugs . . . the simple answer is that I probably would not know.

KIEFEL CJ:   Right, thank you.

MS O’GORMAN:   To clarify that, the further question was asked whether his evidence was that there was nothing about:

that level of alcohol and those levels of drugs –

So, the reference to the reference to the combination again which would have prevented her from fighting back if there was an attacker and he said, yes, that is right – he adopted that proposition. 

GAGELER J:   Ms O’Gorman, presumably the insertion of the knife and then the movement of the knife would have occurred within a very short period.

MS O’GORMAN:   Yes.

GAGELER J:   Seconds?

MS O’GORMAN:   Yes, your Honour.  Dr Ong gave evidence that it could have occurred within a number of seconds.

GAGELER J:   Once that had occurred, in what sense is it meaningful to think about “fighting back” over the next five to 15 minutes?  What would you be “fighting back”?

MS O’GORMAN:   It would not even have to be a fight back over five to fifteen minutes, but upon the insertion of the knife, in those circumstances, in our submission it would defy credulity that somebody, even with the level of alcohol and drugs that Mrs Boyce had in her system, would not have woken up, firstly, from an insertion like that and would not have wanted to fight back.  The question of whether “fight or flight” as a physiological response would have kicked in for Mrs Boyce was canvassed with Dr Ong and he said that it would have.

The point that we say is that, at that point in time, if it was somebody other than Mrs Boyce who inflicted that wound, that she would have immediately – do not worry about the five to 15 minutes – immediately reacted and sought to fight back.  If the wound was inflicted by the appellant – as per the Crown case – then the appellant was there at that time of the insertion of the knife.  If Mrs Boyce wanted to resist the knife being in her or resist the death that would follow if she did not seek help, she would have been seeking to push the appellant off her.

JAGOT J:   That assumes, though, that she is immediately – I mean, if you are asleep, unconscious – she has got three sedating things, four if you count alcohol, in her system.  It is not just diazepam.  She has got anti‑anxiety – olanzapine and venlafaxine – as well – there are all in her system.  She is asleep.  The knife is in before she knows it and it could even be in and retracted and in again before she knows it is so, and he could be gone.  I am just saying these are possibilities – there is nothing to fight against, necessarily.  Is your point more, would you not move, would you not do something?

MS O’GORMAN:   Yes.

JAGOT J:   That makes more sense to me, but then again, I think you would do something – would you not move – it is a very painful, according to Dr Ong – it is not a painless way to kill yourself.

MS O’GORMAN:   He said it was probably very painful and gave that evidence by reference to the nerve endings in the skin.  Nonetheless, your Honour, as jurors would be aware as a matter of common experience, people do die by suicide in circumstances where they have cut themselves in one way or another, and that would be painful.

JAGOT J:   Sure, Dr Ong gave that evidence that people can kill themselves by painful methods, it is just the lack of movement that I am focusing on – it seems it does not necessary point one way or the other.  But you are saying it does, I understand that.

MS O’GORMAN:   Yes, on our submission, it is a very significant matter.  And I just refer your Honour, or remind your Honour that we rely, really, on three aspects there.  Firstly, we say that the tenor of Dr Ong’s evidence was that she would have been capable of fighting back – that she would have not been sedated to the point that she would have slept through the attack, and that she would thereafter have been able to fight back against an attacker if there was one – or, inferentially, if the appellant had inserted the knife and then left, that there would have been an ability to move, perhaps to reach a telephone or to go.  That clearly did not happen.

Also significantly, in this respect, is the fact that the Crown did not lead any positive evidence from anyone – Dr Ong or otherwise – that she would not have been able to move or resist an attacker.  And thirdly, we say the proposition that she would not have been simply does not sit with common life experience.

JAGOT J:   Sorry, I missed the third one, sorry?

MS O’GORMAN:   That it simply does not sit with common life experience, in our submission, that notwithstanding the alcohol and drugs present at the fairly low levels that they were, that it would be very unlikely that somebody would sleep through an attack like that.  I do not mean for one moment to be flippant, but the reality is that people do wake up at night-time simply because their bladder is full and they need to go to the toilet.  The fact that a knife could enter the body, be moved in and out a number of times – some four or five times – and that somebody would be able to sleep through an attack in these circumstances, in our submission, is just inherently very unlikely.

GORDON J:   Is this “fighting back” – does that include access to the telephone?  Is that part of this analysis?  Or is it separate?  In other words, I had understood from your case that there were these, in effect – maybe you are coming to it.

MS O’GORMAN:   Is your Honour ‑ ‑ ‑

GORDON J:   Well, you say, as I understand you – the way you just put it – is there is an absence of fighting back and that is consistent with the hypothesis of suicide ‑ ‑ ‑

MS O’GORMAN:   Yes.

GORDON J:   ‑ ‑ ‑ and I had understood also that there was a reliance upon the fact that there was a telephone next door on her bedside table which she could have reached.  Is that part of the “fight back” analysis, or is that a different analysis?

MS O’GORMAN:   No, it really does go hand in hand with our submissions about the lack of a fight back.  We would put it in in the sense that there are two potential scenarios if it was the appellant who had inflicted the wound, and assuming, for present purposes, that she could fight back.  As we say, the evidence established that she could.

Two scenarios would have arisen if it was the appellant who inflicted the wound.  We say that he would then have had to have subdued Mrs Boyce for a period of time while she bled out sufficient that death could overcome her, and that there would have been evidence of a struggle if he had done that.  In that regard your Honours, will remember that the evidence of Dr Ong was that the entry wound of the knife into the body was greater in size once the body had been moved to the morgue than it was when he say it, so that any movement of the knife around her body would be causing the wound to expand.

Had Mr Lang had to restraint her, there would have been some holding her down, it is likely that wound would have enlarged in size, there would have been evidence of the struggling on sheets, for example, consistent with that struggle.  The alternative scenario, were it Mr Lang who had inflicted the knife wound, is that he inflicted it and then left, which meant that then Mrs Boyce, upon waking, did not need to fight off an attacker but she would, nonetheless, as a matter of evidence given by Dr Ong about the physiological flight or fight response, but also as a matter of, we say, common sense, she would have sought help at that point in time.

That could have involved her leaving the apartment; we know she did not do that.  It could have been a matter of reaching for the phone next to her to make a telephone call, and that was not done either.

EDELMAN J:   The phone was dislodged, was it not?

MS O’GORMAN:   Yes.  That is probably not surprising in circumstances where the appellant – rather, Mr Lang gave evidence in his interviews that he had telephoned.  At least part of the telephone call, because it took part in two places because they got disconnected, was done from that phone immediately upon finding Mrs Boyce’s body.

It would have been dislodged, and presumably he did not put it back in the cradle in his hurry.  We would say nothing turns on that in respect of Mrs Boyce’s ability to make a phone call, or whether, in fact, she did try to make a telephone call in those circumstances.  There was no blood on or about the telephone that was recovered by the forensic officers.  On that ‑ ‑ ‑

EDELMAN J:   Was there any evidence about attempts to remove the knife?  The knife was found fully immersed in her abdomen.

MS O’GORMAN:   Yes.

EDELMAN J:   And there had been multiple stab wounds.

MS O’GORMAN:   Yes.

EDELMAN J:   But was there any evidence about what would have happened if she had attempted to remove the knife; the size of the wound?

MS O’GORMAN:   No, there was no evidence about that at all.  There was no evidence given about whether there had been an attempt to remove the knife, save to say that Dr Ong was able to give evidence about each of those tracks, and that the last of them left the knife positioned where it was in the body.

Dr Ong’s evidence was, as your Honours will recall, also that the wound was not of such kind as it would have immediately disabled her.  That is significant as well, in our submission, because if she could have woken there is also a question of whether or not, nonetheless, being awake or being conscious but otherwise rendered disabled by the wound might have accounted for the lack of a struggle.

But he gave evidence that it would not have immediately disabled her.  He gave evidence, for example, the knife did not sever her spinal cord.  He analysed and gave evidence about those various angles of the tracks and it was quite clear from all of that evidence that the wound itself was not the cause of the death or immediately disabled her; it was that consequent blood loss.

I have addressed already, at least inherently in respect of some of my answers to your Honour Justice Jagot, what we say by way of reply to what the Crown says about the absence of a struggle.  The Crown says that Mrs Boyce did not struggle because she was asleep and unconscious or fatigued, and we have already made submissions in response to that assertion – that there was not evidence led at the trial that supported that argument now.  That it is not supported by the tenor of Dr Ong’s evidence on the question of the drugs and alcohol in her system and her ability to move, and we would also say it does not accord with common life experience that she would not have moved in those circumstances.

I think it unnecessary that I go into the evidence that establishes a struggle did not take place.  I think it is entirely uncontroversial as between the parties that the evidence simply does establish that there was no struggle.  So, in those circumstances we say that in a case where the only possible explanations for the death is that it was murder or suicide, this feature of the Crown case was in fact devastating to the Crown case because, we say, it points to the death being one of suicide.

Even if, contrary to our submissions, the court did not find that it is a matter which positively advances the defence case, at the very least it becomes a neutral circumstance, and when taken with the other circumstances, which I will turn to now related to Mrs Boyce’s mood, depressed or otherwise, the motive and the alleged lie could not, even when joined together, take the Crown case to an end point of a verdict beyond a reasonable doubt of guilt.

I should say, before I move on, that, in our submission, the approach taken by the Court of Appeal in respect to this important part of the defence argument was not to engage with the evidence of Dr Ong – and, of course, I say this with the utmost respect – with the evidence of Dr Ong and what it meant for the defence contention that the evidence consistent with innocence was left open.  Rather, the Court of Appeal’s decision traversed the evidence given by the various witnesses, ultimately concluded its determination that the verdict was not unreasonable without grappling with those important aspects of the case which we say supported the defence case.

Can I turn now to what we say – if we have on the one hand our submissions that the circumstances of the death are significant, I had flagged that on the other hand I would also address the critical planks of the Crown case being evidence of depressed mood, motive and the alleged lie, and submit that those matters did not take the Crown case to a point beyond reasonable doubt, and those are the matters I wish to turn to now.  I will be doing these in some briefer compass than the time that I have spent on the circumstances of the death.

So, if I could turn to the first of those three, that is, the evidence of Mrs Boyce’s mental health, and again if I can just in summary form identify some of the evidence led by the Crown case about that fact, bearing in mind that your Honours of course will have read all of that evidence, and it came from Mrs Boyce’s family, some of her friends and of course her treating practitioner, Dr Spelman.  Dr Spelman, as your Honours will recall, gave evidence that he had been treating Mrs Boyce since 2001, by which time she had already had quite a lot of treatment for a depressive illness, some of which had worked, he said, some of which had not, all of which dated back to about 1992.

The final matter I wished to say anything about was my learned friend’s submission that it was odd – or I think he was suggesting unlikely – that the appellant could have seen and described the knife in Mrs Boyce’s body when he went into the bedroom the next morning as being in her abdomen.  In circumstances where he refers to Officer Weijers’ evidence on that point as having said that the knife appeared to be in the chest and by reference to a photograph, which I think appears on page 17.

I would just ask your Honours to have regard to the photograph on page 22 of the respondent’s further material.  In my submission, that photograph makes it quite clear that it could be fairly and reasonably said that the knife appeared to be in the deceased person’s abdomen, to the extent that that matters.  Those were the ‑ ‑ ‑ 

EDELMAN J:   Which was the photo that was closest to the point at which the police and the paramedics arrived?  Is it the photo at 17 or the photo at 22?  Or are they the same photo from different angles?

MS O’GORMAN:   That is the same photograph, your Honour, but taken at different angles.  It does show the position of Mrs Boyce’s body as would have been apparent to the respondents once that pillow had been moved from the place where it was up against her body.  They were taken at the same time, those two photographs.  My point is that if has regard to the photograph at page 22, it just makes it a little clearer, by virtue of the angle, and the closeness of that photograph, that the knife could fairly be described as having been in the abdomen.

Those are the matters I wished to raise, may it please the Court.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday,16 May.

AT 2.17 PM THE MATTER WAS ADJOURNED