Malcolm Patrick O'Driscoll v The State of Western Australia

[2013] HCASL 122

MALCOLM PATRICK O'DRISCOLL

v

THE STATE OF WESTERN AUSTRALIA

[2013] HCASL 122
P23/2013

1. The applicant was convicted of wilful murder following a trial before Heenan J and a jury in the Supreme Court of Western Australia.  He applied out of time to the Court of Appeal of Western Australia for leave to appeal against his conviction.  His application was made on two grounds.  The first complained of the admission of "relationship evidence" and the second complained of the trial judge's failure to direct adequately the jury on expert evidence concerning possible causes of death.  The Court of Appeal (Martin CJ, Pullin JA and Hall J) found that there was no substance in either ground and dismissed the application. 

2. The applicant applies for special leave to appeal from the orders of the Court of Appeal, which were given on 10 August 2011.  He also applies for an order dispensing with the time limit for the filing of his application.  He has filed an affidavit which provides an explanation for the delay.  The requirement of the Rules with respect to the time for filing the application should be dispensed with and the application considered on its merits.

3. The applicant and the deceased had been living together in a de facto relationship for about five months at the time of her death. 

4. The prosecution case may be summarised as follows.  At about 7.30am on 20 May 2007 the applicant called an ambulance to the unit in which he and the deceased were living.  When the ambulance officers arrived, the applicant appeared to be administering cardio-pulmonary resuscitation to the deceased.  She had no vital signs.  The police were called to the scene. 

5. In a statement made to the police the applicant gave an account of the events of the previous evening.  He said that he and the deceased had been having a few drinks, listening to music and dancing.  The deceased had gone into the bedroom, apparently to change her clothes.  He heard a choking sound and went into the room to find the deceased squeezing her throat with both hands.  She collapsed to the ground and he tried to resuscitate her.  He left her to summon the ambulance.  On his return she was not breathing.  Their relationship had been "pretty good" and they were "happy you know being together". 

6. The prosecution led evidence from a number of witnesses to establish that the relationship between the applicant and the deceased was troubled and that the applicant had been physically violent towards the deceased. 

7. The prosecution relied on the evidence of a forensic pathologist, Dr Cooke, that the deceased's injuries were consistent with manual strangulation.  Dr Cooke said that it is not possible for a person to strangle herself in the manner described by the applicant. 

8. The prosecution also relied on the evidence of Sean Currey.  Currey shared a cell with the applicant following the latter's arrest.  His evidence concerned a conversation with the applicant about the circumstances of the death of the deceased.  Currey said that in the course of that conversation the applicant made gestures indicating that he had strangled the deceased.

9. The Court of Appeal held, correctly, that the evidence respecting the nature of the relationship between the applicant and the deceased had been rightly admitted[1]. 

   [1]Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17.

10. The second ground related to the sufficiency of the directions concerning answers given by Dr Cooke in cross-examination of the possibility that the cause of death was a reflex cardiac arrest or choking.  The Court of Appeal summarised Dr Cooke's evidence in these respects as being that neither mechanism could be excluded as a theoretically possible cause of death, but that they were entirely speculative possibilities unsupported by the evidence and his observations[2].  Dr Cooke's observations at the post-mortem examination were of bruising to the tissues of the neck, internal bleeding into the glands of the neck and a fracture to the right superior horn of the thyroid cartilage.  Dr Cooke considered that these injuries were consistent with the application of a significant degree of force. 

    [2]O'Driscoll v The State of Western Australia [2011] WASCA 175 at [84].

11. The trial judge dealt specifically with Dr Cooke's evidence of the possibility of a reflex cardiac arrest or choking as the cause of death in the course of his summing-up.  The Court of Appeal concluded that the directions had provided fair and clear assistance to the jury with respect to the opinion evidence on the cause of death.  There is no reason to doubt the correctness of that conclusion. 

12. The applicant's written case is largely directed to claimed factual deficiencies in the prosecution case.  His proposed grounds include a challenge to the admission of the evidence of Sean Currey.  The complaint concerning its admission was not agitated before the Court of Appeal.  It is not clear that the evidence was objected to at trial.  Nothing in the applicant's written case suggests that the evidence was wrongly received.  The trial judge warned the jury of the need for special care before relying on the evidence to reason to guilt.

13. If special leave were granted there is no prospect that the appeal would succeed.

14. The application is dismissed.

15. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

V.M. Bell
14 August 2013 S.J. Gageler