Maskell v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0024

TROY MASKELL	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, KENNEDY and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2025
DATE OF JUDGMENT:	11 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 170
JUDGMENT APPEALED FROM:	DPP v Maskell [2023] VSC 689 (Lasry J)

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CRIMINAL LAW – Leave to appeal – Conviction – Manslaughter by unlawful and dangerous act – Throwing object at head and kick to hip – Whether substantial miscarriage of justice occasioned by jury directions on causation – Where multiple contributing factors to cause of death – Complex medical evidence – Where directions found to be consistent with ‘substantial and significant’ cause test – Ground not established.

EVIDENCE – Hearsay – Exceptions to hearsay rule – Opinion evidence – Business records – Whether medical records were inadmissible – Where trial counsel made a forensic decision not to object to medical records – Ground not necessary to determine.

EVIDENCE – Tape recording of offender demanding CCTV footage of assault be wiped – CCTV footage of offender’s arrival and departure from scene – Whether evidence was prejudicial or irrelevant – Where evidence of post-offending conduct involved use as incriminating conduct reasoning – Appeal allowed.

Jury Directions Act 2015, s 65(b); Evidence Act2008, ss 65, 69, 76–79, 137; Criminal Procedure Act 2009, s 276(1)(b); Coroners Act 2008, ss 4, 10, 14, 52.

Royall v The Queen (1991) 172 CLR 378; Swan v The Queen (2020) 269 CLR 663; Robb v The Queen [2016] VSCA 125; De Silva v The Queen (2019) 268 CLR 57; Schanker v The Queen [2018] VSCA 94; R v Birks (1990) 19 NSWLR 677; Crampton v The Queen (2000) 206 CLR 161; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 162 A Crim R 301; R v Jung [2006] NSWSC 658; Lowe v The Queen [2015] VSCA 327; R v Wills [1983] 2 VR 201; Wilson v The Queen (1992) 174 CLR 313; R v Besim (2004) 148 A Crim R 28; R v Thomas [2015] NSWSC 537, applied.

Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62, distinguished.

Saddick v The Queen [2018] VSCA 249; Pompei v the King [2023] VSCA 71; Healy v the King [2024] VSCA 81; Lane v The Queen (2013) 241 A Crim R 321; Hothnyang v The Queen [2014] VSCA 64; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Jausnik v Nominal Defendant (No 3) [2015] ACTSC 131; Lithgow City Council v Jackson (2011) 244 CLR 352; Lancaster v The Queen (2014) 44 VR 820, referred to.

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Counsel
Applicant:		Ms G Connelly SC with Ms B Kelly
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

PART A:. INTRODUCTION
PART B:. SUMMARY OF THE OFFENDING
(1).... The incident
(2).... Medical treatment at Goulburn Valley Hospital
(3).... Medical treatment at Royal Melbourne Hospital
(4).... Death
PART C:. THE ISSUE OF UNLAWFUL AND DANGEROUS ACT
(1).... The prosecution case on unlawful and dangerous act
(2).... Defence case on unlawful and dangerous act
PART D:. THE ISSUE OF CAUSATION
(1).... The prosecution case on causation
(a)          General
(b)          Medical notes on characterisation of subdural haematoma
(c)          Medical Notes on connection between Clexane and rebleed
(d)          The opinions of expert witnesses, Dr Baber and Dr Iles
(e)          Concessions by Dr Baber and Dr Iles
(f)          The prosecution’s final address on causation

(2).... Defence case on causation
(a) The defence case on the CAA hypothesis
(b) The defence case on subdural haematoma

PART E:. GROUND 1
(1).... Ground 1(a)
(a)          Parties’ submissions
(b)          Analysis
(i)     Overview of our findings
(ii)    The substantial or significant cause of death test
(iii)   The charge on causation
(iv)   The broader legal question on ‘take as one finds’ principle

(2).... Ground 1(b)
(a) Parties’ submissions
(b) Analysis

(3).... Summary
PART F:.. GROUND 3
(1).... Introduction
(2).... The applicant’s demand to wipe the CCTV footage
(a)          The evidence and the trial judge’s ruling
(b)          The parties’ submissions
(c)          Analysis

(3).... The CCTV footage of the applicant’s arrival and departure
(a)          The evidence and the trial judge’s ruling
(b)          The parties’ submissions
(c)          Analysis

PART G:. GROUND 2
(a)          The parties’ submissions
(b)          Analysis
(i)     Unnecessary to determine this ground
(ii)    The Dr Bowtell cause of death representations

PART H:. A FURTHER MATTER
PART I:.. CONCLUSION

EMERTON P
KENNEDY JA
KIDD JA:

PART A:INTRODUCTION

On 14 August 2023, following an eight day trial in the Supreme Court of Victoria, Mr Troy Maskell (‘the applicant’) was found guilty of the manslaughter of Mr John Burke. On 6 December 2023, the applicant was sentenced to 8 years’ imprisonment with a non-parole period of 5 years.
This case involved an assault by the applicant upon Mr Burke in the early morning of 8 August 2021 at a Shell service station located in Strathmerton, near Shepparton. The applicant and his family had stopped at the service station to refuel. The applicant approached Mr Burke inside the service station. After a brief interaction, the applicant threw a full one litre bottle of sports drink which struck Mr Burke in the head. The applicant then kicked Mr Burke. The assault was unprovoked.
Mr Burke suffered a number of injuries including a traumatic subdural haematoma and fractured pelvis. He was hospitalised. Over the ensuing weeks, Mr Burke experienced a number of medical complications including further bleeding on the brain as well as changes to his brain. At one point, a craniotomy was performed on him. Almost two months later, whilst an inpatient of the Royal Melbourne Hospital, Mr Burke died.
An application for leave to appeal against conviction was filed with this Court on 14 February 2024. Leave to appeal was sought on three grounds:
Ground 1. A substantial miscarriage of justice was occasioned by errors of law in the directions on causation.
Ground 2. A substantial miscarriage of justice was occasioned by the erroneous introduction of evidence that was:
(a)inadmissible by reason of the opinion rule;
(b)inadmissible by reason of the hearsay rule;
(c)not adduced in compliance with Supreme Court Practice Note SC CR 3; and
(d)not part of the prosecution case as identified in the summary of prosecution opening.
Ground 3. A substantial miscarriage of justice was occasioned by a wrong decision to admit Exhibit E ‘CCTV camera 1’ evidence and the ‘wipe this footage’ evidence in circumstances where it was irrelevant or ought to have been excluded.
The application for leave to appeal was heard on 5 May 2025.
Ground 1 essentially concerns the directions given by the trial judge to the jury on the issue of causation as it related to Mr Burke’s pre-existing medical conditions and diseases. For the reasons that follow, ground 1 is not established.
Ground 2 involves various complaints relating to the admissibility and use of the hospital medical records concerning the diagnosis and treatment of Mr Burke. Most of the complaints concern the admission and use of these records as hearsay opinion evidence. We have found it unnecessary to determine ground 2, given the orders we propose in relation to ground 3. We are also conscious that in any retrial the evidential and forensic landscape is likely to be different from that which existed at this trial. We have, however, made some observations for the benefit of those involved in any retrial.
For the reasons that follow, we have upheld ground 3 in relation to the wrongful introduction into evidence of the post-offence demand by the applicant of the service station attendant that the CCTV video tape recording of the assault be wiped. This invited incriminating conduct reasoning. It was inadmissible and introduced in non-compliance with the Jury Directions Act 2015. This resulted in a substantial miscarriage of justice. As a result, we have ordered that there be a new trial.
PART B:SUMMARY OF THE OFFENDING
(1)The incident
Mr Burke was aged 73 at the time of his death and was not known to the applicant.
On 7 August 2021, the applicant, his partner, Fiona Taylor, her son and his daughter were driving home from a family event. The applicant had consumed a large amount of alcohol during the day and was intoxicated.
At 12:49 am on 8 August 2021, the applicant pulled into a Shell service station in Strathmerton.
The applicant pumped fuel into the vehicle whilst Ms Taylor and the applicant’s daughter entered the service station. Mr Burke, who had arrived at the service station sometime earlier and was conversing with the attendant, greeted the pair as they entered.
After Ms Taylor and the applicant’s daughter selected some items from the refrigerators, Ms Taylor began accusing Mr Burke of looking at the applicant’s daughter and calling him a paedophile. Ms Taylor placed the items, which included a one litre sports drink, on the counter, and continued to verbally abuse Mr Burke. The applicant’s daughter left the service station and returned to the car.
The applicant entered the service station and approached Mr Burke, asking him, ‘Do we have a problem?’. Mr Burke confirmed, in effect, that there was no problem. Ms Taylor continued to direct abuse at Mr Burke, and told the applicant that Mr Burke had been looking at his daughter.
At approximately 12:55 am, the applicant approached the service counter and picked up the one litre sports drink and threw it at Mr Burke’s head. The bottle dislodged Mr Burke’s glasses and caused him to lose his balance.
The applicant then proceeded to kick Mr Burke to the left hip, causing him to fall heavily to the ground. Mr Burke remained on the ground. The applicant subsequently kicked the sports drink, which had come to rest on the floor, into Mr Burke’s upper leg/groin area. The applicant then stood over Mr Burke and berated him.
By this time, the applicant’s 21 year old son had entered the service station and was attempting to remove the applicant from the area. On their way out of the service station, the applicant’s son asked the attendant where they kept their security cameras. The applicant then told the attendant, ‘You'd want to wipe that off the tape’.
The applicant left the service station. At 12:59 am, the applicant drove away.
The service station attendant phoned 000. At approximately 1:30 am, the police arrived and spoke with Mr Burke who recounted the assault. Mr Burke was initially transported to Goulburn Valley Hospital.
The Crown called evidence from one of the ambulance officers who transported Mr Burke to hospital. The officer described how Mr Burke suffered from expressive dysphasia during the journey, which is indicative of a head injury and which increased the urgency with which the ambulance travelled to the hospital.
(2)Medical treatment at Goulburn Valley Hospital
On arrival, Mr Burke was observed to be suffering with a left earlobe laceration, left-sided chest wall tenderness, and right lower quadrant tenderness. A computed tomography (‘CT’) trauma panel was completed which showed a fractured pelvis and a diffuse haematoma in the right obturator internus muscle and the extraperitoneal adipose tissue adjacent to the bladder.
A subdural haematoma was observed adjacent to the left partial lobe measuring up to 13 mm in depth. Based on these results, hospital staff decided to urgently transfer Mr Burke to the Royal Melbourne Hospital.
(3)Medical treatment at Royal Melbourne Hospital
At 11:52 am on 8 August 2021, Mr Burke was admitted to the Royal Melbourne Hospital and spent 11 weeks there as an inpatient.
A CT scan was performed the following day, identifying a large mixed density left parietal convexity subdural haematoma measuring up to 12 mm in depth. This subdural haematoma, or brain bleed, had not significantly changed in volume or mass since the previous CT trauma panel taken at Goulburn Valley Hospital.
On 10 August 2021, Mr Burke commenced daily injections of prophylactic Clexane, a blood thinning medication prescribed to prevent blood clots forming in immobile patients.
On 11 August 2021, following signs of low oxygen levels identified during a routine examination, a CT scan of Mr Burke’s pulmonary angiogram system was performed. This scan revealed pulmonary emboli (blood clots on Mr Burke’s lungs), and hospital staff commenced daily injections of therapeutic Clexane to break down the clots.
On 16 August 2021, a further CT scan was performed and identified an increase of the existing subdural haematoma with a midline shift and a left-sided 4.3 cm maximal dimension frontoparietal intraparenchymal haematoma (otherwise referred to as an intracerebral haematoma) (‘ICH’). The newly identified ICH and the midline shift of the subdural haematoma required urgent draining via a craniotomy. This surgery proceeded on the same day.
On 17 August 2021, an inferior vena cava (‘IVC’) filter was inserted into the main vein leading to Mr Burke’s heart to prevent pulmonary emboli. On 20 August 2021, injections of prophylactic Clexane recommenced.
On 23 August 2021, a CT scan confirmed that the subdural haematoma and ICH were stable following the craniotomy.
On 27 August 2021, a further CT scan identified that Mr Burke’s brain bleeds were stable, however, the subdural haematoma had a further 7 mm midline shift.
On 27 August 2021, a magnetic resonance imaging (‘MRI’) scan on Mr Burke’s brain was also performed. This identified a subacute infarct in the left temporal lobe and raised concern that Mr Burke had suffered a stroke. However, on review, the hospital’s stroke team confirmed that this infarct was likely caused by the changes in Mr Burke’s brain and did not stem from an embolic event such as a stroke. At this time, Mr Burke displayed ongoing expressive dysphasia and difficulty with movement on his right side.
The results of the MRI indicated that Mr Burke may have suffered from cerebral amyloid angiopathy (‘CAA’), a condition which causes the accumulation of certain proteins in the blood vessels and can increase the risk of brain bleeds, especially in older people. A diagnosis of CAA cannot be confirmed until after a person has died.
On 6 September 2021, a ‘code stroke’ was called after a drop in Mr Burke’s Glasgow Coma Score and a subacute cerebral artery infarction, or ischemic stroke, was identified. Despite discovery of the infarct, the stroke team were of the view that this was not caused by an acute stroke, and again stemmed from the developing changes to Mr Burke’s brain.
On 7 September 2021, the IVC filter was removed and a further review by the stroke team identified no obvious clinical signs of a stroke. Mr Burke commenced receiving nutrients via a nasogastric tube on the same day.
On 8 September 2021, an electro encephalogram (‘EEG’) was conducted to identify whether Mr Burke had suffered a seizure. The findings were abnormal, and indicated a moderate-to-severe diffuse encephalopathy and a known structural abnormality over the left hemisphere of the brain. However, there were no signs of a seizure.
Mr Burke underwent cholestatic liver function testing on the same day, which confirmed that he suffered from liver cirrhosis.
On 9 September 2021, following various tests, Mr Burke was diagnosed with vitamin D and iron deficiency, and type 2 diabetes. Mr Burke also suffered from a pressure sore on his back.
(4)Death
On 15 October 2021, Mr Burke was relocated to palliative care. He died on 28 October 2021 at approximately 4:15 am.
The two key issues at trial were whether the unlawful conduct was dangerous and whether such conduct caused Mr Burke’s death.
PART C:THE ISSUE OF UNLAWFUL AND DANGEROUS ACT
(1)The prosecution case on unlawful and dangerous act
The prosecution case at trial was that the applicant’s acts, namely, throwing a one litre bottle of liquid directly at Mr Burke’s head with force and kicking him to the ground, were objectively dangerous, that is, a reasonable person in the applicant’s position would have realised that they were exposing Mr Burke to an appreciable risk of serious injury.
It is important to observe that the prosecution’s case of unlawful conduct was not defined by the throwing of the bottle in the general direction of Mr Burke. While this would have been unlawful, the prosecution did not rely upon the mere throwing of the bottle in the general direction of Mr Burke.
Rather, it was the prosecution case that the applicant threw the bottle directly at the head of Mr Burke. The prosecution case was that the applicant ‘deliberately’ threw the bottle at the head or ‘meant’ to throw it at the head.[1] In other words, the applicant targeted the head. It was their case that it was the targeting of the head that made this unlawful conduct dangerous (because the head was a vulnerable part of the body).
[1]Any reference made in these reasons to the prosecution allegation that the applicant threw the bottle directly at the head of Mr Burke is to be read in this way, that is, that the throw targeted Mr Burke’s head.
It was the prosecution’s case that any reasonable person in the applicant’s position would have realised that assaulting Mr Burke in that way — throwing the bottle directly at the head of Mr Burke with considerable force, and kicking Mr Burke to the ground — would create an appreciable risk of serious injury.
In support of its case that the applicant ‘meant’ to hit Mr Burke in the head with the bottle (with force) and ‘meant’ to kick him to the ground, the prosecution relied upon the ‘level of hostility’ shown by the applicant ‘before, during and after the assault’. They similarly relied upon the evidence that he was indifferent to the welfare of Mr Burke.
That evidence — ‘before, during and after the assault’ — included the applicant’s ‘irate’ state of mind when he threw the bottle, as revealed by the internal CCTV footage, the manner in which he stepped forward ‘towards Mr Burke as he released the bottle’, the applicant berating Mr Burke whilst he was lying on the floor, the applicant stomping on Mr Burke’s glasses, the applicant kicking the bottle into Mr Burke’s leg/groin area and the applicant demanding that the service station attendant wipe the video tape of the incident (which the prosecution contended showed indifference to Mr Burke’s welfare).[2]
(2)Defence case on unlawful and dangerous act
[2]The external CCTV footage of the applicant’s arrival at the service state in his car and his later departure (with his partner) after the assault was admitted for a different purpose. We will return to this.
The defence case was that while the applicant committed ‘shameful’ unlawful conduct, merely throwing the bottle ‘in the direction’ of someone, which ‘glances their head only’, and kicking him to the side of his body, could not create an appreciable risk of serious injury. They raised for the jury the question ‘what are the chances of it [the bottle] hitting the other man [Mr Burke]’?
The defence emphasised that there was no evidence about the forcefulness of the throw or the kick beyond what one might speculate from looking at the footage.
In her closing address, defence counsel reinforced that the jury could not take into account anything personal to the applicant which may have affected his judgement in the context of dangerousness. The jury were permitted to consider the applicant’s physical acts, but could not have regard to his emotions or emotional state.
The substance of the defence case was to take issue with the prosecution case that the applicant targeted or aimed the throw at Mr Burke’s head or that he did so with force.
PART D:THE ISSUE OF CAUSATION
(1)The prosecution case on causation
(a)General
The prosecution’s position with respect to causation was that the applicant’s assault was a substantial or significant cause of Mr Burke’s death. The chain of causation commenced with the assault on 8 August 2021 and continued unbroken until Mr Burke’s death on 28 October 2021.

The prosecution case was that the initial injuries caused by the assault, namely the subdural haematoma and fractured pelvis, resulted in Mr Burke’s admission to hospital. Due to a complication of his injuries, Mr Burke developed clots on his lungs which required the administration of blood thinning medication. This medication contributed to further bleeding on Mr Burke’s brain, creating pressure on the brain and causing significant damage from which Mr Burke never recovered. Mr Burke was palliated on 15 October 2021 and died on 28 October 2021.
The strong temporal connection between the assault and Mr Burke’s injuries formed a key part of the prosecution’s case with respect to causation.
Evidence was adduced of a number of medical records made at the Goulburn Valley Hospital and Royal Melbourne Hospital concerning the diagnosis and treatment of Mr Burke through his hospitalisation.
The notes were adduced respectively through Dr Hashitha Dombagahawatta (an emergency physician at Goulburn Valley Hospital) and Dr Dina Logiudice (a geriatrician from the Royal Melbourne Hospital who was part of Mr Burke’s treating team).[3]
[3]On 17 September 2021 Mr Burke was transferred from the Royal Melbourne Hospital (main campus) to the acute aged care ward situated at Royal Park campus. He remained there until he died on 28 October 2021. Dr Logiudice was the consultant in charge of Mr Burke’s ward at Royal Park.
These entries were largely made by Mr Burke’s treating clinicians. The prosecution did not call these treating clinicians.
Most of the records relating to Mr Burke’s treatment were uncontroversial. However, they were controversial notes in two respects. These categories were:
•The characterisation of the subdural haematoma as acute (caused by recent trauma) or chronic (pre-existing), and whether it was caused by the assault.
•The connection between the administration of Clexane and the rebleed on 16 August 2021 (the increase in the size of the subdural haematoma and the development of the ICH).
(b)Medical notes on characterisation of subdural haematoma
The prosecution case largely relied upon the medical notes in support of the proposition that the subdural haematoma was acute and traumatic, and caused by the applicant.
Dr Dombagahawatta, gave evidence regarding the CT trauma panel performed upon Mr Burke’s arrival at the hospital which revealed a subdural haematoma measuring 13 mm on the left-side of the brain. He gave evidence that a CT scan was conducted of Mr Burke’s head (and pelvis) and that he and the surgical doctors would have examined the scans. An entry was made into the medical records by a colleague (unidentified). The note summarised the findings of a radiologist (otherwise unidentified) in relation to the radiological scans. The note states:
A convex extra-axial haemorrhage is noted adjacent to the left parietal lobe measuring up to 13 millimetres in depth. This may represent a chronic subdural hematoma. (‘GV Radiology Note’)
Dr Logiudice gave evidence of the following entries taken from the hospital records at Royal Melbourne Hospital.
An entry was made by Dr Lisa Walker, who was a consultant and emergency medicine specialist consultant at the Royal Melbourne Hospital on duty when Mr Burke was admitted on 8 August 2021. Dr Walker initially assessed Mr Burke. Dr Walker made notes about Mr Burke’s presentation and the medical plan. One of the notes she authored concerned her review of the CT scans which had been taken at the Goulburn Valley Hospital. The note reads:
CT from Shep has found a ? Chronic SDH however on review of the films appears acute. (‘Dr Walker Note’)
On 13 September 2021, Dr Thomas Eckersley prepared a discharge summary. Dr Eckersley was a resident hospital medical officer who was working in the aged care unit at royal Melbourne Hospital. Dr Eckersley’s note reads:
Seen on CT at GVH. Reviewed by NSx on 8/8.
(‘Dr Eckersley Scan Review Note’)
In her evidence, Dr Logiudice confirmed that the CT scan was reviewed by a neurosurgeon on 8 August 2021.
On 16 August 2021, entries were made by the treating neurosurgeon Dr Tanya Nguyen or her assistant Dr Leon Chau (a resident medical officer in the field of neurosurgery).[4] They performed the craniotomy upon Mr Burke on that day. Evidence was led of a number of pre-operation entries relating the surgery that day. By the conclusion of the trial virtually the entire note made by either Dr Nguyen or Dr Chau had been read into evidence:
[t]his gentleman was allegedly assaulted 1 week ago and sustained an [sic] thin acute left convexity sdh.
He became drowsy a few hours ago and repeat imaging demonstrated a new intraparenchymal haematoma in the parietal lobe and increasing size of acute subdural haematoma with significant midline shift.
After discussion of the risks and benefits of surgery with family he proceeded to emergency surgery.
Evacuation of acute SDH and evacuation of left parietal ICH.
(‘Neurosurgery Pre-Operation Entries’)
[4]Some of the evidence suggested it was Dr Nguyen; other evidence suggested it was Dr Chau.
On 16 August 2021, an entry was made into the records following a CT brain scan. The record concerned other observations made of these scans which were read into evidence (including the increase in size of the subdural haematoma). The note reads:
Acute on chronic sub-acute left subdural.
(‘16 August CT Brain Scan Note’)
(c)Medical Notes on connection between Clexane and rebleed
The prosecution case also relied upon the clinical opinion or impression apparent from the medical notes that the rebleed on 16 August 2021 (the increase in the size of the subdural haematoma and the development of the ICH) was connected to the administration of Clexane.
Dr Logiudice gave evidence about the risk of pulmonary emboli stemming from Mr Burke’s immobility and the subsequent administration of Clexane in an attempt to prevent clotting. On 10 August 2021, despite the administration of a prophylactic dose of Clexane, Dr Logiudice confirmed, via reference to medical notes, that pulmonary emboli were identified on 11 August 2021 and a decision was made to commence Mr Burke on therapeutic Clexane despite the accompanying risk of further brain bleeds.
Dr Logiudice’s evidence was that this risk eventuated when the ICH and growth of the subdural haematoma was identified on 16 August 2021, requiring an urgent craniotomy to relieve the pressure on Mr Burke’s brain.
Evidence was adduced through Dr Logiudice that Dr Eckersley recorded:
an ‘impression’: that the new bleed was likely secondary to the, um, increase in the blood thinning medication, the Clexane.[5]
(‘Dr Eckersley Clexane Note’)
[5]Dr Logiudice clarified that ‘secondary to’ meant ‘the result of’.
Evidence was adduced more generally through the forensic pathologist called by the prosecution, Dr Yeliena Baber, that the ‘clinical impression’ or ‘clinical opinion’ was that the rebleed discovered on 16 August 2021 was secondary to the administration of Clexane. The reference to the ‘rebleed’ was primarily focused upon the development of the ICH, but a fair reading of the whole of the evidence is that the ‘rebleed’ covered both the ICH and the enlargement of the subdural hematoma.
In cross-examination, the forensic pathologist called by the defence, Professor Johan Duflou, agreed that this opinion emerges from the medical records. We will return to this.
Finally, entries were read into evidence from the Notification to the Coroner by Dr Claire Bowtell dated 28 October 2021, two of which concerned cause of death. These entries included the following:
Admission diagnosis…acute subdural haemorrhage.
(‘Dr Bowtell Subdural Haemorrhage Note’)
[t]he death occurred as a direct result of injuries sustained in an alleged assault.[6]
(‘First Bowtell cause of death entry’)
[b]rain injury secondary to multiple intracranial haemorrhages in the setting of alleged physical assault and subsequent re-bleed in the setting of anticoagulation for pulmonary embolism.[7]
(‘Second Bowtell cause of death entry’)
(d)The opinions of expert witnesses, Dr Baber and Dr Iles
[6]This was entered at the beginning of the document.
[7]This was entered as the answer to ‘possible cause of death’.
The prosecution case also relied upon the Crown’s expert witness, Dr Baber, a forensic pathologist from the Victorian Institute of Forensic Medicine (‘VIFM’). On 29 October 2021, Dr Baber performed the autopsy on Mr Burke’s body.
Dr Baber concluded that having regard to the medical records and the decline of Mr Burke’s health across the 11-week period following the assault, his eventual death was a consequence of the applicant’s conduct on 8 August 2021.
Dr Baber’s formulation of cause of death was the:
sequelae of multiple intracranial haemorrhages due to blunt force trauma and subsequent re-bleed in the setting of anticoagulation for pulmonary embolism.
In Dr Baber’s opinion, the subdural haematoma was caused by head trauma, and both its expansion and the development of the ICH (on 16 August 2021) were precipitated by the administration of Clexane as a result of that assault.
Dr Baber’s cause of death opinion was based upon synthesising a multitude of factors, including Mr Burke’s medical history, the event that led to hospitalisation, his medical treatment, and the temporal sequence of events.
Dr Baber maintained that but for this incident there is no indication that Mr Burke would have died. He was functioning apparently perfectly normally with high blood pressure and cirrhosis, that had not otherwise been identified, and it was ‘likely he would have been okay’.
Dr Baber performed the autopsy on Mr Burke’s body, however she did not examine the brain. The prosecution also called Dr Linda Iles, another forensic pathologist from VIFM, who was provided with and examined Mr Burke’s brain.
Dr Iles gave evidence of the several findings in her report arising from the examination of Mr Burke’s brain. We refer to her evidence below insofar as it is necessary to do so.
(e)Concessions by Dr Baber and Dr Iles
During cross-examination, Dr Baber agreed she could not exclude the possibility that Mr Burke had a pre-existing (or chronic) subdural haematoma which rebled as a result of the trauma on 8 August 2021. Otherwise, Dr Baber deferred to Dr Iles on all brain-related questions. In terms of what the radiology scans showed of the subdural haematoma, she deferred to the radiologist who made the report at the Royal Melbourne Hospital.[8]
[8]Dr Baber said did not have a copy of the radiology report with her.
Dr Baber could not exclude the possibility that the development of the ICH was the consequence of CAA, however she referred to the clinical impression that the ICH was likely secondary to therapeutic Clexane. This was, however, the clinicians’ opinion and not her own. Ultimately, Dr Baber was unable to say whether or not the ICH was caused by the Clexane and/or CAA.
Despite this, Dr Baber adhered to her cause of death opinion; she maintained that she reasoned from the temporal relationship of a multitude of factors towards her cause of death opinion. She said, ‘he wouldn't have been in hospital had he not been assaulted. It's as simple as that’, and cautioned against isolating the relative contribution of any individual factor in the death of Mr Burke. Dr Baber insisted it would be ‘pretty unusual’ that his natural diseases (such as CAA) would cause spontaneous bleeds at the same time.
At one point Dr Baber deferred to Dr Iles on the question of the role played by Clexane. When Dr Iles was asked in cross-examination about whether she had an opinion on the link between Clexane and the rebleed, she merely spoke of the great care which must be exercised in the administration of Clexane for people who have CAA. She could not take it further. However, Dr Iles confirmed the diagnosis of CAA and gave evidence that, in her opinion, CAA contributed to the ICH discovered on 16 August 2021 but she could not say whether there were other operating factors. Dr Iles agreed under cross-examination that she could not identify the exact cause of the subdural haematoma based upon her brain examination.
(f)The prosecution’s final address on causation
In her closing address, the prosecutor conceded that each of the experts gave evidence that it was possible that the ICH occurred naturally due to underlying health conditions. However, she exhorted the jury to consider the timing of the events and the deterioration of Mr Burke’s health.
The prosecutor noted that whilst it might be theoretically possible that Mr Burke died of natural causes, this was not a reasonable possibility and should not cause the jury to doubt that the accused’s conduct caused Mr Burke’s death.
With respect to the subdural haematoma, the prosecution’s position was that the haematoma was acute, that is, caused by a recent trauma, as opposed to chronic, meaning pre-existing. The prosecution relied upon the various references to an acute subdural haematoma throughout Mr Burke’s medical notes, including those made by the neurosurgeons in preparation for his brain surgery (the Neurosurgery Pre-Operation Entries).
The prosecutor emphasised that the opinion of the treating clinicians at the Royal Melbourne Hospital was that the possible cause of death was brain injury secondary to multiple intracranial haemorrhages in the setting of alleged physical assault and subsequent rebleed in the setting of anticoagulation for pulmonary embolism.
In her address to the jury, the prosecutor explained that the applicant must ‘take his victim as he finds him’. She submitted that despite Mr Burke’s underlying health issues, which made him more susceptible to death than a person of normal health, his death could not be described as an accident. The Crown made clear that the jury, in the context of causation, must consider whether they are satisfied beyond reasonable doubt that the applicant’s conduct was a substantial or significant cause of Mr Burke’s death.
(2)Defence case on causation
(a)The defence case on the CAA hypothesis
The defence case concept was based primarily upon the evidence of Professor Duflou, a forensic pathologist, who was called as the expert for the defence. The defence also relied upon the concessions secured from Dr Baber and Dr Iles.
The central defence concept was that the ICH (and death) was very likely the result of the pre-existing natural CAA disease (in combination with other pre-existing conditions, notably hypertensive disease). The ICH and death occurred independently of anything that the applicant did.
The defence case was that, at the very least, this CAA hypothesis should cause the jury to entertain a reasonable doubt about the prosecution case that the applicant’s conduct was a substantial or significant cause of Mr Burke’s death.
As to Clexane, Professor Duflou said that whilst the administration of Clexane can increase the risk of bleeding, which ‘will probably be worse than it otherwise would have been’, there was a low risk of Clexane causing spontaneous bleeding.
Professor Duflou accepted that ‘it certainly can be read from the medical records that the Clexane highly contributed’ to the rebleed on 16 August 2021, but he sought to reconcile his view with the opinions of the clinicians on the basis that the clinicians ‘did not know that there was CAA’ on the basis of confirmed microscopy of the brain. Professor Duflou said:
So effectively, I think what I'm saying is that the medical records are entirely reasonable, but then you find this additional pathology and you have to worry about that.
Professor Duflou’s evidence was that the temporal connection between the assault and the deterioration in Mr Burke’s health could have been mere coincidence, and Mr Burke’s pre-existing conditions, particularly CAA, likely caused the rebleed which ultimately led to Mr Burke’s death.
In conclusion he maintained:
I therefore conclude, so effectively, um, that’s the bottom line, that the intracerebral haematoma diagnosed on 16 August was very likely non-traumatic in origin, but rather, a manifestation of natural disease, CAA and/or hypertension with or without the contribution of Clexane treatment. And that in the end is my view.[9]
(b)The defence case on subdural haematoma
[9]Emphasis added.
With respect to the subdural haematoma, Professor Duflou’s evidence — subject to some qualifications — was that it could have been fully caused by the assault, or there could have been a pre-existing (chronic) subdural haematoma which had a rebleed because of the assault.
The professor agreed that a strike to the head could cause a subdural haematoma, however, this would require significant force, akin to or greater than a blow landed by a boxer, and that a person would also need to be suffering from a significant underlying disease such as CAA for that impact to cause a subdural haematoma.
With respect to a rebleed of a chronic subdural haematoma, Professor Duflou’s evidence was that this could occur as a consequence of minimal or trivial force, and could grow in size suddenly and spontaneously.
When asked by the trial judge about the connection between the altercation and the subdural haematoma, Professor Duflou said ‘I think it’s likely connected… More likely than not it is … there is good temporal relationship here’. Later under cross-examination he confirmed that he thought the likelihood was that ‘at least part of the subdural haematoma is traumatic’, before concluding in his re-examination that ‘there’s quite a strong link there between the two’. What he was unable to say was whether there was a chronic (pre-existing) subdural haematoma or not.
The defence case theory placed a very different emphasis upon the subdural haematoma and the development of the ICH respectively.
The defence case theory was that the ICH played a more significant role in Mr Burke’s death than the subdural haematoma. The subdural haematoma was survivable.
Also, the defence case accepted that the subdural haematoma was likely to be related to trauma (at least in part), and thus the assault. By contrast, the defence case was that the ICH was simply not connected to the assault or Mr Burke’s injuries; the ICH was caused by natural disease (CAA). When asked to comment upon Dr Baber’s conclusion that death was the sequelae of these two haemorrhages, Professor Duflou said:
…The two are the subdural haematoma and the intracerebral haematoma. Um, now, I say one of them is probably traumatic. I think I’m happy with that. And the other one, I believe quite firmly, is a natural disease process.
The defence case theory centred more upon the ICH (and the fact that it was caused by CAA) than upon the subdural haematoma.
PART E:GROUND 1
The applicant submits that a substantial miscarriage of justice was occasioned by errors of law in the directions on causation. The applicant relies on the following particulars:
(a)directions endorsing the applicability of the ‘talem qualem’ principle (that the accused must take the victim as he finds him) in circumstances where no defence of accident was raised and where the direction tended to remove or diminish consideration of Mr Burke’s poor health from the issue of causation; and
(b)directions to the jury that it had to determine the cause of the death (and the cause of the injuries contributing to it).
(1)Ground 1(a)
(a)Parties’ submissions
During his charge to the jury, the trial judge said the following with respect to causation:
The law is that if a person does something as alleged here, then he must, as [the prosecutor] put to you in the course of her address, take and accept the victim as that person was at the time of the assault. That is to say, an accused person cannot excuse himself from responsibility for this death only because that was due to some physical condition or weakness from which the victim suffered at the time and of which the accused person was unaware.
(‘the impugned direction)

When summarising the prosecutor’s argument, the trial judge said:
[The prosecutor] began her address by referring to what she described as an important principle that someone in the position of the accused must take his victim as he finds him.
The applicant contends that the application of the ‘talem qualem’ or ‘take as one finds’ principle to the common law principle of causation in criminal matters is not authoritatively established in Victoria. While accepting that there were judicial statements standing in the way of that argument,[10] the applicant sought to distinguish them.
[10]Citing Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62; [1964] HCA 21.
The applicant submits that following Royall v The Queen (‘Royall’),[11] and Swan v The Queen (‘Swan’),[12] there is a single test of causation, namely ‘a substantial or significant cause’, and, as we understand the contention, the ‘take as one finds’ principle is inconsistent with this test.
[11]Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 (‘Royall’).
[12]Swan v The Queen (2020) 269 CLR 663, 674 [24] (Bell, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 11 (‘Swan’).
The applicant further contends that pre-existing vulnerabilities are simply facts for the jury’s consideration when determining whether an unlawful act is ‘a significant or substantial cause of death’.
With respect to the issue of causation in the present case, the applicant submits that his case at trial was that, having regard to Mr Burke’s pre-existing vulnerabilities, the applicant’s conduct could not be regarded as a significant or substantial cause of his death. By directing the jury to apply the ‘take as one finds’ principle, it is contended that the trial judge effectively withdrew the applicant’s defence from the jury’s consideration and in so doing undermined or misdirected the jury on the substantial or significant cause test. More specifically, it is said that the impugned direction amounted to a withdrawal of Mr Burke’s pre-existing health conditions from the jury’s evaluation of whether the applicant’s conduct was a substantial or significant cause of death.
The respondent submits that the principle that an accused must take his victim as he finds him has long been recognised as applicable to the issue of causation with respect to homicide offences.[13] The respondent notes that the principle is applied in other jurisdictions of the Commonwealth, such as Canada,[14] and has been recognised and applied by the High Court in Australia[15] and by this Court.[16] As such, it is asserted that the trial judge’s direction to the jury in the present matter simply reflected a well-settled principle.
(b)Analysis
(i)Overview of our findings
[13]The respondent cited, inter alia, R v Blaue [1975] 1 WLR 1411; The Queen v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 (‘Moffatt’); R v Paggett (1983) 76 Cr App R 279.
[14]Smithers v The Queen (1977) 34 CCC (2d) 427.
[15]R v Van den Bemd (1994) 179 CLR 137; [1994] HCA 56; Mamote-Kulang of Tamagotv The Queen (1964) 111 CLR 62; [1964] HCA 21.
[16]Robb v The Queen [2016] VSCA 125 [72]–[74] (Ashley, Osborn and Priest JJA) (‘Robb’).
The applicant’s argument under this ground essentially has two limbs.
The first limb concerns the effect of the trial judge’s directions to the jury on the element of causation, it being said that the defence case theory, based upon Mr Burke’s pre-existing conditions, was withdrawn from the jury. It is contended that this occurred as a consequence of the judge’s extension of the ‘substantial or significant cause’ test to embrace the ‘take as one finds’ principle.
The second limb involves a broader question of law, whether the ‘take as one finds’ principle is established in Victoria as part of the causation test. The applicant says it is not.
In our view, the answer to this ground is to be found in an analysis of the first limb. When the trial judge’s charge is read as a whole, the trial judge did not, by this impugned passage, withdraw the issue of Mr Burke’s pre-existing conditions from the jury’s consideration. That is not how the jury would have understood the impugned direction within the context of all the directions on causation. In our view, the trial judge’s directions were in conformity with the orthodox and well accepted ‘substantial or significant cause of death’ test.
In order to address the submission, we will need to set out in some detail the trial judge’s directions on causation. Before turning to that, it is convenient to briefly outline the relevant and well-established principles on the substantial or significant cause of death test.
(ii)The substantial or significant cause of death test
The fundamental principles of causation of death for homicide can be distilled to the following components:[17]
•The issue of whether an act of an accused caused the death of the deceased is to be determined as a matter of common sense, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.[18]
•To establish causation, the jury must be satisfied that the act of the accused was ‘a substantial or significant cause of death’ or a ‘sufficiently substantial’ cause of death.[19]
•There may be two or more independent acts or events that cause the death.[20]
•Causation by substantial or significant contribution does not require that the acts of the accused were ‘the only cause of death, the most important cause of death or even the only important cause of death’.[21]
•Causation by substantial or significant contribution need not be the sole, direct or immediate cause of the death.[22]
•The act of the accused must have had more than a coincidental or insignificant effect — rather it must provide a substantial or significant contribution towards the death of the deceased.[23]
[17]A number of them have been conveniently summarised in Baker v The King [2023] NSWCCA 262 [54]–[58] (Beech-Jones CJ).
[18]Royall (1991) 172 CLR 378, 387 (Mason CJ), 411–2 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ), 441–2 (McHugh J); [1991] HCA 27.
[19]Swan (2020) 269 CLR 663, 674 [24] (Bell, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 11.
[20]Royall (1991) 172 CLR 378, 398 (Brennan J), 411 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ); [1991] HCA 27; Swan (2020) 269 CLR 663, 674 [25] (Bell, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 11.
[21]Swan (2020) 269 CLR 663, 675 [27] (Bell, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 11.
[22]Royall (1991) 172 CLR 378, 398 (Brennan J); [1991] HCA 27.
[23]Robb [2016] VSCA 125 [58] (Ashley, Osborn and Priest JJA) quoting Moffatt (2000) 112 A Crim R 201, 213 [71] (Wood CJ); [2000] NSWCCA 174.
It follows that, under the causation test of substantial or significant contribution, where the deceased’s pre-existing disease or medical conditions may have contributed to death:
•The test to be applied is whether, within the context of the pre-existing disease or medical conditions, it has been established that the act of the accused made a substantial or significant contribution to the death of the victim.
•The fact that the deceased’s pre-existing disease or medical conditions contributed to death will not preclude criminal responsibility provided the act of the accused makes a substantial or significant contribution to the death of the victim. The question remains whether, in spite of the pre-existing disease or medical conditions, it has been established that the act of the accused still makes a substantial or significant contribution to the death of the victim.[24]
[24]Robb [2016] VSCA 125 [55]–[58] (Ashley, Osborn and Priest JJA).
It seems to us that the propositions summarised in the last paragraph are a function of the substantial or significant cause of death test as it has been explained in cases like Swan and Royall. They do not depend on any independent application of the ‘take as one finds’ principle.
(iii)The charge on causation
We now turn to the charge.
Early in the charge, and before charging the jury on causation in detail, the trial judge said:
So again, what I am about to say to you, I suppose, is in a sense a comment from me or at least my attempt to briefly summarise the issue that arises. But the issue that seems to have arisen, bearing in mind the onus of proof on the prosecution, can be summarised perhaps this way, and it is a matter for you as to whether you think this is useful.
Is it the case that the death of Mr Burke was caused by the accused striking the deceased man with the bottle he threw and kicking him, causing at least one and possibly two bleeds in the brain, as well as a pulmonary embolism in the lungs arising from him being immobilised. Is that what happened.
Alternatively, is it the case that the death of Mr Burke occurred independently of what happened on 8 August 2021, because his pre-existing conditions of hypertension, diabetes, liver disease, and CAA were on their own sufficient to cause his death in a similar time frame. It seems to me that this is the area of dispute. That is an issue that you will have to decide. But you do not resolve it, as I keep emphasising, by saying, yes, well, I prefer one side of that argument to the other.
The question is, has the prosecution proved it beyond reasonable doubt.[25]
[25]Emphasis added.
This passage is the subject of separate complaint under ground 1(b). We will address that complaint shortly, but what was said by the trial judge is contextually relevant to an understanding of his Honour’s charge on causation. For present purposes, it is enough to observe that the trial judge focused the jury’s attention upon the need to consider the defence case theory, namely that Mr Burke’s death occurred because of his pre-existing medical conditions, and quite independently of the assault.
A little later, the trial judge commenced directions on causation. His Honour started by summarising the parties’ cases which included repeating, this time in more detail, the defence case theory as stated above. The trial judge said, ‘[s]o the argument is that maybe Mr Burke would have died anyway, even if the events of 8 August 2021 had not occurred. That is broadly the dispute’.
The trial judge then turned to the substantial or significant causation test in detail:
The Crown will have proved this fact if you are satisfied beyond reasonable doubt that the actions of the accused substantially or significantly contributed to the death of Mr Burke. It is not sufficient if those acts were merely coincidental with the suffering of the medical conditions by Mr Burke, or were insignificantly connected with it. I hope you followed that. It is important that you understand that.
Whether the acts of the accused relied upon by the Crown substantially or significantly contributed to the death of Mr Burke is a matter of fact for you to decide and to decide on a common sense basis. There can be more than one cause for Mr Burke's death arising from the facts before you. You may find that his death was the result of a number of causes. It may include the two haemorrhages, stroke or other causes associated with his high blood pressure or the condition known as CAA.
You do not have to determine what if any was the major or direct cause of that death. It is sufficient if you find beyond reasonable doubt that the acts of the accused remained a significant and substantial cause of death, despite other conditions that Mr Burke suffered from. I emphasise you make this decision applying your common sense and again appreciating that you are concerned with the determination of the criminal responsibility of an accused person for that outcome.[26]
[26]Emphasis added.
The trial judge repeated that the applicant relied upon Mr Burke’s pre-existing medical conditions. His Honour then gave the following direction:
Even if Mr Burke suffered from such physical conditions and the accused was not aware of them, which he clearly was not, it would still be open to you to find that the Crown has established beyond reasonable doubt that the accused had caused the death of Mr Burke, provided the accused’s attack on Mr Burke substantially or significantly contributed to his death.[27]
[27]Emphasis added.
The impugned direction immediately followed. As we have seen, it included the following:
That is to say, an accused person cannot excuse himself from responsibility for this death only because that was due to some physical condition or weakness from which the victim suffered at the time and of which the accused person was unaware.
The impugned direction is ambiguous, and could be read in different ways. We allow for the slight possibility that it can be read — in isolation from the balance of the charge and the trial dynamics — as providing some literal support for the applicant’s contention that the defence case theory, based upon Mr Burke’s pre-existing conditions, was effectively withdrawn from the jury. The principal defence case was effectively that Mr Burke’s death was due to his pre-existing illnesses (mainly CAA), and only due to his pre-existing illnesses (mainly CAA). On one reading, the impugned direction could suggest that even if Mr Burke’s death was due only to his pre-existing illnesses (mainly CAA), the applicant is not excused from responsibility for this death.
The impugned direction must, however, be read within context of the whole charge, and the trial itself. When this is done, there is no reasonable possibility that the jury would have given it this meaning. There is no realistic prospect that the jury would have understood the direction as withdrawing Mr Burke’s pre-existing health conditions from their evaluation of whether the applicant’s conduct was a substantial or significant cause of death.
In our view, the clear import of the charge as a whole was that the central issue in the trial was whether the prosecution had proved that the acts of the accused remained a significant and substantial cause of death, within the context of Mr Burke’s pre-existing medical conditions.
It must have been tolerably clear to the jury that in their assessment of whether the prosecution had proved, beyond reasonable doubt, that the acts of the accused were a significant and substantial cause of death, they had to consider and take into account the pre-existing medical conditions of Mr Burke and their contribution, if any, to his death.
In context, we think the impugned direction must have conveyed to the jury that:
•The question of whether the prosecution had proved that the applicant’s acts were a significant and substantial cause of death had to be assessed within the context of, and taking into account, the victim’s pre-existing vulnerabilities.
•If Mr Burke’s pre-existing conditions contributed to his death, that matter alone did not preclude the prosecution’s proof of causation. The question remained whether the prosecution had proved that the applicant’s acts were a significant and substantial cause of death, despite the pre-existing medical conditions.
•It did not matter that the applicant was unaware of these medical conditions.
So much was plain by the words used by the trial judge immediately preceding the impugned direction. They bear repeating:
even if Mr Burke suffered from such physical conditions … it would still be open to you to find that the Crown has established beyond reasonable doubt that the accused had caused the death of Mr Burke, provided the accused’s attack on Mr Burke substantially or significantly contributed to his death.[28]
[28]Emphasis added.
This is reinforced by the trial judge’s concluding passage on causation which again draws the jury’s attention to the substantial or significant cause of death inquiry and the need to consider all of the contributing factors (including Mr Burke’s pre-existing medical conditions):
These are all matters that you are going to have to consider. So as I say, the law says that for the acts of the accused to have caused the death of Mr Burke, they do not have to have been the only cause of that result or even the direct and immediate cause. You may find that his acts caused the death if they were a substantial or significant cause of death. Those are the words that you apply to that test. And as I have already said to you, you approach this in a common sense manner, bearing in mind the consequences for the accused. You know the arguments for the prosecution and for the accused, and I will not rehearse them now. I will come back to them at the end of these directions to you. So that is causation.[29]
[29]Emphasis added.
In our view, the direction did not withdraw Mr Burke’s medical conditions from the jury’s consideration of causation.
The meaning to be attributed to the impugned direction must also be considered within the wider context of the trial controversies. The main issue in this trial was causation. The defence case theory on causation was tied to Mr Burke’s various pre-existing medical conditions. That was almost the entire the focus of the trial.
The defence case theory on causation was also front and centre of the trial judge’s charge. The trial judge canvassed in detail, and repeatedly, the evidence concerning the medical conditions and related these conditions to the controversies of the case.
It would not have made any sense that these issues were suddenly, and without explanation, withdrawn from the jury’s consideration.
For the same reasons, we also do not think the brief reference to the prosecutor’s argument detracted from the overall tenor of the charge.
We note that defence counsel took no exception to the directions which are now attacked. While not fatal, this presents as a significant obstacle in the applicant’s path. The absence of any such exception reinforces our view that the risk of the jury interpreting the charge in the manner contended was not present.[30]
(iv)The broader legal question on ‘take as one finds’ principle
[30]De Silva v The Queen (2019) 268 CLR 57, 70 [35] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
We think this is sufficient for us to dispose of the ground. It is not necessary for us to consider the broader legal question as to the relationship between the ‘take as one finds’ principle and the substantial or significant cause test.
The ‘take as one finds’ principle addresses the situation where the accused’s act has combined with Mr Burke’s particular medical vulnerability to cause death; it operates such that Mr Burke’s particular medical vulnerability is not of itself a bar to liability.[31] Insofar as this goes, this is entirely consistent with the substantial or significant cause test, which itself contemplates that the accused’s act might be one of a number of contributing factors, including possible pre-existing medical causes.
[31]Judge Mark Lucraft, Archbold: Criminal Pleading Evidence and Practice (Sweet & Maxwell Ltd, 2025 ed., 2024) 2151, 2153.
We agree with the applicant’s argument that pre-existing vulnerabilities are simply facts for the jury’s consideration when determining whether an unlawful act is ‘a significant or substantial cause of death’.
However, we take a different view about what the trial judge did here. We think the trial judge’s direction, in substance, complied with the well-recognised substantial or significant cause test. The directions which the trial judge gave more than adequately addressed the issue of multiple causes, including causes relating to Mr Burke’s medical vulnerability. There is therefore no need to consider further the relationship between the ‘take as one finds’ principle and the significant or substantial cause of death test.
We think that the impugned direction added nothing to the substantial or significant cause test direction which the trial judge had given. While it may have been unnecessary, we do not think it detracted from the balance of the charge on causation, which was impeccable.
(2)Ground 1(b)
(a)Parties’ submissions

With respect to cause of death, the trial judge directed the jury as follows:
So again, what I am about to say to you, I suppose, is in a sense a comment from me or at least my attempt to briefly summarise the issue that arises. But the issue that seems to have arisen, bearing in mind the onus of proof on the prosecution, can be summarised perhaps this way, and it is a matter for you as to whether you think this is useful.
Is it the case that the death of Mr Burke was caused by the accused striking the deceased man with the bottle he threw and kicking him, causing at least one and possibly two bleeds in the brain, as well as a pulmonary embolism in the lungs arising from him being immobilised. Is that what happened.
Alternatively, is it the case that the death of Mr Burke occurred independently of what happened on 8 August 2021, because his pre-existing conditions of hypertension, diabetes, liver disease, and CAA were on their own sufficient to cause his death in a similar time frame. It seems to me that this is the area of dispute. That is an issue that you will have to decide. But you do not resolve it, as I keep emphasising, by saying, yes, well, I prefer one side of that argument to the other.
The question is, has the prosecution proved it beyond reasonable doubt.
The applicant submits that it was wrong for the trial judge to summarise the issue for the jury’s determination as a choice between the applicant’s conduct causing the brain bleeds and emboli, and those injuries having occurred independently as a result of pre-existing conditions. Whilst the trial judge noted that this was merely a ‘comment’, and emphasised that the prosecution bore the onus of proof, the applicant contends that the direction nonetheless conveyed to the jury that it had to reach a view as to what caused Mr Burke’s death.
The applicant submits that this was a case in which there was a potential for the jury to be undecided as to what extent the various potential causes of Mr Burke’s injuries contributed to his death. The invitation to the jury to reach a conclusion one way or the other risked deflecting the jury from its true task of determining the applicant’s responsibility in accordance with the onus and standard of proof.
The respondent contends that the trial judge was simply summarising the prosecution and defence case on causation in accordance with the obligations under the Jury Directions Act 2015, and in doing so reminded the jury of the onus and standard of proof both at the beginning and end of this summary.[32] The respondent submits that this portion of the charge did not impliedly suggest to the jury that it had an investigative role akin to a court conducting an inquest.[33]
[32]Jury Directions Act 2015, s 65(b).
[33]The Queen v Klamo (2008) 18 VR 644, 660 [70] (Maxwell P, Vincent and Neave JJA); [2008] VSCA 75.
Given the fulsome directions the jury received with respect to the burden and standard of proof, the respondent contends that there is no risk that the jury were diverted from their task of determining whether the prosecution had proven beyond reasonable doubt that the applicant’s acts caused Mr Burke’s death.
(b)Analysis
We agree with the respondent that there is no merit to this complaint.
As the respondent points out, the impugned direction itself was internally qualified twice by reference to the burden and onus of proof.
The impugned direction was also given by way of a shorthand summary of the parties’ cases. It was delivered at an early point in the charge. The judge later gave his detailed direction on causation where he repeatedly directed the jury that the prosecution must prove, beyond reasonable doubt, that the actions of the applicant substantially or significantly contributed to the death of Mr Burke. The passages we have set out under ground 1(a) amply demonstrate the point. If the impugned direction carried any risk of diverting the jury’s attention from the ultimate issue for their consideration, it would surely have been removed by the trial judge’s full direction on causation.
As mentioned in relation to ground 1(a) at [139] above, it is of significance that the applicant’s trial counsel did not take exception to the direction. An inference can be drawn that there was no risk of the jury being deflected from determining the applicant’s responsibility in accordance with the onus and standard of proof.
Having regard to the directions as a whole, we are left in no doubt that in order to convict the applicant, the jury was aware that the prosecution had to satisfy them, beyond reasonable doubt, that the actions of the applicant substantially or significantly contributed to the death of Mr Burke; and the jury would have equally understood that if they were not satisfied of this, to the criminal standard, then they were bound to acquit the applicant.
(3)Summary
Neither ground 1(a) or (b) are established.
PART F:GROUND 3
(1)Introduction
The applicant submits that a substantial miscarriage of justice was occasioned by the wrongful admission of two items of evidence, namely:
•Evidence of the applicant’s demand of the service station attendant to ‘wipe the tape’ which was made immediately following the assault.
•CCTV footage depicting the applicant driving into the petrol station before the assault and out of the petrol station after the assault.
The applicant contends that this evidence was irrelevant or ought to have been excluded under s 137 of the Evidence Act 2008 due to the risk of unfair prejudice which attended the evidence.
(2)The applicant’s demand to wipe the CCTV footage
(a)The evidence and the trial judge’s ruling
This demand was made to the service station attendant, Mr North, immediately following the assault. Mr North’s evidence at trial was that the applicant’s son asked where the cameras were kept, to which Mr North replied that he did not know. The applicant then stated, ‘You’d want to wipe that off the tape’.
In the pre-trial ruling, the trial judge determined that the applicant’s demand of the service station attendant was, together with other evidence, relevant and admissible on the basis that it reflected the applicant’s indifference to Mr Burke’s welfare; it was thereby probative of the force with which the bottle was thrown and whether it was the applicant’s kick that caused Mr Burke to fall.[34] While the trial judge did not say it in his ruling, it was also the prosecution case that this evidence was probative on the issue of whether the applicant targeted Mr Burke’s head with the throw. That is how it was used by the prosecution.
[34]DPP v Maskell [2023] VSC 355R [28] (Lasry J).
The prosecutor did not highlight the significance of the evidence in her opening address to the jury, however, reference to the ‘wipe the footage’ demand was made in the following context in her final address:
Those two video recordings which capture the assault are crucial pieces of evidence in this trial because they place each of you in a very good position to know exactly what the accused did. You can see it with your own eyes, the actions that he took that evening.
The accused then told Mr North to wipe this footage before leaving in his ute, driving away.
Now, the prosecution says that the accused has thrown the bottle directly at Mr Burke’s head as hard as he could, and then, when Mr Burke was trying to regain his balance from the initial blow, he has kicked him to the ground.
Now, it might be suggested to you by [defence counsel] that because the accused had been drinking a significant amount of alcohol that night, he might simply have been throwing the bottle in the general direction of Mr Burke, not at his head, or that he did not kick Mr Burke over, rather, Mr Burke lost his balance after the kick and fell over. [Defence counsel] might suggest to you that the accused did not throw the bottle or kick Mr Burke with significant force.
Well, the prosecution says that you can be satisfied from the level of hostility shown by the accused before, during and after the assault that he meant to hit Mr Burke in the head with the bottle and he meant to kick him to the ground.[35]
(b)The parties’ submissions
[35]Emphasis added.
The applicant submitted that the trial judge’s ruling to admit the evidence was wrong.
It is contended that the demand to wipe the footage evidence was irrelevant and lacked any probative value. The evidence was incapable of bearing upon the applicant’s indifference to Mr Burke’s welfare. It therefore could not have been relevant to the issue of force used by the applicant in the assault, or whether the applicant deliberately threw the bottle directly at the head of Mr Burke.
On the other hand, it was prejudicial, according to the applicant. While there was no explicit reliance by the prosecution upon the demand to wipe the video evidence as incriminating conduct, there was a real risk that the jury would use incriminating conduct reasoning. Specifically, the jury might have used this evidence impermissibly as an implied admission that the applicant had thrown the bottle directly at the head of Mr Burke (as opposed to throwing it in his general direction). Proving that the applicant threw the bottle directly at Mr Burke’s head was an essential stepping stone in the prosecution’s case towards dangerousness.
The applicant points to another source of prejudice which attended the introduction of this evidence. He argues that the manner in which the prosecution had run its case had already created a risk that the jury would impermissibly reason from the applicant’s subjective state of mind towards a finding that the unlawful acts were objectively dangerous. The introduction of subjective state of mind evidence — like the demand to wipe the tape evidence — increased this risk. We will expand upon this below.
The respondent argued that the demand to wipe the video was evidence of the applicant’s complete disregard for Mr Burke’s welfare (in conjunction with other evidence such as his stomping on Mr Burke’s glasses). The demand to wipe the tape evidence — in combination with other evidence of animus — enabled the jury to draw inferences regarding the applicant’s state of mind when he threw the bottle and kicked Mr Burke. According to the respondent, the jury was thus entitled to reason back from this antipathy and indifference that the applicant intended to strike Mr Burke in the head with the bottle, used significant force in doing so, and had kicked him to the ground.
(c)Analysis
In our view, the evidence of the demand to wipe the tape was inadmissible.
The assessment of its probative value involves a consideration of the following:
•The degree to which the demand to wipe the tape evidence was probative of the applicant’s animus towards Mr Burke, or his indifference towards his welfare.
•The degree to which evidence of the applicant’s animus towards Mr Burke, or his indifference towards his welfare, was probative of the facts in issue.
We will take them each in turn.
We agree with the applicant that the demand to wipe the tape evidence did not supply evidence of animosity or hostility towards Mr Burke. At the hearing of this application, when pressed, counsel for the respondent conceded that it was barely relevant to hostility, acknowledging ‘it doesn’t say anything great or significant about the degree of animus’. We think this still overstates the position.
However, indifference to Mr Burke’s welfare could be inferred, to some extent, from the applicant’s demand that the tape be wiped given the timing and purpose of the demand:
•The applicant made the demand because he knew he had assaulted Mr Burke and feared the tape would implicate him in the assault.
•The applicant was, by the demand, seeking to escape responsibility for having assaulted Mr Burke.
•It was a brazen act undertaken in pursuit of pure self-interest.
•It was made in the face of his wrongdoing against Mr Burke, who was then in need of help.
•The applicant was thus more concerned with distancing himself from his wrongful conduct against Mr Burke than he was with rendering Mr Burke help and comfort.
•It therefore displays an attitude of indifference to Mr Burke’s welfare.
It is apparent that underlying this reasoning process is incriminating conduct reasoning. This reasoning process — which supports the inference of indifference — was not outlined to the jury by the prosecution. It seemed to be assumed. In any event, it strikes us that this is the only way in which the jury could have used this evidence as evidence of indifference.
The inference of indifference is, however, by no means a powerful one. The demand to wipe the tape said more about the applicant’s self-interested attitude than it did about his attitude towards Mr Burke.
Accepting that the demand to wipe the tape constitutes some — albeit weak — evidence of indifference to Mr Burke’s welfare, the question arises as to how probative this was of the facts in issue. The prosecution in this case relied upon a body of evidence concerning the applicant’s animus towards Mr Burke or indifference to his welfare. The wipe the tape evidence formed part of this body of evidence.[36]
[36]For example, the prosecution submitted that the jury ‘can be satisfied from the level of hostility shown by the accused before, during and after the assault that he meant to hit Mr Burke in the head with the bottle and he meant to kick him to the ground’ (emphasis added). The catch all phrase of the evidence ‘before, during and after’ the assault would have been understood to have embraced the demand to wipe the video footage. The respondent does not suggest otherwise.
This evidence of animus and hostility towards Mr Burke, or indifference to his welfare, went to the scope and proof of the unlawful conduct on which the prosecution relied. The prosecution invited the jury to reason from this evidence that the applicant threw the bottle directly at the head of Mr Burke with force and kicked him to the ground.
The applicant’s state of mind was said to be relevant to defining and proving the unlawful conduct.[37] This seemed to be accepted by all parties at the oral hearing of this appeal. At all events, the applicant does not, under this ground, complain more generally about the relevance of the evidence of animus or indifference on the issues of whether the applicant targeted Mr Burke’s head with the throw, and did so with force, and whether he kicked him to the ground. Rather, the applicant’s real complaint here is that his demand to wipe the tape was simply not probative at all of any animus towards Mr Burke or indifference to his welfare. It was irrelevant at the threshold, the applicant says.
[37]While it is no part of the offence of manslaughter by unlawful and dangerous act that the accused intended to cause any level of harm, or subjectively adverted to the risk of harm, it is necessary that the Crown prove that the accused intended to commit the unlawful act that caused death: Lane v The Queen (2013) 241 A Crim R 321, 336 [55]–[57] (Bathurst CJ, Simpson and Adamson JJ); [2013] NSWCCA 317; R v Lavender (2005) 222 CLR 67, 82–83 [40] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2005] HCA 37. See also R v Wills [1983] 2 VR 201, 212 where Lush J stated that this offence is determined by considerations ‘extraneous to the subjective state of the accused man, except so far as the unlawful act may involve some concept of mens rea’.
We have found that the applicant’s demand to wipe the tape could found a weak inference of his indifference to the applicant’s welfare. But we should say that we think that evidence of the applicant’s animus towards Mr Burke and his indifference towards his welfare generally could only have had limited capacity to rationally affect the probability of the facts in issue (whether the applicant forcefully threw the bottle directly at Mr Burke’s head or kicked him to the ground).
We say that for the following reasons:
•It is to be recalled that the relevance of the applicant’s state of mind was confined to proof of the unlawful conduct. His state of mind was otherwise irrelevant to the charge of manslaughter by unlawful and dangerous act.
•This was not a case where the actions of the applicant could only be explained by reference to motive, or animus. (We take this up again below.)
•The applicant had just met Mr Burke. Indeed, the prosecution at one point characterised the violence as gratuitous, and we agree that it was. It was certainly spontaneous and unprovoked. The applicant was not acting out of some longstanding motive, attitude of indifference or animus. There was no explanation for it. It was ‘out of the blue’, short-lived aggression.
•It also seems to us that the most cogent evidence of the applicant’s animosity towards Mr Burke, and his indifference towards his welfare, came from the CCTV video itself. The video of the episode largely spoke for itself. It captured the applicant’s aggression, the force and effort with which the bottle was thrown, and the height of the throw. The surrounding evidence added very little to any assessment of what happened here.
For those reasons, even if the demand to wipe the tape evidence provided cogent evidence of indifference towards Mr Burke’s welfare (and it did not), in our view it would still have only had a modest capacity to bear upon whether the applicant forcefully threw the bottle directly at Mr Burke’s head or kicked him to the ground.
Overall, we would assess the probative value of the demand to wipe the tape evidence as very low.
Against this, we think the demand to wipe the tape evidence was highly prejudicial.
The inference from this demand — that the applicant was indifferent to the welfare of Mr Burke — was tethered to incriminating conduct reasoning.
As we have said, any indifference is inferred from the very fact that the applicant was more concerned with self-protection — taking steps to distance himself from the assault — than he was with helping Mr Burke. This carries with it an inference that the applicant sought to have the evidence destroyed because he knew that the video footage would implicate him in the assault. It was thus an implied admission of having assaulted Mr Burke.
The mere use by the prosecution of the demand to wipe the tape evidence threw up incriminating conduct reasoning. Drawing an inference of indifference in itself required, or engaged, incriminating conduct reasoning. We accept the applicant’s submission that even though the prosecution did not set out to rely upon this evidence as an implied admission, ‘this must have been its obvious import to the jury’.
Indeed, the intrinsic character of the demand to wipe the tape evidence in this case — unambiguously demanding the destruction of evidence of the applicant’s wrongdoing immediately following the assault — at first sight suggested incriminating conduct reasoning. The authorities recognise that efforts to conceal, destroy or dispose of evidence can constitute ‘powerful evidence’ of consciousness of guilt.[38]
[38]Lowe v The Queen (2015) 48 VR 351, 398 [174]–[175] (Redlich JA and Robson AJA); [2015] VSCA 327 referring to R v Chang (2003) 7 VR 236; [2003] VSCA 149; R v Rice (1996) 2 VR 406; [1996] VSC 13; The Queen v Nguyen (2001) 118 A Crim R 479; [2001] VSCA 1.
It is true that the defence had always accepted that the applicant had assaulted Mr Burke. They did not seek to excuse his conduct. At first sight, it might be thought that an implied admission to having assaulted Mr Burke was consistent with the defence case at trial, which took the prosecution case nowhere, and therefore carried minimal prejudice.
This assessment overlooks the potency of incriminating conduct reasoning. This Court has recently and repeatedly spoken of the dangers attached to incriminating conduct reasoning. It is seductive and liable to misuse.[39] This evidence raised dangers of reasoning to guilt based on evidence of incriminating conduct.
[39]Mocenigo v The Queen [2013] VSCA 231 [73] (Priest JA, Buchanan JA agreeing at [1] Neave JA agreeing at [2]); Pompei [2023] VSCA 71 [42]–[43] (Beach, T Forrest and Kaye JJA); Hussain v The King [2024] VSCA 288 [110] (Beach, McLeish and Orr JJA).

Where, as here
a ground of appeal is relied on, which was not the subject of any objection or argument at trial, it may ordinarily be inferred that trial counsel made a forensic judgment, based on the atmosphere and context of the trial, that the particular matter was not detrimental to the interest of the accused at trial, and did not infringe, or adversely effect, the right of that accused to a fair trial.[52]
[52]Saddick v The Queen [2018] VSCA 249 [56] (Kaye and Niall JA).
Much of ground 2 has the flavour of treating the applicant’s trial by jury ‘as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges’.[53] In our view, the arguments now made by the applicant represent a fundamental departure from the approach taken by him at trial.
[53]Crampton v The Queen (2000) 206 CLR 161, 172 [16] (Gleeson CJ); [2000] HCA 60.
The applicant is effectively seeking to be released from the conduct of the defence case at trial. We would be unlikely to countenance any such release. By this ground the applicant seeks to traverse a number of forensic and rational decisions made at his trial. Those decisions explain the absence of objections now raised for the first time under this ground. As we would likely hold the applicant to these forensic decisions, it would be largely futile to address the myriad admissibility points raised under this ground.
We turn now to briefly canvass some of these forensic decisions.
The decision to not object to the medical notes in relation to the subdural haematoma issue, or not to seek to have their use restricted, was the product of a rational forensic decision.
The impugned medical notes concerning the characterisation of the subdural haematoma were ambiguous and conflicting. The defence saw some forensic advantage in this. The defence expert Professor Duflou fastened upon the shifting language, emphasising their inconsistency; he highlighted that some were in fact suggestive of chronicity (pre-existing) and thus consistent with the defence case.
Taking objection carried the risk that additional medical witnesses would be called by the prosecution with a view to resolving these ambiguities and uncertainties.
Further, pursuing this issue might also have resulted in the trial becoming entangled in what was a secondary issue for the defence. Whether the subdural haematoma was characterised as pre-existing or acute, the fact is that the defence (including Professor Duflou) accepted that it was at least partly trauma related and was thus connected to the applicant’s assault. The widening of the contest on the characterisation of the subdural haematoma — which was something of a red herring — would have shifted the jury’s focus from the central defence hypothesis, being that CAA caused the ICH and death independently of the assault.
We turn now to look at the strategy adopted by the defence in relation to the clinicians’ opinion that Clexane significantly contributed to the rebleed on 16 August 2021 (the development of the ICH and enlargement of the subdural haematoma).
The evidence of the clinicians’ opinion was introduced orally in general terms or in summary form without the identification of the authors of the notes, the clinicians, or their expertise. Indeed, with the one exception,[54] the notes themselves do not seem to have been identified.
[54]One note — seemingly relied upon by way of example — was specifically introduced into evidence (being the Dr Eckersley Clexane Note) reading: ‘an “impression”: that the new bleed was likely secondary to the, um, increase in the blood thinning medication, the Clexane’.
It was also accepted by the defence (including Professor Duflou) that the notes did in fact show that the clinicians had expressed this opinion, and moreover that this opinion was ‘entirely reasonable’ at that time.
The tension between the clinicians’ opinion expressed in the notes and Professor Duflou’s opinion was this: the clinicians’ opinion was that Clexane significantly contributed to the rebleed on 16 August 2021; whereas Professor Duflou’s opinion was that CAA caused the death irrespective of the contribution made by Clexane.
Professor Duflou’s evidence (and the defence case) was that post mortem confirmation of Mr Burke’s CAA (by microscopy of the brain) explains this apparent tension. The clinicians were unaware of Mr Burke’s CAA. Professor Duflou knew about this critical factor; Professor Duflou’s opinion was thus more fully informed than the opinion of the clinicians.
It seems to us that the defence made a calculated decision to explain away, or minimise, the clinicians’ opinion as to the significance of Clexane on the basis that they did not have the full picture. The defence elected to do this rather than confront the clinicians — or their opinion — head on.
Had the defence objected to the introduction of the evidence concerning the clinical opinion as revealed by the medical records, the clinicians might have been called and might have taken issue with the importance which Professor Duflou placed upon Mr Burke’s CAA.
This approach appears to be the product of strategy not oversight.
We now turn briefly to the attack made upon Dr Baber’s opinion on cause of death.
Dr Baber’s opinion as to cause of death is now impugned by the applicant upon the basis of her concession at trial that she relied, in part, upon the opinion of the clinicians that the rebleed was secondary to the administration of Clexane.
Complaint is effectively now made that, by deferring to the clinicians’ opinion on the contribution made by Clexane, her own opinion as to the cause of death could not have been based wholly or substantially on her own specialised knowledge.
Once again, this complaint or objection was never made by trial counsel.
Once again, we think that the absence of objection is objectively explained by a calculated forensic decision.
An inference is open that the defence sought to capitalise upon the apparent or arguable weaknesses in Dr Baber’s opinion as to cause of death. The defence chose to keep their ‘powder dry’ until final address, rather than risk losing that advantage by raising objections. Doing that may have simply provided the prosecution with an opportunity to fill the gaps. So much can be seen in the final address where defence counsel was strident and lengthy in her criticism of the prosecution and of Dr Baber for deferring to the clinicians. This course adopted by the defence was designed to maximise the prospects of acquittal.
Finally, trial counsel never raised any of the complaints — now made for the first time on appeal — that the prosecution failed to provide adequate notice of its case on the subdural haematoma issue, that the prosecution misused the hearsay opinion evidence during the cross-examination of Professor Duflou and in their final address, and that the prosecutor misled the jury in relation to defence concessions made about the medical records.
We infer either that there was no objection taken because none was warranted, or because the defence considered that they could deal with the point forensically without the need for judicial intervention.
It is sufficient for us to say that in our view the defence had every opportunity to controvert the prosecution case and Dr Baber on both the subdural haematoma and the Clexane issues. This is evident from:
•The extensive and forensic cross-examination of the prosecution expert witnesses on these topics, where concessions were secured.
•The comprehensive evidence adduced from the defence’s own expert witness Professor Duflou.
•Defence counsel’s final address.
In short, the defence case was pursued forensically in accordance with a calculated case stratagem. This considered approach shaped the trial, including the evidential landscape. It is noteworthy that incompetence of counsel is not asserted. In all the circumstances, we would be strongly disposed to hold the applicant to the decisions made by his trial counsel as to the conduct of his trial. There is therefore nothing to be gained by examining the admissibility points now raised for the first time under this ground.
Our third reason for not determining this ground is that the evidential and forensic landscape at the retrial is likely to be different from the original trial. There is therefore limited utility in determining each admissibility point.
The state of the evidence at the original trial was framed by the fact that the impugned evidence was admitted without objection. Representations of opinion are only admissible as business records under s 69(2) of the Evidence Act 2008 if the evidence also qualifies under the requirements of ss 76–79.[55] As no objection was taken, these questions were not argued or ruled upon. There was no reason to examine whether the impugned representations constituted opinion evidence, or factual or medical observations.[56] To the extent that the applicant’s arguments now raise the case for applying ss 135–137 of the Evidence Act 2008, we are not in a position to assess whether the judge’s discretions or powers under these sections miscarried. This is because he was never asked to exercise them.
[55]Lithgow City Council v Jackson (2011) 244 CLR 352, 362–3 [18]–[19] (French CJ, Heydon and Bell JJ), 382 [77] (Gummow J); [2011] HCA 36; Lancaster v The Queen (2014) 44 VR 820, 840 [68] (Nettle, Redlich JJA and Almond AJA); [2014] VSCA 333.
[56]As to whether a diagnosis is an expression of opinion rather than a factual observation, see Duncan v The Queen [2015] NSWCCA 84 [46]–[50] (Simpson J). As to the relevance of the party’s reliance upon the representation as an expression of opinion, see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 602 [31] (French CJ, Gummow, Jayne, Crennan, Kiefel and Bell JJ); [2011] HCA 21.
Decisions on the admissibility of contested representations under the business records and opinion evidence provisions can only be made by reference to each representation. As there was no objection taken to the evidence at trial, there was an absence of focus upon the detail and foundation of the impugned representations. This lack of precision has, in some respects, carried through to this appeal.
This is exemplified by the clinical opinion evidence concerning the role played by Clexane in the rebleed on 16 August 2021. With one exception, the clinical opinion was introduced into the trial, without objection, by way of an oral summary. The detail of this opinion and its foundation — including the identification of each representation, the authors and their qualifications — have not been exposed or tested in any detail. If this evidence is contested at any re-trial, then each representation will need to be individually exposed and examined.[57]
[57]Lancaster v R (2014) 44 VR 820; [2014] VSCA 333.
Further, in the face of objection to the use of hearsay opinion evidence relating to matters of real controversy, the prosecution will need to give careful consideration to its obligations in respect of calling witnesses.[58] This may also significantly alter the evidential setting.
[58]R v Apostilidies (1984) 154 CLR 563; [1984] HCA 38; R v Sing (2002) 54 NSWLR 31, 36–37 [35] (Hodgson JA); [2002] NSWCCA 20; Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2025) [79.300].
In all the circumstances, as the state of the evidence is likely to shift at the retrial, it would be an academic exercise for this Court to embark upon an examination of the admissibility points by reference to the evidential and forensic framework of the trial below. There is one exception, to which we will now turn.
(ii)The Dr Bowtell cause of death representations
We hold concerns about the admissibility of the First and Second Bowtell cause of death entries taken from Dr Bowtell’s Notification to the Coroner dated 28 October 2021:
‘[t]he death occurred as a direct result of injuries sustained in an alleged assault’;[59] and
‘[b]rain injury secondary to multiple intracranial haemorrhages in the setting of alleged physical assault and subsequent rebleed in the setting of anticoagulation for pulmonary embolism.’[60]
[59]This was entered at the beginning of the document.
[60]This was entered as the answer to ‘possible cause of death’.
Assuming that Dr Bowtell’s notification (and the cause of death entries) qualified as business records under ss 69(2) and 79 of the Evidence Act 2008, we tend to think that they were, by virtue of s 69(3)(a), inadmissible.
Section 69(3)(a) relevantly provides that s 69(2) does not apply if the representation was ‘prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding’.[61]
[61]Emphasis added.
A ‘proceeding’ for the purposes of s 69(3)(a) extends to a coronial inquiry. It is likely that s 69(3)(a) captures autopsy reports prepared for the Coroner’s Court.[62] The Bowtell cause of death entries were relevantly akin to an autopsy report.
[62]Jausnik v Nominal Defendant (No 3) [2015] ACTSC 131 [27]–[28] (Mossop AsJ).
We see no reason to insist that the proceedings be inevitable as the respondent suggests. Section 69(3)(a) proceeds on the basis that the proceedings may not presently be in existence (notably by the words, ‘in contemplation of’).[63] Accepting that s 69(3) contemplates some probability that the proceedings will be commenced — given the nexus between the purpose behind the preparation of the document and the conducting of the proceedings — the circumstances of this case suggest that the prospect of a proceeding was sufficiently real.[64] This was a formal mandatory notification of a reportable death directed at a court which investigates and holds proceedings in relation to deaths.
[63]Averkin v Insurance Australia Limited (2016) 92 NSWLR 68, 88–89 [115] (Leeming JA, McColl and Basten JJA agreeing); [2016] NSWCA 122.
[64]Coroners Act 2008, ss 4, 10, 14, 52.
In any event, we hold further concerns about these cause of death representations, beyond the application of s 69(3)(a):
•Causation was the main controversy in this case. These cause of death representations went to that very issue.
•There was a danger the jury would turn to the Dr Bowtell cause of death entries as a makeweight to bolster the cause of death opinion of Dr Baber. That risk was amplified by the fact that Dr Baber had herself deferred to the opinions of the clinicians, as did the prosecution.
•The language in the First Bowtell cause of death entry — that the cause of death occurred as a direct result of injuries sustained in an alleged assault — was a gross over-simplification of the evidence in this case. It had the real capacity to be misused.
•The reasoning process leading to the formulation of these cause of death representations was not, and has not been, fully exposed.
•It is also not clear if Dr Bowtell was expressing the opinion herself, or whether the opinions were conveyed to her by others. The field of specialised knowledge of the author of these cause of death representations is not apparent.
•There was no real opportunity to test the validity of these cause of death representations,[65] unlike the opinions of Dr Baber and Professor Duflou.
•Evidence was adduced by the prosecution that by signing the document, Dr Bowtell was acknowledging that it was true and complete and that the form constituted a ‘legal’ document. This clothed the cause of death representations in a guarantee of trustworthiness and authority which they did not deserve.
[65]See R v Jung [2006] NSWSC 658 [60] (Hall J) citing Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, 731–745 (Heydon J); [2001] NSWCA 305.
Some of these matters may bear upon whether the cause of death representations qualify as admissible business records under s 69(2) and as expert opinions under ss 76–79 of the Evidence Act 2008; others may be relevant to the exercise of the powers under ss 135–137.
While these cause of death representations were also admitted without objection, we cannot detect any real forensic advantage to the applicant by not taking objection. In our view, the admissibility of these representations will need to be carefully considered at any retrial.
PART H:A FURTHER MATTER
Finally, we consider that there may have been a fundamental misdirection to the jury about the elements of unlawful conduct and dangerousness. The issue we have identified is not embraced by any ground. While being mindful of that, and appreciating that we have not had the advantage of full argument on the issue, we make this observation for the benefit of the parties and trial judge in any retrial.
The unlawful conduct or acts relied upon by the prosecution were the throwing of the bottle directly at the head of Mr Burke with some force and kicking him to the ground.
The prosecutor said so in her opening to the jury:
You will have to be satisfied that the accused committed those acts consciously, deliberately and voluntarily.[66]
[66]Emphasis added.
The prosecutor also summarised how the prosecution put its case:
The prosecution's case is that a reasonable person in the accused’s position would have realised that throwing a one litre bottle, effectively a 1 kilogram weight, with considerable force at the head of another person, and then kicking that person to the ground on a hard, tiled floor, would expose him to an appreciable risk of serious injury. A reasonable person would have realised that the head is a vulnerable area of the body.
The scope of the unlawful and dangerous conduct — insofar as it rested upon the throwing of the bottle — was defined by the fact that it was a targeted throw, directly at the head (because that was a vulnerable part of the body). This was the cornerstone of the prosecution case. This allegation was elemental. It was never alleged by the prosecution that merely throwing the bottle in Mr Burke’s general direction could be objectively dangerous.
It was also a disputed element. The defence case was that the evidence established only that the applicant threw the bottle in the general direction of Mr Burke and that such conduct was not dangerous.
However, the jury was never directed that a finding that the conduct was unlawful and dangerous, as alleged by the prosecution, depended upon their acceptance, beyond reasonable doubt, of the prosecution’s case that the applicant threw the bottle directly at Mr Burke’s head.
Without such a direction, there was a risk that the jury may have found the elements of unlawful and dangerous act proved, not upon the narrow basis of the prosecution case of an assault involving a direct (and targeted) throw of the bottle at the head, but merely upon the broader basis that the applicant threw the bottle in the general direction of Mr Burke.
The risk of confusion in this case was exacerbated by the trial judge’s summary of the prosecution case in the charge. He described the prosecution’s argument as being:
when you look at the CCTV, that the bottle was thrown as hard as possible and that he meant to hit Mr Burke with the bottle.[67]
[67]Emphasis added.
That statement omits the central feature of the prosecution case that the applicant targeted Mr Burke’s head (‘a vulnerable part of the body’).
The direction may have enlarged the prosecution case. In any event, it did not reflect the strict contours of the prosecution’s case on ‘unlawful and dangerous conduct’.
Somewhat surprisingly, neither counsel took exception.
Section 61 of the Jury Directions Act 2015 provides that the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are the elements of the offence charged, an alternative offence, or the absence of any relevant defence.
Of course, the judge must relate the element to the facts. The commentary to s 61 provides that when directing the jury that an element must be proved beyond reasonable doubt, the trial judge may refer to the evidence relied on by the prosecution to prove that element and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt.

In our view, such a direction was most likely required here.
PART I:CONCLUSION
Leave to appeal will be granted in respect of ground 3 and the appeal will be allowed. Orders will also be made that the applicant’s convictions be set aside and a new trial will be ordered.
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[2025] VSCA 170

11 July 2025