Melchers v R - [2003] NSWCCA 119

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Melchers v Regina [2003] NSWCCA 119

FILE NUMBER(S):
60492/02
60057/03

HEARING DATE(S): 30/04/03

JUDGMENT DATE: 23/05/2003

PARTIES:
Anthony John Melchers v Regina

JUDGMENT OF: Ipp JA Buddin J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0072

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:
Appellant (J S Stratton)
Crown (W Dawe QC)

SOLICITORS:
Appellant (D J Humphreys)
Crown (S E O'Connor)

CATCHWORDS:
CRIMINAL LAW - Appeal against conviction of manslaughter - Whether verdict was unreasonable and inconsistent with the evidence - Trial judge's directions to jury regarding close relationship between a witness and the accused - Whether circumstances under which jury returned verdict gave rise to a miscarriage of justice - Crown appeal against sentence.

LEGISLATION CITED:

DECISION:
(1) Appeal upheld (2) Set aside the verdict of the jury and in lieu thereof order that conviction be quashed and verdict of acquittal be entered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60492/02
60057/03
IPP JA
BUDDIN J
SMART AJ
Friday 23 May 2003

ANTHONY JOHN MELCHERS v REGINA

FACTS

The appellant was convicted of manslaughter. Patten DCJ sentenced him to three years imprisonment with a non-parole period of two years three months to be served by way of periodic detention. The appellant appeals against the conviction. The respondent appeals against the sentence.

HELD

The appeal against the conviction

A. (per Ipp JA, Buddin J agreeing, Smart AJ dissenting)

The jury’s verdict of guilty was unreasonable and inconsistent with the evidence. The evidence, upon the record itself, contains discrepancies and displays inadequacies to such an extent that it lacks probative force and, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: See M v The Queen (1994) 181 CLR 487 at 494.

B. (per Ipp JA, Buddin J and Smart AJ agreeing)

The sudden rapidity with which the jury changed from being unable to reach a unanimous decision to being able to reach a unanimous decision is not suggestive of a miscarriage of justice. It is not unusual for a juror, or jurors, to experience a sudden change of mind. The mechanism of a jury to some degree depends on this phenomenon.

The trial judge did not err in directing the jury that where there was a close relationship between a witness and the appellant this might be a warning for the jury to be cautious. In context, the direction was innocuous and could not have had any significant effect in the jury.

The appeal against the sentence

A. (per Ipp JA, Buddin J agreeing)

Given the conclusion that the verdict was unreasonable and inconsistent with the evidence, the appeal against sentence does not need to be dealt with for two reasons. First, the appropriate sentence would have to be considered against a notional set of facts, which would be undesirable. Second, it would be inappropriate to express a view as to whether the sentence imposed by the trial judge was appropriate or too lenient.

B. (per Smart AJ)

Due to the unusual facts, there being a single unexplained punch not necessarily intended for the deceased, it was within the sound exercise of the judge’s sentencing discretion to impose a sentence of three years imprisonment and order that the sentence be served by periodic detention with a non-parole period of two years three months.

ORDERS

Appeal upheld.

Set aside the verdict of the jury and in lieu thereof order that the conviction be quashed and a verdict of acquittal be entered.

IN THE COURT OF
CRIMINAL APPEAL

60492/02
60057/03
IPP JA
BUDDIN J
SMART AJ
Friday 23 May 2003

ANTHONY JOHN MELCHERS v REGINA

Judgment

IPP JA: On 13 August 2002, after a trial, the appellant was convicted of manslaughter. Patten DCJ sentenced him to three years imprisonment with a non-parole period of two years three months to be served by way of periodic detention.
The appellant appeals against the conviction on three grounds. The respondent appeals against the sentence on the ground that it was manifestly inadequate. I turn to the appeal against conviction.
The first ground of appeal is that the verdict was unreasonable and inconsistent with the evidence. The test to be applied in such circumstances was authoritatively stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen (1994) 181 CLR 487 at 492 to 493. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, their Honours said (at 493):
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
They explained further (at 494-495):
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to the lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based upon that evidence. … In doing so, the Court is not substituting trial by a Court of Appeal for trial by jury, for the ultimate question must always be whether the Court thinks that upon the whole of the evidence it is open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.
See also MFA v The Queen (2002) 193 ALR 184 at 190.
The charge of manslaughter related to the death of Desmond Levy (the deceased). The deceased collapsed and died at a party at the Woy Woy Masonic Hall on the night of Saturday, 28 April 2001. About 200 persons were present at the party. It seems that alcohol was available free of charge to the guests and many imbibed to a considerable extent. It was a noisy and lively affair. There was music, dancing and floor shows, including a performance by a stripper.
At about 11 pm the appellant and the deceased were standing close to each other. A third person, Mr Kevin Craft, was also standing nearby. The deceased fell to the ground in circumstances that were in dispute. He suffered a subarachnoid haemorrhage, which caused him to die probably within minutes.
It was the Crown case at the trial that, immediately before the deceased fell to the ground, the appellant punched him to the head and this punch caused the deceased’s death. The appellant denied that he had punched the deceased.
Several witnesses testified as to what occurred at the party. Only one, Mr Craft, asserted that he had seen the appellant punch the deceased.
Mr Peter Leach said that he did not see what happened to make the deceased fall to the floor. He was cross-examined about a statement he had made to the police. The following exchange occurred:
“Q. You go on at paragraph 9 to say, just to put that in context, you bumped his right side or right arm, ‘I said ‘Oh sorry mate’, and as I did Tony sort of turned to his right and looked at me. He said something like ‘You’re right mate’”. And then you say ‘As Tony turned back around to his original position, his right elbow seemed to come in contact with Des’?
A. Well as I said, that was my presumption because I, I didn’t actually see it. As I had moved away and heard the sound, knowing that Des had been standing right next to him on that side on his right side, and having turned back that way, I presumed that he must have bumped him. That was it”.
The references to “Tony” were to the appellant and to “Des” were to the deceased.
Later, Mr Leach conceded that in his police statement he had said:
“There was no force used by Tony when he made contact with Des”
and,
“There did not appear to be any malice in the action”.
Mr Leach’s explanation that he had “presumed” that the appellant had bumped the deceased, but that he had not seen him do so, is difficult to accept in the light of his statements that there was no force used by the appellant when he made contact with the deceased and that there did not appear to be any malice in his action. His evidence lends some support to the proposition that the appellant did not punch the deceased but, rather, bumped or pushed him.
Ms Jacklyn Collits was a guest at the party and knew the appellant, the deceased and Mr Craft. She testified in her evidence in chief that she saw the appellant elbow the deceased on the chest. According to her this occurred when the appellant walked past the deceased. She said that the appellant elbowed the deceased with his left elbow and the deceased fell backward, Cora Craft [Mr Craft’s wife] caught him, and then, “when Cora tried to help him to get up, he fall [sic] forward, and then he slipped his foot, his right foot because the floor is wet”. She said that she was about seven to eight metres away when she observed these events.
The Crown sought and was granted leave to cross-examine Ms Collits as an unfavourable witness. It was then put to Ms Collits that the appellant punched the deceased, but she denied this.
Miss Lovely Rose Lord was also at the party. She was aged 14 years. She testified that she saw the deceased hit his head on a wall and slip on the floor. She said that the floor was wet. The Crown sought and obtained leave to cross-examine Miss Lord as an unfavourable witness. She accepted that she had told the police that the deceased had slipped and fallen and when asked if his body had struck anything she replied to the police, “[n]o he didn’t hit anything except the floor”. She said that she did not see the appellant hit the deceased.
Ms Maria Lord, the mother of Miss Lovely Lord, was also a guest at the party. She testified that she saw the deceased slip on some beer or water. She said that her attention was drawn to the deceased as he was looking at her and she thought that he wanted to dance with her. She was interested in doing so and she said, “I was looking back at him as well”. She said that she was 10 to 15 metres away when the deceased fell.
Ms Gregoria Yerro was the appellant’s girlfriend and a guest at the party. She said that she saw the deceased “sort of slipping”. He was then two feet away. She did not see what caused him to slip.
The evidence of Mrs Cora Craft should also be noted. She heard a bang, she turned around and saw the deceased in a sitting position on the floor, she took him under the arms and tried to help him. She did not see the deceased hit his head against anything and she did not see what had made him fall to the floor. She said that when she heard the bang she had been dancing with her husband.
There were other witnesses who saw the deceased fall but did not see what caused him to fall.
In summary, some of the abovementioned evidence was to the effect that the deceased had elbowed or pushed the deceased in a manner that was not hard thereby causing him to fall, and some was to the effect that the deceased had slipped and fallen. According to this testimony, the deceased’s injuries were explicable by his fall. This evidence was contrary to the Crown case that the appellant’s injuries were caused by a punch.
The Crown accepted that the elbowing or pushing described would not fall within the ambit of unlawful and dangerous acts and would not ground liability for the offence of manslaughter.
I now turn to the evidence of Mr Kevin Craft himself. Mr Craft had known the appellant for about six years prior to the death of the deceased. The appellant said that bad feeling had existed between them for some years. He told Mr Leach at the party, before the deceased was injured, that he and Mr Craft hated each other and that it was a “long-standing thing”. Mr Craft said that their relationship had cooled since 1998 but gave the impression that they remained reasonably friendly.
At a stage prior to the performance of the stripper, an argument ensued between Mr Craft and the appellant and the appellant punched Mr Craft on his face. Mr Craft did not retaliate. By then both men had had a number of beers and, according to Mr Craft, while both were affected by alcohol, neither was drunk.
About two and a half hours later, after the performance of the stripper, the incident occurred that led to the death of the deceased.
According to Mr Craft’s evidence in chief, he was then standing about a metre and a half away from the deceased, who was on his left. Mr Leach was further to the left of the deceased and the appellant was to the left of Mr Leach. Mrs Cora Craft was on Mr Craft’s right.
Mr Craft said that he saw the appellant “come across with his arm raised”. He said he could see the appellant’s fist, which was clenched. He then saw “the deceased’s head go to the side”. Later he said that he saw the deceased’s head move towards his right shoulder. The next thing he saw the deceased on the floor “and he looked purple”. He did not see the deceased actually fall. He said that he did not see the appellant’s fist connect with the deceased. At another point in his evidence in chief, Mr Craft said that he saw the appellant’s arm coming across “towards [the deceased] and me”. After he saw the deceased’s head move, the next thing he observed was the deceased on the ground with Mrs Cora Craft next to him, attempting to assist him. He said that at the time there was music and people were dancing. The strobe lights of the disco were on.
It is to be noted, at this stage, that in order to see what had occurred Mr Craft would have had to look to his left (as the deceased and the appellant were standing to his left).
Mr Craft said that, at the time, he “had considerable alcohol in me”. He had consumed about 10 to 15 middies of beer by then. He said that the appellant did not appear to him to be intoxicated. This was contrary to the evidence of the appellant and others. There was a considerable body of evidence to the effect that at this stage the appellant was very drunk.
Mr Craft, then, in the course of his evidence in chief, testified as to a conversation he had with the appellant. In March or April of 2002 Mr Craft saw the appellant at the Woy Woy Leagues Club. The appellant said that he wanted to talk to Mr Craft and they went to sit at a table together. According to Mr Craft the appellant said to him “[d]o you want to change your statement”? Mr Craft refused.
The Crown obtained leave to cross-examine Mr Craft. The Crown prosecutor put to Mr Craft that in the police statement he had said, in effect, that the appellant had hit the deceased “hard”. The prosecutor put to Mr Craft that by that statement Mr Craft was inferring that he had “seen the hit”. Mr Craft replied, “I’ve had time to think about it and it’s gone through my brain and through my brain and through my brain. All I remember is I’ve looked that way, I’ve seen Tony coming across, then I’ve seen [the deceased’s] head go and I honestly could not say that I seen the hit. I know I’ve said it [before]”.
The prosecutor then asked Mr Craft questions about a conference that had taken place about a week previously between the prosecutor and Mr Craft. The prosecutor put to Mr Craft that Mr Craft had told him that the appellant’s punch had caught the deceased on the left side of his face and the appellant’s fist was clenched. Mr Craft was asked this question:
“But you saw it connect”.
And he replied:
“Oh yeah definitely”.
Mr Craft acknowledged that the prosecutor had correctly recounted what he had said. When asked to explain the change in his testimony, in a long and rambling reply Mr Craft said that when he had seen the prosecutor he had “just tried to stick to what I’d said”, but after leaving the prosecutor and thinking about what had occurred he could not say that he had seen the fist connect. He said that, as he could not “picture anything as far as the hit,” he was “better off telling the truth now”.
The prosecutor later put to Mr Craft that he had said to Constable Coleman:
“He hit him, I saw him hit him”.
Constable Coleman replied:
“Who hit him, what did you see?”
It was put to Mr Craft that he answered this question by saying:
“Tony, Tony hit him”.
When asked whether he could remember giving these replies to Constable Coleman, Mr Craft said:
“I can and I can’t really. That’s what I was saying yesterday, I know what I think I seen but over the period of time I’m not sure, I’m really not sure”.
He then said that it was possible that he saw the fist connect.
The prosecutor pursued this line of questioning and put to Mr Craft that Constable Coleman asked him to tell her what had happened and he replied:
“Tony hit me, he was then walking past and he bumped into Tony, Tony hit him and he fell on the floor”.
Mr Craft said he could remember telling Constable Coleman this.
I interrupt this account of Mr Craft’s testimony to note that Constable Coleman gave evidence and confirmed the various conversations between herself and Mr Craft which I have set out above and which were put by the prosecutor to Mr Craft.
Mr Craft was cross-examined by counsel then appearing for the appellant. It was put to Mr Craft that in a statement he had previously made to the police he had said that, immediately prior to the incident, when he was standing with the deceased next to him, he was looking towards the stage in the hall “watching the girls dancing”. From a plan that became an exhibit at the trial it became apparent that Mr Craft must have been looking towards his right as the stage was in that direction. As previously noted, however, the deceased and the appellant were on his left and Mr Leach was standing between the deceased and the appellant. Mr Craft would have had to look left to have seen the incident.
Mr Craft was cross-examined as to how he was able to see the deceased if he was looking at the stage. He said that he turned his head because he must have seen some movement out of the corner of his eye and it was then that he saw the appellant’s arm. He could not say that there was anything in particular that attracted his attention. He did not mention that the appellant was moving towards the deceased.
It then emerged that, in his police statement, Mr Craft had said that Mr Leach was standing about 1.5 metres away from him (to his left) and the appellant was standing about 1 to 1.5 metres to the left of Mr Leach. In other words, the appellant was between two and three metres from Mr Craft, and not 1 to 1.5 metres as Mr Craft originally testified. Mr Craft then indicated where the appellant was standing and that distance was estimated by the trial judge as being “more like four metres”. Mr Craft agreed with this.
Mr Craft accepted that from the position in which the appellant was, some four metres away from the deceased with Mr Leach, a big man, between the appellant and the deceased, to make contact with the deceased the appellant would have had to move. Mr Craft then said that he saw the appellant “coming across”.
Mr Craft accepted that his powers of observation were affected by the alcohol that he had consumed and he agreed with the proposition that “even today you can’t trust your own recollection of the events”.

Later, in his cross-examination, the following exchange occurred:
“Q. It’s troubled you for some time hasn’t it as to whether or not you saw the accused strike Mr Levy, it’s troubled you in your mind and your conscience hasn’t it?
A. Yes”.
Thereafter, when Mr Craft was cross-examined about his evidence that the appellant asked him to change his statement it was put to him that he did so on the basis that Mr Craft had made it clear that he was unsure as to what he had said was in fact what he had observed. Mr Craft replied:
“That could have been the reason”.
Mr Craft, from a reading of the transcript cannot, by any stretch of the imagination, be regarded as a satisfactory witness. His evidence was internally inconsistent in regard to material matters. His evidence as to whether he had seen the appellant’s fist strike the deceased differed from what he had earlier told the police and subsequently the prosecutor. His memory on this important issue was plainly unreliable. His account of where the appellant was standing in relation to Mr Leach, the deceased and the appellant, and where Mr Craft was looking immediately prior to the incident, raised questions as to the likelihood of him seeing the incident at all. Mr Craft’s version that he gave to Constable Coleman was entirely different to the version he gave in Court. It will be recalled that the version he gave to the constable was that, firstly, the appellant hit him, that is, Mr Craft. The deceased then walked past and bumped into the appellant. The appellant then hit the deceased who fell to the floor. Additionally, on several occasions, Mr Craft conceded that he was uncertain as to what he had seen and he accepted that he, himself, did not trust his own recollection.
The Crown led evidence as to what the appellant had said after the party on 29 July 2002. Mr Brian Smith testified that the appellant said:
“It was only a push, we are mates, you have to back me up”.
In a tape of an intercepted phone call that took place on 2 May 2001 between Mr Smith and the appellant, the appellant said that he could not remember whether he had hit the deceased and said that he thought that he had pushed him. In a later conversation between the two, Mr Smith told the appellant that the police had said that the deceased had died from a severe hit to the head. The appellant’s response was:
“Fair dinkum”.
Mr Smith later asked the appellant whether he had hit the deceased. The appellant replied:
“I must of. No, unless he hit the ground”.
When Mr Smith later said to the appellant that he must have “given him a decent hit”, the appellant replied:
“Dunno. Not sure”.
On 29 April 2001 (the evening after the incident), Detectives Nugent and Hill asked the appellant some questions about the incident. Detective Hill said:
“Anthony mate you assaulted someone at the Masonic Club last night”.
The appellant said:
“Yeah, I remember that, Kevin [Craft], it’s a thing that goes back years”.
Detective Nugent said:
“Mate, I’ve also been told you assaulted another fellow there”.
The appellant said:
“Oh, did I?”
Detective Nugent said:
“Yeah, a bloke called Desmond Levy”.
When Detective Nugent told the appellant that the deceased had died and asked whether he, the appellant, knew anything about that, the appellant replied the negative. Detective Nugent said:
“Mate, I’ve been told you punched Des”.
The appellant said:
“I pushed him because he was harassing my wife”.
Detective Nugent said:
“Harassing Jeannie was he?”
The appellant answered:
“Yes”.
In a video taped interview the appellant was asked if he had punched Mr Craft and he said:
“I may have done so”.
Later he said:
“It’s all pretty vague to me to be honest”.
He was asked if he remembered pushing the deceased and he replied:
“Not really, no”.
He was asked if he recalled punching the deceased and he said that he “did not recall doing that”.
When seen in context, the statements made by the appellant during these conversations are equivocal and do not add materially to the strength of the Crown case.
The Crown also relied on the evidence of Dr Oettle, an experienced forensic pathologist who had examined the deceased. Dr Oettle found a bruise measuring about 40 mm by 30 mm behind the attachment of the left ear. He said that the bruising was consistent with the use of a fist. The bruise had been caused by a blow delivered with a “quite marked” degree of force. Dr Oettle, in chief, expressed the opinion that the bruise could not have been caused by the deceased hitting his head on a flat surface such as a wooden floor. He was of the opinion that the deceased died from a subarachnoid haemorrhage resulting from a blow to the head. A subarachnoid haemorrhage is “a bleeding over the surface of the brain”. He did not look for the source of bleeding.
In cross-examination, Dr Oettle recognised that it was possible that the subarachnoid haemorrhage was caused by a “fall over backwards” and, indeed, by a wide range of “seemingly innocuous activities”. He said that his view of the mechanism of death (a blow to the head where the bruise was found) was “a reasonable probability”.
Dr Du Flou gave expert evidence on behalf of the appellant. Dr Du Flou was the acting clinical director of the Department of Forensic Medicine. He agreed that the cause of death was a subarachnoid haemorrhage, but said that such a haemorrhage could have a number of causes. These included a blow to the side of the head or neck, bleeding from a vertebral artery (such as from a berry aneurism) or from an impact resulting from the deceased’s fall to the ground. According to Dr Du Flou the bruising to the deceased’s head could have been caused by the deceased hitting his head in the course of his fall.
Dr Du Flou testified that the failure to determine the site of the bleeding meant that it could not be said with any reliability that death was due to a basal subarachnoid haemorrhage due to trauma. He said that such a conclusion could not be arrived at without seeing the injury to the blood vessel. Without this material one could only make a “supposition, possibly an educated guess”.
The dispute between Dr Oettle and Dr Du Flou was an important part of the trial. In the course of their deliberations, the jury requested the transcript of the evidence of Dr Oettle. It is apparent from their decision that they preferred Dr Oettle’s evidence to that of Dr Du Flou. It is difficult to determine the basis for this preference. It is true that Dr Oettle examined the body of the deceased while Dr Du Flou did not. This, however, should not have played a significant part in the decision as the fact that Dr Du Flou had not seen the body did not mean that he was not qualified and able to express a sound opinion on the issue. On a reading of the testimony of the two pathologists involved, there is little, if anything, that could be said to lead to a conclusion that the opinion of one is more cogent or more persuasive than that of the other.
There was some evidence led by the Crown to the effect that Mr Craft might have been jealous of the deceased, because earlier on the evening of the party the deceased had been dancing with his wife. This evidence was not particularly strong and did not impress the trial judge. He said, in the course of his sentencing remarks:
“The motive for the prisoner’s sudden assault upon the deceased remains unexplained. Indeed, the blow may have been intended for someone else. His evidence was to the effect that he could not remember what occurred. Possibly the prisoner in his alcoholic state magnified out of all proportion a sense of grievance arising from the fact that earlier in the evening the deceased made a wholly innocent approach towards his girlfriend which she properly treated as a joke and conveyed to the prisoner”.
The appellant testified that due to the extent of alcohol that he had consumed he could not remember what had happened. He could not remember any argument with the deceased, he did not recall pushing the deceased and, as I have mentioned, denied that he had punched the deceased.
In essence, the jury were faced with the evidence of Mr Craft seen against the testimony of the other eye-witnesses, the evidence of what the appellant said after the incident, and the conflicting expert evidence.
One argument, advanced by the Crown, is that the view of Dr Oettle could be regarded as the foundation of the jury’s decision. On this basis, once the jury had decided that they preferred the evidence of Dr Oettle to that of Dr Du Flou, they would inevitably accept that the deceased died as a result of a blow to the head. The only explanation for such a blow was that given in the course of Mr Craft’s evidence, namely, that the appellant aimed a punch at the deceased and thereafter the deceased fell to the ground and died.
There are, however, major difficulties with this argument. Firstly, Dr Oettle’s opinion was expressed in terms of the bruise he found being “consistent with” a blow to the head. He did not in terms say that the bruise had been caused by a blow to the head. Secondly, Dr Oettle said that the cause of death which he propounded was a “probability”. He was not prepared to attach a greater degree of certainty than that. Thirdly, he recognised the possibility that the subarachnoid haemorrhage was caused by another mechanism, including a backwards fall. Fourthly, as senior counsel for the respondent accepted, the substantial reason for the jury’s preference for Dr Oettle must lie in reasons of demeanour. Particularly when it comes to expert evidence, when there is little otherwise to chose between the probative force of the conflicting views expressed, demeanour can be a dangerous basis for deciding which opinion is correct.
Accordingly, I do not accept that the jury’s preference for Dr Oettle can anchor the Crown case in the way suggested. Undoubtedly, the jury’s preference for Dr Oettle must be given significant weight, but without reasonably reliable evidence which established that the appellant punched the deceased, Dr Oettle’s evidence cannot carry the day.
Accordingly, the lynch pin of the Crown case was the testimony of Mr Craft. As I have mentioned, he was the only witness who asserted that the appellant had punched the deceased. Without his testimony, the Crown could not establish its case.
But, as I have said, Mr Craft’s evidence was quite unsatisfactory. I have referred to the matters that indicate it to be materially unreliable. Even without the evidence of the other eye-witnesses, there would have to be grave doubts, on his testimony, as to whether the appellant punched the deceased. In my opinion, a reasonable jury could not have relied on Mr Craft’s testimony to establish the appellant’s guilt beyond reasonable doubt.
To paraphrase the joint judgment in M v The Queen at 494, the record itself contains discrepancies and displays inadequacies to such an extent that it lacks probative force such as to lead me to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.
Although it is strictly speaking unnecessary to consider the other grounds of appeal and the appeal against sentence I shall, briefly, refer to them.
The second ground of appeal on which the appellant relied was that:
“The circumstances under which the jury returned a verdict of guilty indicate that a miscarriage of justice has occurred.
The jury retired to consider its verdict on Friday 9 August 2002 at 2.40 pm. The jury separated at about 3.54 pm and recommenced deliberations on Monday 12 August 2002. At about 12.35 pm the jury sent the judge a note which read:
“We are unable to come to a unanimous decision.”
Patten DCJ then gave the jury a direction in accordance with Black v TheQueen (1993) 179 CLR 44 (at 50 to 52). At 12.40 pm the jury returned to further consider their verdict. At about 3.40 pm the jury sent the judge another note which read:
“We’re are unable to make a unanimous decision”.
Patten DCJ remarked:
“Subject to me questioning them about that I think they have probably deliberated long enough and I ought to discharge them”.
Neither counsel objected. The jury returned to Court at 3.40 pm. His Honour asked the foreman if more time would enable the jury to resolve the situation. The foreman said that it might. The judge decided not to discharge the jury and permitted them to separate. On Tuesday 13 August 2002 the jury retired to consider its verdict further. Their deliberations endured virtually the whole day until shortly before 4 pm when the jury sent Patten DCJ a note stating that they were unable to come to unanimous decision. The judge observed:
“Subject to what the foreman said I think they should be discharged”.
Both counsel agreed. Before the jury could be brought in, the foreman sent the judge a further note. This read:
“We the jury have come to unanimous [sic].”
The note had the time 4.05 pm written on it. At 4.08 pm the jury returned a verdict of guilty.
Mr Stratton, who appeared for the appellant, accepted that Patten DCJ had made no error in his directions to, and treatment of, the jury. He did not submit that the jury had not been free to deliberate without pressure being placed upon them. He submitted merely that the sudden rapidity with which the jury changed their minds is suggestive of a miscarriage of justice.
I do not accept the submissions advanced on the appellant’s behalf in regard to the second ground of appeal. It is not unusual for a juror (or jurors) to experience a sudden change of mind. The mechanism of a jury to some degree depends on this phenomenon. I see nothing sinister in what occurred.
The third ground of appeal was that:
“The learned trial judge erred in directing the jury that where there was a close relationship between a witness and the appellant ‘it might sound a warning bell, a warning that you should be cautious’”.
It was argued on the appellant’s behalf that this direction could have an unfairness to the appellant as it tended to detract from the weight of the evidence, particularly of his girlfriend Ms Yerro. I am not persuaded by this submission. As I have mentioned Ms Yerro did not see what caused the deceased to slip. She did testify that the appellant was severely intoxicated at the time of the incident involving the deceased, but I do not think that that evidence was of significant moment. There was ample evidence to the same effect. In context, the direction was innocuous and I do not think that it could have had any significant effect on the jury.
For two reasons I do not propose to deal with the appeal against sentence. Firstly, in view of the conclusion to which I have come as regards the verdict, the appropriate sentence would have to be considered against what I would regard as a notional set of facts, and I think that is undesirable. Secondly, having concluded that a verdict of acquittal should be entered, I think it inappropriate to express a view as to whether the sentence imposed by the trial judge was appropriate or too lenient.
For the reasons I have expressed in regard to the first ground of appeal, I would uphold the appeal, set aside the verdict of the jury and in lieu thereof order that the conviction be quashed and a verdict of acquittal be entered.
BUDDIN J: I agree with Ipp JA.
SMART AJ: The facts and the issues are set out in the judgment of Ipp JA. It is clear from the matters referred to in his judgment that it was not reasonably open for a jury to be satisfied beyond reasonable doubt of the appellant’s guilt based on the evidence of Mr K Craft alone. The primary question which arises is whether there was any supporting evidence which, when taken with the evidence of Mr Craft, was sufficient to enable a jury, acting reasonably, to be satisfied beyond reasonable doubt of the appellant’s guilt of the manslaughter of Desmond Levy (the deceased). That leads on to the ultimate question whether on the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
In the context of the primary question the evidence of the very experienced forensic pathologist, Dr T H G Oettle requires detailed consideration. He carried out the post mortem examination. It was his opinion that the cause of death was a traumatic subarachnoid haemorrhage resulting from a head injury caused by a blow to the head. Dr Duflou, a forensic pathologist thought that the cause of death was a subarachnoid haemorrhage but that it was not possible to go further and say definitely that it was caused by trauma.

The initial post mortem examination was carried out on 29 April 2001 commencing at 11am, about 12 hours after the death of the deceased. Two days later Dr Oettle carried out a further post mortem examination. He found there was an area of recent bruising measuring 40mm wide by 30mm with the front limit of the bruise about 40mm behind the attachment of the left ear, that is the bruise was at the base of the skull and at the top of the neck at the back on the left side. The top of the bruise was level with the hole in the middle of the ear. It was just underneath the curvature of the skull. There was bruising in the superficial tissues and bruising in the muscle underlying that area. The bruising was recent. Dr Oettle thought that from the external appearances blunt force was applied and noted that it was sufficient force to cause a bruise in muscle underlying the skin. Blunt force does not leave a detailed injury on the skin such as comes from a spanner or a hammer or a corner of a table. There is a generalised area of bruising. The depth of the bruising into the muscle was deep, about 2½ to 3cms from the surface of the skin. The bruise was consistent with the use of a fist.

Dr Oettle said that the degree of force necessary to cause such bruising would be quite marked. He estimated that the bruising would have been caused within about 24 hours of death. He did not think that the bruising could have been caused by the deceased hitting his head on a flat surface such as a wooden floor because of the shape of the head and the shoulders behind. The bruise was in the curve from the back of the head to the shoulders.

Dr Oettle said that on 29 April 2001 he observed a recent subarachnoid haemorrhage rising up from the base of the brain. This was extensive and coming up on both sides and in the front of the brain. He did not see the artery which ruptured but the results of the cascading blood. Dr Oettle did not find the source of the bleeding nor did he look for the vessel which ruptured. It was not possible to see the vessels because they were smothered in blood. The vessels lie under the arachnoid membrane so the whole of the base of the brain was covered with blood. The brain was put into formalin and fixed and sent to the Neuropathology Department of Sydney University. The doctors in that Department would look for a tear in any vessel.

Dr Oettle said that a sudden and unexpected movement of the head causes one of the arteries to close. This stops the blood flowing through that artery. This created a shock wave which moved and ruptured a vessel. The degree of force generated causes a sudden backward movement of the head. The doctor thought that there was a correlation between the bruising and the traumatic subarachnoid haemorrhage. There was no way the bruising could have been caused by the post mortem examination. The doctor gave detailed reasons for this conclusion. He said that no alcohol was found in the blood of the deceased. This meant that if the deceased had had any alcoholic liquor he had metabolised it all by the time he died.

At the conclusion of his evidence in chief Dr Oettle affirmed that the cause of death was the traumatic subarachnoid haemorrhage and that the trauma associated with that was a blow to the head.

On the evidence of Mr Craft and the evidence in chief of Dr Oettle the jury would reasonably have been able to find beyond reasonable doubt that the appellant was guilty as charged.

However, the appellant placed considerable reliance on the evidence elicited in cross-examination. Dr Oettle agreed that his preferred finding was that death was caused by a blow to the head or neck resulting in the rotation of the head. Dr Oettle agreed that another possible cause was vertebral artery dissection with basal subarachnoid haemorrhage caused by another mechanism, including a fall over backwards. Dr Oettle agreed that a subarachnoid haemorrhage had been known to happen in chiropractic manipulation, childbirth, turning the head suddenly, callisthenics, painting a ceiling and a large range of seemingly innocuous activities. He further agreed that in a percentage of these cases no definite predisposing factor has ever been determined.

Dr Oettle agreed that in some instances with this cause of death a tear of a blood vessel at the base of the brain had occurred, most commonly the inter-cranial segment of one of the vertebral arteries, in other cases there have been injuries involving the extra-cranial segments of the vertebral or carotid arteries. There was no examination of the extra-cranial segments of the vertebral arteries of the deceased. Dr Oettle did not regard such an examination as necessary as there was no injury to the neck other than at the base of the skull. So, he thought that the injury to the extra-cranial vertebral arteries and to the carotid arteries is a possibility that has happened in other circumstances, but it was not a possibility which applied in the circumstances of the present case. He was not aware whether there was a partial tear of the vessel nor whether there was any pre-existing disease of the vessel wall. He rejected the proposition that without further tests involving the extra-cranial segments of the arteries and the wall of the blood vessel the mechanism of death which he advanced could not be elevated above the level of a possibility

Dr Oettle insisted that the cause of death specified by him was a reasonable probability. He said that if you do not find an aneurism which has burst an artery the source of the escaping blood must be the result of a laceration or a defect in them, a tear.

Dr Oettle said that there was no evidence of an extra-cranial rupture and no injury to the neck other than high at its junction with the base of the skull. If there had been an extra-cranial rupture there would have been some evidence of it for a certain length of the vertebral arteries.

Dr Oettle agreed that a natural disease process can lead to rupture of a blood vessel over the base of the brain and a subarachnoid haemorrhage. This can happen with a range of diseases and in some instances death will result. It manifests itself as a defect in the wall of the blood vessel with localised expansion of the vessel lumen, that is the inside diameter of the vessel. Any activity which raises blood pressure, including strain and stress, can increase the chance of rupture.

Dr Oettle said that while he was aware that people all over the world have said that aneurisms may be so small that they have been destroyed in the process of bleeding, he found it difficult to believe. He did not accept the proposition that if no site of bleeding was identified this subarachnoid haemorrhage may have been due to the rupture of an unidentified aneurism. He said that the aneurisms he had seen had been very easily identified. He had not come across an unidentifiable aneurism in over 40 years experience.

Dr Oettle agreed that each of the mechanisms of, firstly, a blow to the head or neck resulting in the sudden rotation of the head, secondly, vertebral artery dissection with basal subarachnoid haemorrhage and, thirdly, a subarachnoid haemorrhage due to rupture of a blood vessel over the base of the brain as a result of a natural disease process, could provide extensive bleeding over the undersurface of the brain.

Dr Oettle said that he did not know whether there had been a rupture of the vertebral artery. The artery ruptured might have been one of the little arteries that branch off immediately after the vertebral artery fuses to form the basilar artery. There were a variety of areas where it might have occurred, but he thought it would be the intra-cranial segment of either one of the vertebral arteries or one of the other arteries.

Dr Oettle rejected the proposition that he should have ascertained if there was a prior dissection of the blood vessel extra-cranially in the neck. His reason for that rejection was that there was no injury around the neck. If there had been a pre-existing disease of the wall of the blood vessel he would have expected that to have shown up in other vessels, more particularly in the intra-cranial portion where the majority of lacerations occur.

Dr Oettle said that the source of the bleeding was inside the skull, not outside rising up. The majority of the blood was in the subarachnoid space and the vertebral arteries in the cervical spine are well outside the arachnoid. A minimal amount had gone down into the spinal canal. Dr Oettle said that he was not aware of the site of the rupture being located, but added that in the majority of traumatic subarachnoid haemorrhages the site of the rupture is not determined. If it is, that is a bonus.

Dr Oettle thought that it was estimated that in ten per cent of post mortem cases or more where the cause of death was thought to be as a result of a catastrophic rupture leading to a subarachnoid haemorrhage the presumed aneurism may never be found. However, he did not accept the suggestion in the present case that a possible cause of death was an unidentified aneurism. He remarked, “I am not quite sure why it wasn’t identified if it was an aneurism and it was there”

Dr Oettle said that a berry aneurism is relatively rare. It can occur when a trivial amount of force is applied to a condition such as blood pressure.

It was suggested to Dr Oettle that various other tests and examinations could be, and should have been, carried out to eliminate possibilities other than the cause of death which he suggested. He disagreed.

Counsel for the appellant put to Dr Oettle a number of possible ways in which the bruising at the back of the skull not far from the left ear might have occurred apart from the application of blunt force by a fist or similar method, but Dr Oettle rejected these suggestions. He also rejected as a possibility that the bruising located may not relate to the cause of death at all.

Dr Oettle said that the location of the bruising meant that because the head is eccentrically held, the head was able to be swung and moved. Dr Oettle said that he had seen similar haemorrhages with each of a slap on the face, a punch to the face, a punch to the back of the head, and a punch to the side of the neck near the ear. He added, “the mechanism seems to be that the head rotates unexpectedly and you get a sudden closure.”

In re-examination Dr Oettle stated that the vessels outside the skull could not be a source of the bleeding because if they are outside the arachnoid they will not bleed into the arachnoid, they bleed outside it. If the tear had been outside the skull, there would have been evidence of bleeding outside the skull and there was no evidence of bleeding outside the skull other than in the bruised area.

I have summarised the evidence of Dr Oettle at length because of its importance. Further, because of the manner of expression and the complexity of the matters covered it is not easy to follow. When the jury retired they sought a copy of the transcript of his evidence.

When Dr Oettle’s evidence is analysed it seems to support the following:
(a)Blunt force of sufficient strength was used to cause recent bruising at the base of the skull on the lefthand side in the superficial tissues and deep into the underlying muscle
(b)that bruising relates to the cause of death. It is not possible that it does not relate to the cause of death
(c)it was a reasonable probability that the mechanism of death was a traumatic subarachnoid haemorrhage
(d)other possibilities or scenarios which may apply in other circumstances could safely be rejected in the present case. That included a fall over backwards. There were no other realistic possibilities
(e)With a sudden unexpected punch the head rotates unexpectedly and there is a sudden closure of the artery leading to the haemorrhage
(f)the present case has the hallmark of a sudden rupture of a small vessel at the time of the injury occurring and it follows the pattern of every other traumatic subarachnoid haemorrhage.

Having dismissed the other possibilities as unrealistic there remains the reasonably probable cause of death of traumatic subarachnoid haemorrhage and no other. The trauma involved was the application of blunt force to which the bruise on the left hand rear of the skull at its base is testimony. A punch is capable of inflicting the blunt force. The evidence of Mr K Craft is that the appellant threw a punch. That connected with the deceased.

The evidence of Dr Oettle was in part supported by Dr R S Pamphlett to whom the brain of the deceased was sent. Dr Pamphlett holds the postgraduate degree of Doctor of Medicine and Fellowships of the Royal College of Pathologists and the Royal Australasian College of Physicians. He is a senior lecturer at the University of Sydney and a senior academic consultant at Prince Alfred Hospital. He specialised in neuropathology and neurology. For the previous 15 years he had been engaged in the examination of brains that had been forwarded to him. On 19 June 2001 he conducted an examination of the brain identified as that of the deceased.

On examination of the brain there was a large amount of haemorrhage over the external surfaces of the brain in what has been called the subarachnoid space. This was over the sides of the brain, especially the left section, and underneath the brain.

Dr Pamphlett said that the most common cause of subarachnoid haemorrhage is due to trauma. Where there has not been trauma the most common cause is a ruptured aneurism or blow out on the vessels at the bottom of the brain. Aneurisms virtually only occur there.

Dr Pamphlett explained that the arteries had been extracted from the brain and carefully examined. No aneurisms could be identified. All aneurisms can be seen with the naked eye. Aneurisms are usually above one centimetre when they rupture. They can rupture when they are smaller, but that is fairly uncommon. There was no evidence of an aneurism.

Dr Pamphlett said that he and his assistants did not locate the source of the bleeding. There was no evidence of vascular disease in any of the areas that they looked at.

In cross-examination Dr Pamphlett said that it was possible for a ruptured aneurism to blow away the rest of the aneurism. This would leave a reasonably sized hole about the point of explosion and you would usually see that.

Dr Pamphlett stated that Greenfield Neuropathology, a textbook, mentions that the cause of 10 to 15 per cent of spontaneous subarachnoid haemorrhages is not found and that it postulates that a small aneurism has burst. It Is only a postulate because the aneurism is not found. Dr Pamphlett said that that could happen on a small blood vessel on one of the branches of the vertebral artery, that is deep within the clot. The vessels have to be pulled out of the clot and it is possible that a small aneurism could be missed there. Dr Pamphlett said that such an aneurism, if it ruptured, would theoretically be capable of causing death.

On the Crown case, a jury acting reasonably was entitled to find the guilt of the appellant had been established beyond reasonable doubt. They would have been entitled to rely on the 40 years of experience of Dr Oettle and the reasons he gave for rejecting the other possibilities.

It is necessary to turn to the evidence of Dr J Duflou, forensic pathologist. He has been a medical practitioner since 1982. He holds the postgraduate degree of Master of Medicine in forensic pathology and is a Fellow of the Royal College of Pathologists of Australasia. He was a specialist forensic pathologist, He was the Acting Clinical Director of the Department of Forensic Medicine at Glebe and Clinical Senior Lecturer in the Department of Pathology at Sydney University. He commenced employment with the Division of Forensic Medicine in 1988 and worked with Dr Oettle as the Acting Director until 1993. Dr Duflou became the Deputy Director during that time.

Dr Duflou said that the cause of death was bleeding over the surface of the brain (subarachnoid haemorrhage). Dr Duflou detailed a number of mechanisms which could cause this. First, there was a traumatic basal subarachnoid haemorrhage due, for instance, to a blow to the side of the head or neck. In this there is a tearing of a blood vessel at the base of the brain or within the neck structures itself causing a collection of blood at the base of the brain and this causes death. Secondly, there are circumstances, on occasion, where following a fall over backwards a person can sustain injury to his neck structures. Thirdly, there is a range of natural disease processes where a person has a weakness in the blood vessel in the brain and it bursts. He instanced a berry aneurism.

Dr Duflou said that the difficulty with Dr Oettle’s examination and report was that there had not been a detailed examination of the blood vessels and the bony structures within the neck. The vertebral arteries can be damaged and can tear and this can cause bleeding. He added that scientific papers tend to indicate that it is now more commonly thought that vertebral artery trauma occurs in the neck structure rather than within the head itself.

Dr Duflou stated that it was very important to try and identify the site of the bleeding. He detailed a series of steps and procedures which he believed should be taken after the brain is removed from the skull. Failure to do so might result in a failure to discover the cause of the haemorrhage. Not only could a natural disease process be identified which may have caused the death but it cannot be said that death was due to a traumatic basal subarachnoid haemorrhage if the injury to the blood vessel cannot be seen. It cannot be elevated above a possibility.

As to the bruising Dr Duflou thought that the first possibility was that the deceased was struck a blow to the part of the head where the bruising was located The second possibility was that if there has been bleeding from a vertebral artery, especially within the neck, there can be blood oozing out into the soft tissues and into the muscles of the neck. The vertebral artery is a blood vessel under quite significant pressure and, if there is damage to that blood vessel, blood can push into the surrounding tissues and manifest as a bruise. Thirdly, the bruise may have happened as the deceased fell to the ground. A bruise need not necessarily happen at the exact site of the impact,
The fourth possibility was rough handling during the attempted resuscitation. The fifth possibility was that the bruise was caused during the post mortem examination.
Dr Duflou was referred to the evidence of Ms Lord that the deceased stepped on a wet patch on the floor and struck his head against a wall. Dr Duflou believed that would be capable of causing the bruising, depending on exactly how it happened. An examination of bruising can indicate the severity of a blow, but not necessarily. The amount of bruising is not a good indication of the amount of force used.
Dr Duflou stated that one of the features that is not uncommon in a traumatic basal subarachnoid haemorrhage is a small break in the first or second vertebral body. There was no examination of the spine to ascertain if there was such a break.
According to Dr Duflou, in known non-traumatic incidents where there has been no violence, and a person has sustained a subarachnoid haemorrhage, no abnormality will be found in the blood vessels in 10 to 20 per cent of cases. He thought that unless the pathologist can establish the site of the bleeding, a mechanism cannot be attributed to that bleeding. Dr Duflou stated that there are many reasons why a person can have bleeding within the spinal column and within the vertebral arteries. If the spinal column is not examined in this type of case a firm view as to why the person has died cannot be formed.
Dr Duflou stated that in the majority of cases where a person has died of a berry aneurism and the brain is examined properly, the berry aneurism will be found and a rupture in that aneurism (typically the top blows off) will be identified. In between 10 and 20 per cent of cases the aneurism is never found.
Dr Duflou commented that punches to faces and necks are common. The number of cases of vertebral artery tears is very small. There are possibly one or two per year in this State resulting in death. The amount of force required to cause such a tear is not great. The chances of a punch causing a vertebral artery tear are very low.
In cross-examination Dr Duflou stated that it is known that when a person is stressed he is more likely to rupture an aneurism than otherwise. An altercation could cause stress. Dr Duflou agreed that it would be a coincidence if a berry aneurism causing death occurred at the very time the deceased was said to have been struck with a blow, but it would not be unheard of. This assumes that there was a blow. An aneurism would be less likely if the blow came unexpectedly to the back of the head. Although Dr Oettle looked for and did not find another natural cause, Dr Duflou still viewed it as a reasonable possibility when the site of the bleeding had not been located. Dr Duflou agreed that the bruise was consistent with a blow to the back of the head.
Dr Duflou agreed that in relation to what was found he was somewhat at a disadvantage as he did not conduct the post mortem examination and that Dr Oettle was in the best position to make an assessment of the internal examination.
Dr Duflou did not accept that the amount of bruising was a good indication of the amount of force applied. It could have been caused by a rotation of the head with a twisting motion with the tearing of the muscle or tissue. Another option was contact with the floor.
Dr Duflou said that if the source of the bleeding was outside the skull, the blood inside the skull must have come up into the skull from a rupture down in the neck somewhere. As it was a very extensive subarachnoid haemorrhage this would mean that a significant amount of blood came up from the neck and into the base of the brain.
Dr Duflou accepted that Dr Oettle looked at the neck. Dr Duflou did not accept that there was no evidence of haemorrhage in that area. He maintained that arguably there was because the photograph of the back of the neck shows bleeding into the structures there, that is the bruise. That is not a convincing argument.
Dr Duflou agreed in general terms with Dr Pamphlett that aneurisms occur in a very restricted area of the brain, that is, at the base of the brain.
Despite Dr Pamphlett taking out all the arteries at the base of the brain, examining them all and finding no aneurisms in the area where they occur, Dr Duflou maintained that an aneurism was a reasonable possibility. He thought that a natural disease process of those blood vessels was a reasonable possibility.
The jury would have been entitled to proceed as follows:
(a)It was accepted by the three doctors that the deceased had died of a basal subarachnoid haemorrhage. The issue was whether it was traumatic.

(b)The most common cause of subarachnoid haemorrhage is due to trauma

(c)Where there has not been trauma the most common cause is a ruptured aneurism. Aneurisms virtually only occur at the bottom of the brain. All aneurisms can be seen with the naked eye. The arteries were extracted from the brain and carefully examined. There was no evidence of an aneurism in the present case. It has been postulated that the cause of 10 to 15 or 20 per cent of spontaneous subarachnoid haemorrhages is not found. It is only a postulate because the aneurism is not found. It is possible that a small aneurism on one of the branches of the vertebral artery may be missed. Theoretically such an aneurism, if ruptured, was capable of causing death. The implication was that this was most unlikely. Dr Duflou accepted that if a blow to the back of the head was unexpected stress and a consequent aneurism would be less likely.

(d)In the light of the evidence of Drs Oettle and Pamphlett there was no reasonable possibility of an unidentified aneurism causing death in the circumstances of the present case.

(e)It did not accept the evidence that the deceased had been elbowed or pushed and that caused him to fall, nor the evidence to the effect that the deceased has slipped and fallen.

(f)There was no realistic possibility that the bruise at the base of the deceased’s skull was caused by his hitting his head on the wall or the floor.

(g)There was no realistic possibility of the deceased sustaining the bruise during the resuscitation attempts or during the post mortem examination.

(h)Blunt force of sufficient strength was used to cause recent bruising in the superficial tissues and deep into the underlying muscle and that bruising relates to the cause of death,

(i)It accepted these opinions of Dr Oettle that:

(i)it was not necessary to locate the site of the bleeding; indeed in the majority of traumatic subarachnoid haemorrhages the site of the rupture is not determined.

(ii)it was not necessary to make a detailed examination of the blood vessels and the bony structures within the neck as there was no injury to the neck other than at the base of the skull.

(iii)If there has been a pre-existing disease of the wall of the blood vessel it could be expected to have shown up in other vessels especially in the intra-cranial area. There was no evidence of a pre-existing disease

(iv)the source of the bleeding was inside the skull, not outside, rising up.

(j)Dr Duflou was at a disadvantage not having conducted the post mortem examination and Dr Oettle was in the best position to make an assessment of the internal examination.

(k)it accepted that there was a reasonable probability that the mechanism of death was a traumatic subarachnoid haemorrhage. There were no other realistic possibilities.

(l)the present case has the hallmark of a sudden rupture of a small vessel at the time of the injury occurring and follows the pattern of every other traumatic subarachnoid haemorrhage .

(m)When the accepted medical evidence was taken with other acceptable evidence, the Crown had proved its case.

It was for the jury to consider all the medical evidence and decide upon the medical evidence which it accepted. Assessment by a jury of competing medical evidence is an exacting task but one which is frequently undertaken. This was a case in which the jury had to consider whether the “possibilities” advanced by the appellant were realistic possibilities, or, in the circumstances of this case, possibilities which could not be classed as reasonable. In such a situation the jury may well have relied on the deep well of experience from which Dr Oettle could draw and the assessments he made from conducting the post mortem examinations. At the trial the Crown relied heavily on Dr Oettle’s evidence. The jury was entitled to take the view that the evidence of Dr Duflou did not cause it to have a reasonable doubt. They may have thought that the various alternative possibilities he raised were unrealistic in the circumstances of this case.
It was reasonably open to the jury to accept the medical evidence relied upon by the Crown and in conjunction with the other acceptable evidence, especially those parts of the evidence of Mr K Craft which it accepted, to be satisfied beyond reasonable doubt of the guilt of the appellant.
I would reject the first ground of appeal.
I agree with what Ipp JA has written on the second and third grounds of appeal.
I would dismiss the appeal against conviction.
I turn to the Crown appeal against sentence. This must be determined on the basis of the facts found by the trial judge. The Crown stressed the denunciatory role of sentencing, the high value which is rightly placed upon human life and the gravity of the crime of manslaughter. The Crown acknowledged that manslaughter covers a wide variety of penal consequences. The Crown did not suggest that the judge had made any identifiable error of law or fact. The Crown case was that the sentence was so inadequate that it bespoke error. The Crown submitted that a sentence falling short of fulltime custody failed to provide specific and general deterrence, failed to express the community’s denunciation of such conduct and failed to recognize the seriousness of unlawfully taking human life. The judge gave weight to these factors.
The facts of the case were unusual. There was a single punch, the reason for which is unexplained. It may not have been intended for the deceased. A sentence of three years imprisonment was well within the sound exercise of the judge’s sentencing discretion. Similarly it was within that discretion to order that the sentence be served by periodic detention with a non-parole period of two years three months. The reasons given by the judge for the sentence imposed evince no error. They were sound.
The Crown appeal against sentence should be dismissed.

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LAST UPDATED: 23/05/2003