O'Driscoll v The State of Western Australia - [2011] WASCA 175

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: O'DRISCOLL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 175

CORAM: MARTIN CJ
PULLIN JA
HALL J

HEARD: 10 JUNE 2011

DELIVERED : 10 AUGUST 2011

FILE NO/S: CACR 13 of 2010

BETWEEN: MALCOLM PATRICK O'DRISCOLL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HEENAN J
Citation  :THE STATE OF WESTERN AUSTRALIA v O'DRISCOLL
File No  :INS 179 of 2007

Catchwords:

Criminal law - Appeal - Miscarriage of justice - Misdirection or non-direction - Whether trail judge failed to put a cause of death exculpatory of the accused to the jury - Turns on own facts

Criminal law - Evidence - Hearsay - Relationship evidence - Whether trial judge wrongly admitted evidence relevant to the relationship between the accused and the deceased

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

Application for extension of time in which to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr J McGrath

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Evans v The State of Western Australia [2010] WASCA 34
Ferris v The State of Western Australia [2009] WASCA 54
House v The King [1936] HCA 40; (1936) 55 CLR 499
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
R v Christie [2003] WASC 151
Robertson v The State of Western Australia [2009] WASCA 83
T (A Child) v The Queen (1998) 20 WAR 130
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334
Wimbridge v The State of Western Australia [2009] WASCA 196

MARTIN CJ: Mr Malcolm O'Driscoll applies for an extension of time within which to appeal from his conviction of wilfully murdering Ms Esther Hall on 20 May 2007. The extension of time sought is in the order of 15 months and some explanation for the delay in commencement of the appeal has been provided. However, because of the public interest in the finality of criminal proceedings, in the absence of exceptional circumstances an extension of time will only be granted if there will be a miscarriage of justice if an extension is not granted: see Robertson v The State of Western Australia [2009] WASCA 83 [9]; Wimbridge v The State of Western Australia [2009] WASCA 196 [20]. For the reasons which follow, I do not consider that there would be any miscarriage of justice if the application for an extension of time is denied, and I would dismiss the application.

The issues at trial

At about 7.30 o'clock on the morning of Sunday, 20 May 2007, Mr O'Driscoll called an ambulance to attend a unit at Brownley Towers in Bentley, where he had been living in a de facto relationship with Ms Hall. When the ambulance officers arrived about 10 minutes later, they found Mr O'Driscoll in the bedroom of the unit apparently performing cardio‑pulmonary resuscitation on Ms Hall. The ambulance officers examined Ms Hall and were unable to detect any vital signs.
The police were called and Mr O'Driscoll was taken into custody. He was taken to the Kensington police station where he made a written statement concerning the circumstances leading up to the death of Ms Hall.
In that statement, which Mr O'Driscoll signed, he asserted that during the evening of 19 May 2007 he and Ms Hall were in the lounge room of their unit having a few drinks, listening to music and dancing. He asserted that he was 'showing her a few moves', and that they had been dancing for about an hour.
According to Mr O'Driscoll's written statement, Ms Hall told him that she wanted to dress up 'to show how sexy she was', and she went into the bedroom, inferentially to change her clothes.
According to his statement, he heard a choking sound coming from the bedroom during which Ms Hall tried to call his name. He then ran into the bedroom to find her standing adjacent to the bed, squeezing her throat with both hands, causing herself to choke. She then fell onto the ground and onto her back. According to Mr O'Driscoll's statement, he started to give her cardio‑pulmonary resuscitation and was pumping her chest and blowing air into her mouth. According to his statement:
She came good and she looked at [sic] and said 'I love you Malcolm'. 'I said, 'Baby I love you too. Come on baby wake up' (WAB 3).
According to Mr O'Driscoll's statement, he went into the lounge room and called the ambulance, leaving her on the floor. However, he heard her call his first name again, after which he returned to the bedroom and discovered that Ms Hall was not breathing and her face was turning blue. According to his statement, he continued his attempts to resuscitate her until the ambulance arrived.
Later that morning, Mr O'Driscoll participated in a video‑recorded interview with police. In the course of that interview he reiterated the version of events which he had provided in the written statement which he had signed.
In the course of the interview, Mr O'Driscoll asserted that he and Ms Hall had been living together for five months. He also stated that while they had many arguments, their arguments never became physical.
During the afternoon of the following day, 21 May 2007, Mr O'Driscoll participated in a further video‑recorded interview with police at Kensington police station. He reiterated the version of events he had given on two previous occasions, which included his assertion that the last words used by the deceased were, 'I love you Malcolm'.
During the course of this interview, Mr O'Driscoll described his relationship with Ms Hall as, 'Actually pretty good because we were happy you know being together,' although when asked if they argued, he replied that 'everybody argues, you know'.
During this interview, Mr O'Driscoll was also questioned in relation to the apparent inconsistency between his assertion that these events took place during the late evening or very early morning, whereas the ambulance was not called until approximately 7.30 am. Questions were also directed to Mr O'Driscoll based on the preliminary pathological report, which showed Ms Hall had suffered bruising and injuries to her throat which were consistent with her having been strangled to death.
Mr O'Driscoll was again asked about his relationship with Ms Hall. The following interchange took place:
Q.While we're on - now have you been violent towards Ester [sic: Esther] before?
A.Oh we always have arguments.
Q.I'm not talking about arguments.
A.But not hitting.
Q.You've not hit her, you've not bruised her?
A.No, no not hitting, no. Like that here and I went like that once.
Q.So you have hit her?
A.It was a long time. Oh like that.
Q.Okay. In the four months that you've been living together?
A.Was an argument, yeah. We were having a argument and - because she's very jealous you know.
Q.So she hasn't gone to the doctors complaining and displaying bruising that you've caused?
A.No, no, no .
Q.To your knowledge?
A.No, no because we all got - we got to (indistinct) together you know so no. No nothing of that sort.
Q.So other than ordinary arguments in a marital relationship, have you been otherwise violent towards her? Have you been violent towards her in such a way in that which you would seek advice from somebody else?
A.Yeah she's - well we had arguments and she left the unit. She went - - -
Q.Did she tell you that she's frightened of you?
A.Ah, (indistinct) she says that all the time you know.
Q.Well why would she say that if you were in a loving relationship?
A.Because she said something when you get angry you know sort of - I'm afraid of you. That's about it.
Q.Yeah is that because you hit her?
A.Hey?
Q.Is that because you hit her?
A.Tapped her on the head once. That's all. Once I tapped her on the head. Stop screaming you know because the people you know - the flats.
Q.They're listening yeah. They'll hear.
A.I said no come on, stop shouting you know because sometimes when she starts ‑ ‑ ‑
Q.So have you bruised her before then?
A.No bruises, never.
Q.No bruises?
A.Never, never.
Q.You really sure about that?
A. Oh yeah because I only hit her like this once (WAB 61 ‑ 62).
In a later portion of the interview, Mr O'Driscoll stated that Ms Hall was a jealous person, and this had resulted in arguments and nagging, but he had 'learnt to not let her get under my skin'. When it was put to Mr O'Driscoll that they were arguing on the night Ms Hall met her death, Mr O'Driscoll reiterated that they were enjoying themselves, drinking and dancing, and that Ms Hall had gone into the bedroom to change 'to dress up you know because she loves dancing that girl'.
The written statement made by Mr O'Driscoll, and edited versions of each recorded interview were tendered in evidence without objection.

The prosecution case

The prosecution case, presented in opening, was that the version of events given by Mr O'Driscoll to police was a concoction with a fatal flaw in that there would be medical evidence presented to the effect that it is impossible to strangle oneself using only one's own hands. The prosecution also relied upon a confession of guilt made to a fellow prisoner at the remand centre shortly following Mr O'Driscoll's arrest.
The prosecution also opened on the basis that evidence would be adduced from other occupants of Brownley Towers to the effect that Mr O'Driscoll had appeared agitated on the evening in question, and that yelling noises had been heard coming from the apartment occupied by Mr O'Driscoll and Ms Hall.
The prosecution opened the case on the basis that the accused had painted a picture of a loving relationship with Ms Hall in his statements to police which did not reflect the true position. The prosecutor identified a number of witnesses who would be called to establish that Ms Hall had shown people injuries which she attributed to the accused, and that Ms Hall had been counselled to separate from Mr O'Driscoll, which she had done on three occasions over the period of five months they had been living together. That evidence was to be led to establish that the relationship between Mr O'Driscoll and Ms Hall was not as Mr O'Driscoll had asserted in his statements to police but was in fact very troubled.
The evidence led by the prosecution as to the true state of the relationship between Ms Hall and Mr O'Driscoll is at the heart of the first ground of appeal. I will refer to that evidence in greater detail when considering that ground.
The prosecution led evidence from a forensic pathologist, Dr Clive Cooke, whose evidence, in very general terms, was to the effect that the injuries suffered by Ms Hall were consistent with manual strangulation. His evidence was also to the effect that it is not possible for a person to strangle themselves in the manner described by Mr O'Driscoll, because once consciousness is lost, the muscles in the hands applying force to the neck would relax, with the result that blood flow would be restored and consciousness regained. Because the second ground of appeal focuses upon the evidence of Dr Cooke, it will be necessary to return to his evidence in more detail when consideration is given to that ground.
Mr O'Driscoll gave evidence. His evidence was that he had been in a de facto relationship with Ms Hall since January 2007. He denied that he had ever been violent towards Ms Hall, although he admitted that on one occasion he 'tapped her on the head … just once lightly … that's it' (ts 449). When asked by his counsel to comment on the evidence that had been given as part of the prosecution case relating to bruising on the legs of Ms Hall which she asserted that he had caused, Mr O'Driscoll stated that she had probably received that bruising from her ex boyfriend who lived just above Mr O'Driscoll. Mr O'Driscoll emphatically denied causing any such bruises.
Mr O'Driscoll denied that he had argued with Ms Hall during the evening in question. He reiterated in his evidence the version of events which he had given to police to the effect that he and Ms Hall were having an enjoyable time drinking and dancing. In the course of his evidence he said that during the evening they had discussed getting married on Ms Hall's birthday, which was on 15 July.
Mr O'Driscoll testified that Ms Hall went into the bedroom, after which he thought he might have dropped off to sleep, until he heard her calling his name. Mr O'Driscoll stated that after he entered the bedroom, the events which he had described in his statements to police transpired, except that in the course of his evidence he stated that he must have dropped off to sleep after attempting to resuscitate Ms Hall. This evidence, if accepted, might have gone some way to overcoming the temporal discrepancy in the statements he made to the police.
During his evidence‑in‑chief, Mr O'Driscoll was asked by his counsel about the occasions upon which Ms Hall had separated from him. He denied that her leaving his home and presenting herself to a women's refuge was because he had acted violently towards her, although he accepted that they had argued.

Ground 1 - the admissibility of the relationship evidence

Ground 1 asserts that there was a miscarriage of justice as a result of the erroneous admission of evidence relating to the relationship between Ms Hall and Mr O'Driscoll, including evidence of statements made by Ms Hall which were said to provide evidence of the nature of their relationship. Before turning to the particular evidence to which objection is now taken, it is appropriate to set out the principles which govern the admissibility of evidence of this kind. As the prosecution relied at trial, and in argument on the appeal, only upon the common law principles governing the admissibility of such evidence, it is unnecessary to consider the extent to which the impugned evidence might also be admissible by virtue of s 31A of the Evidence Act1906 (WA) which augments the circumstances in which such evidence can be admitted: see Ferris v The State of Western Australia [2009] WASCA 54 [62] ‑ [63].
In Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, the appellant was convicted of the murder of his wife by shooting her in the back of the head. A critical issue at trial was whether she was deliberately shot or whether the gun had discharged by accident. The Crown led evidence that the deceased said to the accused, in the presence of other witnesses, 'I know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. These statements were admitted by the trial judge, subject to a direction that the jury should not treat them as evidence of the state of mind of the accused. On appeal, relevantly, the appellant contended that the statements were wrongly admitted or that, in the alternative, if they were admissible, they should have been excluded by the trial judge in the exercise of the discretion to exclude evidence the probative value of which is outweighed by its potential to prejudice the accused.
The High Court unanimously held that the statements were admissible and that the trial judge had not erred in failing to exclude them in the exercise of his discretion. On the question of their admissibility Barwick CJ observed that '[t]he fundamental rule governing the admissibility of evidence is that it be relevant': Wilson (337). His Honour then went on to say:
It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility (337).
…
It may at once be conceded that, if the statement attributed to the deceased had not been part of the evidence of a quarrel of a significant kind, the statement of her opinion of the applicant's attitude or intention towards her would have been inadmissible. cf. Reg. v. Bedingfield. But in this case the evidence of the statement was part of the evidence of a quarrel between the parties and, indeed, the words spoken in the course of that quarrel were indicative of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached. It is impossible, in my opinion, to maintain the proposition that though the fact of quarrelling may be admissible, the primary evidence of the quarrelling, namely the words and gestures passing between the parties in the course of the quarrel, may not. Of course, care must be taken by appropriate directions to the jury to properly confine their use of such statements. Here the trial judge took adequate precautions in that behalf. In my opinion, the evidence of what the deceased said in the course of these quarrels between herself and the applicant was admissible (339 ‑ 340). (footnotes omitted)
Menzies J, with whom McTiernan and Walsh JJ agreed, expressed a similar view in the following passage of his reasons:
Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide (344).
Owen J came to a similar conclusion:
… I have no doubt that the evidence of the relationship between the wife and the applicant was relevant in considering whether the former's death was due, as the applicant claimed, to an accidental discharge of the gun or whether, as the Crown alleged, it was due to his deliberate act (346).
In Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, the High Court addressed the interplay between this principle and the rule against the admission of hearsay evidence. In that case the appellant was convicted of the murder of his wife. Evidence had been led from a number of witnesses to the effect that the deceased had said that she was going to meet her husband on the day she died. This evidence was admitted at first instance, subject to a direction by the trial judge that it was not to be treated as evidence that the deceased actually met the accused. On appeal to the High Court, Mason CJ and Wilson, Dawson and Toohey JJ held that the evidence was admissible because it was conduct of the deceased which gave rise to an inference as to her state of mind.

Wilson, Dawson and Toohey JJ discussed the manner in which the state of mind of a person might be proven by admissible evidence:
When a person's state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred. But it might also take the form of statements made by the person or by another from which a similar inference might be made. An example of statements made by another being admissible in evidence upon this basis is to be found in Subramaniam v. Public Prosecutor, a case in which the appellant was convicted in Malaya of being illegally in possession of ammunition. His defence was that he had been captured by terrorists and was at all times acting under duress. It was held by the Privy Council that the trial judge was in error in ruling out, as hearsay, evidence of a conversation between the terrorists and the appellant. The evidence was admissible, not to prove the truth of any statements made by the terrorists, but as bearing upon the state of mind of the appellant. As was observed:
'The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.'
The evidence excluded in that case was, therefore, admissible (300 ‑ 301). (footnotes omitted)
Their Honours then addressed the distinction between circumstances in which evidence of the state of mind of a person might not involve an element of hearsay and circumstances in which it would:
It may be true in some cases to say that statements made by a person indicating his state of mind involve no element of hearsay. For example, in Hughes v National Trustees, Executors and Agency Co. of Australasia Ltd evidence of statements by a testatrix about her son's misconduct was held to be admissible to prove her state of mind when making her will, but not to prove that the misconduct actually occurred because:
'Such statements are not evidence of the facts they assert: they provide evidence only of the subjective attitude or beliefs of the testator or testatrix. (per Barwick CJ)'
But in other cases a person's statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them. To that extent an element of hearsay may be said to be present. This case is an example. But the element of hearsay need not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted. The distinction between the two approaches is one which can be fine, but it is one which in principle ought to be drawn (302 ‑ 303). (footnotes omitted)
These issues were considered by the Full Court of this court in T (A Child) v The Queen (1998) 20 WAR 130. In that case, the appellant was convicted of the wilful murder of a young woman with whom he was living. Evidence was led of the turbulent nature of the relationship between the deceased and the accused, including evidence of the times at which they had separated and evidence of statements made by the deceased which bore upon the nature of their relationship. The evidence was admitted by the trial judge, over objection on the ground of hearsay, on the basis that the statements made by the deceased were not to be received as evidence going to the truth of the facts asserted, but as evidence going to her state of mind, and of her relationship with the accused. The admissibility of the evidence was challenged on appeal. Ipp J observed:
In a trial of wilful murder, where the victim has been killed by a person with whom he or she has had some emotional or physical or otherwise intimate relationship, evidence as to the nature of that relationship is ordinarily admissible in evidence (141).
On the subject of the interplay between the reception of evidence of this character, and the rule against hearsay, Ipp J reviewed the decision in Walton and observed:
As I understand what their Honours were saying, a distinction must be drawn between what may be described as a direct assertion as to a person's state of mind, and a statement (i.e. conduct) from which an inference may be drawn. Thus, evidence that the day before the deceased was killed she said to another witness, in the absence of the appellant, 'I intend to leave Troy', would be hearsay evidence of her intention, and could not be relied on testimonially for that purpose. If this evidence were tendered to prove that the deceased in fact intended to leave the appellant, it would be infected with every difficulty attendant on hearsay evidence in general, and would not be admissible. On the other hand, those words contain an implied assertion that there were difficulties in her relationship with the appellant. That inference does not depend on the contents of the statement by the deceased being true, but arises from her conduct in speaking the words in question, and the evidence may be admissible on this basis. As the majority in Walton pointed out, the admission of evidence of that kind might involve a reliance, to some extent, upon the truth of an assertion (namely, that the deceased intended to leave the appellant) and 'to that extent an element of hearsay may be said to be present'. But that element of hearsay need not necessarily preclude that evidence 'being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted'. Thus that evidence might be relied on as conduct proving that there are difficulties in the relationship (but not that the deceased intended to leave the appellant). Its admissibility, however, would depend on the degree to which the evidence would be relevant, and the extent of the prejudice to the appellant in admitting the evidence with its element of hearsay (143).
Ipp J applied this analysis to the impugned evidence, but intermingled the question of whether the prejudicial value of the evidence outweighed its probative value. On that basis, he concluded that much of the evidence should not have been admitted.
However, Pidgeon J, with whom White J agreed on this issue, held that all the evidence was admissible because it was relevant to the relationship between the appellant and the deceased at the time leading up to the offence. Pidgeon J held that the trial judge had not erred in admitting evidence of violence inflicted by the appellant on the deceased some twelve months before the offence, but that this was 'reaching the borderline' (134).
As to the objection on the ground of hearsay, Pidgeon J observed:
I would see the effect of her Honour's reasons as admitting the evidence on the basis that it was relevant to relationship and it was on this basis that she directed the jury. I would see the relationship as being relevant with the issues before the jury. This would follow from Wilson v The Queen (1970) 123 CLR 334. The purpose of this evidence was not to prove the facts stated, but to prove the relationship and her Honour gave a careful direction to the jury that this is the purpose for which the evidence must be used. In these circumstances I do not consider any of the evidence could be regarded as hearsay.
I would see the case of Walton v The Queen (1989) 166 CLR 283 at 302 as being a different situation. That was not a case where a relationship was being inferred from the fact that statements were made. The Crown was seeking to adduce evidence to show that the deceased intended to meet the accused. The statements to that effect were tendered for the purpose of showing her state of mind when she left the house. Her intention at that time was relevant because it might be inferred that she acted in accordance with her intention. It was in this context that the majority said there were cases where a person's statements about his state of mind will only have probative value if they are truthful and accurate, and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them. To that extent an element of hearsay may be said to be present. In the present case the jury was not being asked to rely on the truth and accuracy of what was said. The fact that the statement was made was the evidence being relied on to show the relationship. In these circumstances I would not see an element of hearsay (133).
White J noted pithily:
The evidence of what had been said by the deceased was admitted, not to prove the truth of her statements, but to prove that the statements were made, from which an inference might be drawn as to the nature of the relationship between the appellant and the deceased. That was a legitimate reason for the admission of the evidence in question and in the result that evidence was not hearsay: Ratten v The Queen[1972] AC 378 (149).
It can be seen that Ipp J took the view that the admissibility of this kind of evidence depended upon balancing its potential relevance and probative value against the potential prejudice to the accused, whereas, on the other hand, Pidgeon and White JJ appeared to take the approach that, following Wilson, admissibility depended solely on relevance, and that the potential prejudice to the accused was a separate issue which went to the discretion of the judge to exclude the evidence, notwithstanding it was admissible. This apparent difference in approach was noted by Roberts‑Smith J in R v Christie [2003] WASC 151 [33].
However, in Evans v The State of Western Australia [2010] WASCA 34, Wheeler JA, with whom McLure P and Owen JA agreed, cited the passage from the reasons of Ipp J set above as providing the correct test for the admissibility of this kind of evidence and expressly followed his Honours approach of balancing the degree of relevance against the degree of prejudice caused: Evans [75] ‑ [76]. Their Honours view was that Pidgeon and White JJ had agreed broadly with these principles:
Pidgeon and White JJ in that case took a different view of the admissibility of particular items of evidence, but I understand their Honours to have agreed, broadly, with the principles as explained by Ipp J. Those principles were also held to justify the admission of evidence of statements made by the deceased that T had behaved violently towards her.
Ipp J noted in T (a child) that when determining the admissibility of this kind of testimony, the prejudice arising out of the hearsay element will have to be balanced against the degree to which such evidence would otherwise be relevant [75] ‑ [76].
An approach by which the prejudicial effect of this type of evidence is considered to be a matter going to its admissibility, rather than to the discretion of the trial judge to exclude it, is significant because it has the effect of broadening the potential scope for successful appeal: see House v The King[1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). This approach is consistent with more recent High Court authority in the similar context of propensity evidence. For example, in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, McHugh J observed:
Having regard to the recent decisions in this Court, the prejudicial effect of the evidence must be regarded as going to the issue of admissibility. In Sutton, Dawson J thought that the trial judge retained a discretion to reject the evidence even if its probative value outweighed or transcended its prejudicial effect. But his Honour went on to express the view that he found it difficult to envisage circumstances that could call for the exercise of the discretion. In my opinion, once it is accepted that the prejudicial effect of the evidence is a matter going to admissibility, no scope remains for the exercise of the discretion to reject probative evidence in criminal trials on the ground that it is unduly prejudicial to the accused (515). (footnotes omitted)
For the purposes of this appeal it is not necessary to resolve this apparent inconsistency in the approach taken in the authorities to which I have referred because, for reasons which I will develop, whatever approach is taken, the evidence which was impugned on appeal was properly admitted.

The impugned evidence

On behalf of Mr O'Driscoll it is submitted that the following evidence should not have been admitted, and that its submission resulted in a miscarriage of justice.

Ms Lorraine O'Driscoll

Ms Lorraine O'Driscoll is the ex wife of Mr O'Driscoll. They divorced in 1991. Since their divorce, Ms O'Driscoll had no contact with Mr O'Driscoll, but she did become friendly with Ms Hall. Through that friendship she became aware that Ms Hall had entered into a relationship with Mr O'Driscoll.
Evidence was led from Ms O'Driscoll to the effect that Ms Hall advised her that 'the relationship was up and down sort of thing' (ts 200). No objection was taken to that evidence. However, after it was led, the trial judge, in the absence of the jury, expressed concern with respect to the hearsay nature of the evidence which had been led, and which was foreshadowed in the deposition contained with the prosecution brief. The prosecutor advised the trial judge that the evidence was not being led to establish the truth of the facts asserted by the deceased, but as evidence which went to the character of the relationship between Ms Hall and Mr O'Driscoll. Following a lengthy interchange between the trial judge and the prosecutor, the trial judge sought the views of defence counsel, and in particular asked whether there was any objection to the evidence foreshadowed in the deposition. Counsel on behalf of Mr O'Driscoll initially advised that there was no objection, but after an adjournment which was requested in order to obtain instructions, objection was made to evidence of a statement by the deceased to the effect that bruising which she had shown to Ms O'Driscoll was caused by Mr O'Driscoll kicking her. The trial judge upheld the objection on the ground that the evidence was hearsay, and on the further ground that its prejudicial value outweighed its probative value (ts 213 ‑ 214).
Following that ruling, counsel for Mr O'Driscoll drew attention to other evidence within the prosecution brief which she asserted was of the same character including, in particular, aspects of the evidence to be given by Ms Marcene Trill. However, after hearing submissions from counsel, the trial judge ruled that evidence to be admissible (ts 233). Objection was also taken to evidence of Ms Hall presenting at a women's refuge, and of the statements she made at the time of presentation. The trial judge overruled that objection on the basis that the evidence was relevant to the state of the relationship between Ms Hall and Mr O'Driscoll (ts 234).
Following those rulings, evidence was led from Ms O'Driscoll to the effect that approximately four weeks before Ms Hall's death, she visited Ms O'Driscoll and showed her bruises on her left thigh. Because of the ruling made by the trial judge, Ms O'Driscoll was not asked what Ms Hall had said about the cause of the bruises.
Evidence was also led from Ms O'Driscoll to the effect that about two weeks prior to Ms Hall's death, she came to Ms O'Driscoll's house at 2 o'clock in the morning when she said, 'I've made a mistake, I've made a mistake'. Ms O'Driscoll described Ms Hall as being distressed. She also stated that Ms Hall had visited her a couple of times before 'when she had problems'. Ms O'Driscoll also gave evidence of an occasion upon which Ms Hall had visited her to get some photos when she said that Mr O'Driscoll had threatened to throw her off the balcony.

Ms Marcene Trill

Ms Trill gave evidence that during the course of a New Year's eve function on 31 December 2006 she observed that Ms Hall had bruising and a black eye which she attributed to 'her partner', after which Ms Trill 'told her to get out of there' (ts 244). According to Ms Trill, she observed bruising on both wrists, the upper arm and shoulder, and also on one thigh. According to Ms Trill, Ms Hall stated that 'Malcolm' had caused those injuries, and that she was scared of him.
Ms Trill gave evidence that on three separate occasions at karaoke nights at Brownley Towers (which nights were held monthly), she observed bruising on Ms Hall. Ms Trill also gave evidence that during a lunch that was held over the Easter weekend, Ms Hall told her that she was scared of Mr O'Driscoll. Ms Trill stated that on that occasion she also observed bruising on Ms Hall's wrists and upper arms. Ms Trill also gave evidence that Ms Hall had told her that she was too scared to dance with anybody other than Mr O'Driscoll because 'he was over‑possessive of her' (ts 247).

Ms Mavis Steenson

Ms Steenson worked as a social worker at a women's refuge and in that capacity had access to the records of the refuge. From those records, Ms Steenson gave evidence to the effect that Ms Hall contacted the refuge by telephone on 20 April 2007. Evidence was led of the notation in the records maintained by the refuge to the effect that Ms Hall had complained of domestic violence and had advised that she was homeless, having been sleeping under the Causeway bridge as a result of ongoing abuse by her partner.
The records also revealed that following the telephone call, Ms Hall presented herself to the refuge. The record taken at the time of her presentation was to the effect that she had been forced to leave home because her boyfriend was physically and verbally abusive, with the result that, on occasions, she had to flee to nearby parks. According to the record, Ms Hall had reported her boyfriend's violence to Bentley police, but had never taken out a violence restraining order. The record taken was to the effect that her boyfriend was Mr O'Driscoll. The records maintained by the refuge showed that Ms Hall stayed there for three days.
The records maintained by the refuge also showed that Ms Hall presented again to the refuge on 11 May 2007, complaining of domestic violence. According to the note of her statements upon presentation, she stated that she had made a mistake in returning home, and that nothing had changed. According to the note, Ms Hall had been dealing with a legal centre in an attempt to negotiate with Homeswest in order to obtain another unit. Again, the records maintained by the refuge recorded Ms Hall's partner at Mr O'Driscoll. According to the records maintained by the refuge, Ms Hall stayed at the refuge for three days on this occasion as well.
Ms Steenson was not cross‑examined.

Ms Erica Head

Ms Erica Head was a resident of Brownley Towers in the months preceding Ms Hall's death. Ms Head gave evidence to the effect that on about five occasions Ms Hall had come to her and said that she was upset in her relationship with Mr O'Driscoll, and that he hurt her, pulled her hair and hit her (ts 117). Ms Head also gave evidence that during the afternoon of 19 May 2007, she saw Ms Hall at Brownley Towers crying, when she said, 'He's hurt me again'. Ms Head also gave evidence that later that evening, she heard yelling and screaming coming from the flat which Ms Hall shared with Mr O'Driscoll. She went to the flat to see if Ms Hall was all right, to be advised by Ms Hall that she was okay.
In cross‑examination Ms Head was asked about a statement she had made to police in which she referred to an incident about one month before Ms Hall died, when Ms Hall came to see her complaining that 'Malcolm had pulled her hair after having an argument'. Ms Head confirmed the accuracy of the statement.

In cross‑examination, Ms Head conceded that during the evening before Ms Hall died, the noise she had heard, and which caused her to go to the flat which Ms Hall and Mr O'Driscoll occupied, was in fact coming from another apartment, and that Ms Hall and Mr O'Driscoll seemed happy that evening (ts 132).

Ms Angela Preedy

Ms Preedy is a police officer who was stationed at Kensington Police Station during 2007. She gave evidence to the effect that on 22 February 2007, as a result of information she received, she attended Brownley Towers where she met Ms Hall in the carpark. She was told by Ms Hall that she was leaving Mr O'Driscoll, who was not happy about that, and as a consequence had taken too many tablets and was drinking heavily. Police attended the apartment occupied by Ms Hall and Mr O'Driscoll where Ms Hall asked them to assist her to remove a television and other belongings. Ms Preedy accompanied Ms Hall to the carpark with her belongings where they waited for a taxi. Ms Preedy gave evidence to the effect that during the time while they were waiting for the taxi, Ms Hall told her that she was leaving Mr O'Driscoll because he was a violent man (ts 193 ‑ 194).
Ms Preedy was not cross-examined.

The directions to the jury

The trial judge gave clear and unequivocal directions to the jury as to the limited use which could be made of the evidence to which I have referred, both generally and specifically in the course of his remarks about particular portions of the evidence. The general direction given to the jury as to the use they could make of the relationship evidence was in the following terms:
This brings me to another quality of evidence. This is what Ms Petrusa has been talking about as relationship evidence. This is the evidence from various witnesses, who will be identified in more detail as I go on, that Esther Hall had spoken to them and shown bruises, had said that she was mistaken, had on occasions said that the accused, Malcolm, had hit her or been violent to her and had given explanations to Lorraine O'Driscoll, the first wife of the accused who had become a friend, that she was mistaken and that Malcolm had threatened to throw her over a rail.
Then there is the evidence that you heard from the lady from the refuge about explanations which had been given as to why she went to the refuge and what she was attempting to avoid.
There are two components to this evidence which I must take some trouble to explain to you. That evidence will certainly tell you something about the state of mind of Ms Hall at the time she made the statements. It tends to establish that she was dissatisfied with her relationship, that she was hostile or in fear and that the relationship with Mr O'Driscoll was anything but ideal, pleasant, loving or comforting.
It is only for that reason that the prosecution has been permitted to adduce this evidence or to rely on it, to show that from the deceased woman's point of view the relationship was not good.
What is another way of looking at the evidence? Another way of looking at the evidence is to treat what these people said Ms Hall said or showed to them as being true - that she had been beaten by the accused; that he had inflicted the blows; that it was his conduct which had caused her to seek the refuge. Only Ms Hall could give that evidence and sadly she is not here to give that evidence. Other people telling us what she said to them in that regard is hearsay evidence and it is not admissible to prove the truth of what she related to those persons.
This is accepted and acknowledged by the prosecution in this case and this morning Ms Petrusa expressly said to you that the State does not rely on any of that evidence to prove that the accused person did any of the things which these third persons said Ms Hall related to them, so although it may be difficult for you to maintain this distinction, I must direct you as a matter of law that you cannot rely on that character of evidence as proof or any evidence for that matter that Mr O'Driscoll did the things which appear to be the basis of the complaints made by Ms Hall.
The only use which can be made of this evidence, and this is a matter of law upon which I direct you and which you must accept, is what it shows about the relationship between the two parties leading up to this event and that from Ms Hall's point of view the relationship was far less than satisfactory. That has a bearing on what conclusions you draw about the accused's explanation that they were having a happy evening together, dancing and drinking and socialising in the unit as he has described; but I stress to you that that is the only use which may be made of that evidence and that it cannot be used to conclude that Mr O'Driscoll did any of the things which were related by these thirds persons. It is evidence of dissatisfaction by Ms Hall and perhaps disappointment or hostility towards Mr O'Driscoll, but that is all (ts 589 ‑ 590).
In addition, when reviewing specific aspects of the evidence, the trial judge repeated the direction as to the limited use which could be made of the relationship evidence. For example, when referring to Ms Trill's evidence to the effect that Ms Hall had stated that her bruises were caused by Mr O'Driscoll, his Honour directed the jury:
Now I must warn you again that this is not evidence that Malcolm did any of these things. It is only evidence at the most that the deceased Esther Hall was expressing dissatisfaction about her relationship with O'Driscoll (ts 605) (see also ts 606).
In relation to Ms Steenson's evidence, after reviewing that evidence, his Honour directed the jury:
Again I have to indicate to you that none of this is proof that Mr O'Driscoll mistreated Hall, as the records might have suggested. It rather does indicate however that Ms Hall had serious misgivings about the relationship and was driven to leave for those periods (ts 607).

The arguments on appeal

A number of arguments were advanced in support of the proposition that the admission of the evidence to which I have referred resulted in a miscarriage of justice.
First, it was asserted that the evidence was inadmissible because it was hearsay. That assertion must be rejected. The evidence of the statements made by Ms Hall to the effect that she had been assaulted by Mr O'Driscoll was not led by the prosecution to prove the truth of those statements, or that Mr O'Driscoll was a violent man. Rather, the evidence was led to establish Ms Hall's state of mind, from which the jury might draw an inference as to the nature of her relationship with Mr O'Driscoll. It seems clear that the prosecutor did not rely upon the evidence as establishing the facts asserted by Ms Hall, and the trial judge expressly directed the jury, on a number of occasions as to the limited use which could be made of the evidence, and in particular, that it was not to be treated as evidence of the facts asserted by Ms Hall. The fact that Ms Hall attributed her injuries to Mr O'Driscoll's assaults upon her, and that she stated he had threatened her, and that she had separated from him on a number of occasions was all evidence of her attitude towards Mr O'Driscoll, from which the jury could legitimately draw an inference as to the nature of their relationship. The jury's assessment of the relationship between Ms Hall and Mr O'Driscoll was a critical aspect of the case, not only because of the circumstances in which Ms Hall met her death, but also because of the statements made by Mr O'Driscoll to police, and in evidence, as to both the general nature of their relationship, and in particular of the happy circumstances which immediately preceded the death of Ms Hall.
Next it is asserted that the evidence should have been rejected because its probative value was significantly outweighed by its prejudicial character. In this context it was asserted that the evidence was of marginal relevance and of extremely limited value. These assertions must also be rejected.
As I have already observed, given the circumstances in which Ms Hall met her death, and given the statements made by Mr O'Driscoll to police about those circumstances and the general nature of his relationship with Ms Hall, the jury's assessment of the nature of the relationship between Ms Hall and Mr O'Driscoll was a central feature of the case. Evidence which bore upon the nature of that relationship was therefore directly relevant to the issues which the jury was required to determine. The probative value of the evidence arose from the insight which it provided as to the true nature of the relationship between Ms Hall and Mr O'Driscoll. The fact that the evidence might have been used by the jury to conclude that Mr O'Driscoll had not correctly described his relationship with Ms Hall in his statements to police does not amount to prejudice of the kind which would justify rejection of the evidence but reinforces its probative value. Mr O'Driscoll could have suffered prejudice as a result of the admission of the evidence if the jury had regarded it as evidence of the facts asserted by Ms Hall, and used that evidence to conclude that Mr O'Driscoll was predisposed to violence. However, the prosecution expressly eschewed reliance upon the evidence for that purpose, and the jury was expressly directed that the evidence could not be used for that purpose by the trial judge. Accordingly, the prospect of prejudice or that character was minimised.
Next it was asserted that the evidence was too remote in point of time to be admissible. In support of this submission it was argued that any evidence of statements made by Ms Hall any earlier than one or two weeks prior to her death was too remote in point of time to be admissible. These submissions must also be rejected. The relationship between Ms Hall and Mr O'Driscoll was relatively short in duration - in the order of five months or so. The evidence that was adduced spanned the entire period of the relationship. This heightened rather than reduced its probative value, especially given the statements made by Mr O'Driscoll to police which also spanned the period of his relationship with Ms Hall. While there may be a point in time at which evidence of statements made out of court will be so distant from the relevant circumstances as to shed no meaningful light upon the nature of the relationship at the relevant time, that point in time is certainly not one or two weeks, and was not reached in the present case. While it can readily be accepted that many intimate relationships will, over time, have their ups and downs, such that evidence of statements made by a party to the relationship at a time which is remote from the time at which the nature of the relationship falls to be assessed may have limited or no probative value, in the present case, the evidence spanned the entire period of a relatively short relationship and was directly relevant to the jury's assessment of the nature of that relationship at the time Ms Hall met her death.
Finally, there were a number of specific objections directed to specific portions of the evidence. I will deal with each in turn. In relation to the evidence given by Ms O'Driscoll, it is observed that there was no evidence adduced as to how Ms Hall suffered the bruises which she showed to Ms O'Driscoll about four weeks before her death. However, the absence of evidence as to the cause of the bruises was the direct consequence of the belated objection taken by counsel for Mr O'Driscoll, which was upheld by the trial judge. In my view, the trial judge was wrong to reject the evidence of Ms O'Driscoll to the effect that Ms Hall told her that the bruises were caused by Mr O'Driscoll kicking her, as the fact that Ms Hall made such a statement was admissible evidence of her relationship with Mr O'Driscoll. However, that error favoured the defence and was the consequence of the position adopted by defence counsel. It cannot now be relied upon to sustain a ground of appeal.
Next it is asserted that the evidence of Ms O'Driscoll to the effect that about two weeks prior to Ms Hall's death she came to her house at 2 o'clock in the morning saying 'I've made a mistake' was too vague to enable the jury to draw any conclusion from it that would be other than speculative. However, that evidence needs to be viewed in the context of other evidence given by Ms O'Driscoll to the effect that she had previously been visited by Ms Hall to discuss 'her problems' and that on another occasion Ms Hall had told her of Mr O'Driscoll's threat to throw her off the balcony. In that context, given the time of night at which the visit was made, it was open to the jury to infer that the mistake to which Ms Hall was referring was connected with her relationship with Mr O'Driscoll.
The evidence of Ms O'Driscoll to the effect that Ms Hall stated that Mr O'Driscoll had threatened to throw her off the balcony was specifically objected to on the basis that there was no other evidence that Mr O'Driscoll had previously threatened Ms Hall, nor was there any explanation from Ms Hall as to the context in which the threat was made. However, contrary to the submission, there was other evidence of Mr O'Driscoll assaulting Ms Hall, and the fact that Ms Hall did not provide Ms O'Driscoll with the context in which the threat was made does not deprive the statement made by Ms Hall of its probative value, insofar as it sheds light upon the nature of her relationship with Mr O'Driscoll.
In relation to the evidence of Ms Trill, objection is taken on the basis that the specific dates of the karaoke nights in question were not identified, nor was the date of the occasion upon which Ms Hall advised Ms Trill that Mr O'Driscoll was 'over possessive of her'. However, it was clear from the evidence as a whole that these events must have occurred at some point within the relatively short relationship between Ms Hall and Mr O'Driscoll, and the failure to identify the particular point in time at which these events occurred did not detract from their probative value.
In relation to the evidence of Ms Steenson, objection is taken on the basis that there was no evidence adduced as to why Ms Hall was homeless, or whether the abuse to which she referred in her initial conversation was physical or verbal abuse. These propositions cannot be accepted. The records maintained by the women's refuge to which Ms Hall presented would enable the jury to infer that at the time of presentation of the refuge, Ms Hall stated that she was homeless as a consequence of having to leave the apartment in which she was residing with Mr O'Driscoll as a result of his physical violence. As I have already observed more than once, the evidence was not led for the purpose of establishing the truth of the assertion of violence, but the fact that she presented to the refuge as a homeless person, and attributed that state to Mr O'Driscoll's violence, was evidence from which the jury could draw an appropriate inference as to the nature of the relationship between Ms Hall and Mr O'Driscoll. Points are also taken in the submissions filed on behalf of Mr O'Driscoll as to the lack of elaboration as to why Ms Hall had returned to live with Mr O'Driscoll after her first presentation to the women's refuge, and the lack of elaboration as to the recorded statement that 'nothing had changed'. However, the lack of detail does not lead to the conclusion that the evidence was incapable of sustaining an inference as to the nature of the relationship between Ms Hall and Mr O'Driscoll.
In relation to the evidence of Ms Head, specific objection is taken on the basis that Ms Head did not identify the particular dates upon which her conversations with Ms Hall took place. However, this objection must be rejected for the reasons already given. Objection is also taken to the lack of elaboration in relation to the statements made by Ms Hall to Ms Head concerning the arguments she had with Mr O'Driscoll, but this lack of detail does not deprive the evidence of any probative value. A similar objection was taken in relation to the evidence given by Ms Preedy which should be rejected for the reasons already given.
In summary, the evidence which has been impugned by ground 1 of the appeal, and which, generally speaking, was evidence of statements made by Ms Hall from which the jury might have drawn an inference as to the nature of her relationship with Mr O'Driscoll, was properly admitted. Ground 1 is without substance.

Ground 2

Ground 2 asserts a miscarriage of justice by reason of the failure of the trial judge to adequately leave to the jury a cause of death which was exculpatory of Mr O'Driscoll. The particulars given in support of the ground assert that the trial judge failed to adequately direct the jury with respect to the evidence concerning the possibility that a reflex cardiac arrest, or choking on a fractured thyroid cartilage may have caused the death of Ms Hall.
As the ground relies upon the evidence given by the forensic pathologist, Dr Clive Cooke, it is necessary to commence with an assessment of the relevant aspects of that evidence. Dr Cooke gave evidence of the abrasions and bruising which he observed upon the head and neck of the deceased in the course of the autopsy which he conducted. He also gave evidence of bruising which he observed on the arms and legs of the deceased.
Dr Cooke also gave evidence of his detailed examination of the neck and throat of the deceased. He observed internal bruising to the tissues of the neck (ts 364), internal bleeding into glands situated in the neck of the deceased (ts 365 ‑ 366), and into certain other areas of the neck (ts 366). Dr Cooke also detected a fracture to the right superior horn of the thyroid cartilage (ts 367). It was Dr Cooke's evidence that the degree of force required to cause the injuries which he observed in the area of Ms Hall's neck would be significant - being either prolonged squeezing or a stronger brief impact of some type. His evidence was that the fracture of the thyroid cartilage which he observed was very commonly seen in cases involving compression of the neck, such as in the cases of people who have hanged themselves (ts 368).
Dr Cooke's evidence was that his examination of the other major organs of the deceased, including her heart, revealed no relevant abnormalities or injuries (ts 369).
Dr Cooke also gave evidence to the effect that analysis of the blood of the deceased revealed no traces of alcohol (ts 372).
Dr Cooke expressed the view that his examination caused him to conclude that the cause of death was consistent with compression of the neck, and perhaps some smothering of the mouth (ts 376).
Dr Cooke emphatically rejected the proposition that it was possible to strangle oneself using ones own hands. That was because as soon as the flow of blood to the brain was sufficiently constricted, consciousness would be lost, causing the muscles of the hands to relax and blood flow to resume (ts 376 ‑ 377).
Dr Cooke gave evidence to the effect that he estimated the time of death to be between approximately 1 o'clock and 5 o'clock in the morning (ts 379). He also gave evidence to the effect that he saw no sign to suggest that Ms Hall choked by reason of something lodged in her throat.
During cross‑examination Dr Cooke was asked about the phenomenon known as reflex cardiac arrest. Dr Cooke described this as a concept which was introduced to explain rare cases in which apparently fleeting contact with the neck resulted in collapse and sudden death. He described the process as arising from the link between the carotid sinus in the side of the neck and the heart, resulting in a reflex stoppage of the heart and subsequent death (ts 383). When asked if he was able to exclude the possibility of reflex cardiac arrest having caused the death of Ms Hall, Dr Cooke repled:
I don't think it explains her death of itself for the reason that she has a lot of internal bruising of the neck, so quite clearly the pressure to the neck wasn't fleeting or wasn't transient. There is internal bruising associated with it, so there is much more pressure than just fleeting transient pressure. However, having said that of course in this neck compression sequence where there has been significant pressure resulting in internal injury, that is not to say that some time in that sequence there wasn't a reflex cardiac arrest (ts 383).
However, the cross‑examiner went on:
In other words, you couldn't exclude the possibility that she suffered a cardiac arrest before the injuries to her throat were inflicted?---I think you can because once you have had the cardiac arrest, your heart stops and so you won't get haemorrhages of that nature.
Or if the injuries were caused perhaps simultaneously with the cardiac arrest, you could still expect there to be blood flow around the body which might account for - - -?---To get haemorrhages like that, you have to have a beating heart to get your blood pressure and so she must have had a beating heart to get those haemorrhages and of course I think that goes against what you are saying. She hasn't had the cardiac arrest before the haemorrhages.
But certainly the upshot of what you say is that you can't exclude reflex cardiac arrest as playing a part in this woman's demise?---No. That's right (ts 383 ‑ 384).

Dr Cooke was then cross‑examined about the possibility that someone might choke on a broken thyroid cartilage. Dr Cooke replied:
Yes, I think what you're getting at is if someone has suffered neck compression and has become deeply - had deep unconsciousness they can go into a position where they then asphyxiate because they are not in the recovery position and - yes, that's right (ts 385).
It can thus be seen that Dr Cooke did not consider that either reflex cardiac arrest or choking was the likely cause of Ms Hall's death. His evidence was to the effect that while one could not exclude the theoretical possibility that either was the cause of death, those possibilities were entirely speculative, and unsupported by any evidence he had seen or observations he had made.
Included within the directions given to the jury by the trial judge was a lengthy and comprehensive passage reviewing and summarising the evidence given by Dr Cooke. He commenced that portion of his directions by emphasising the importance of the evidence given by Dr Cooke in the following passage:
I wish to stress to you what I am sure you realise is entirely obvious - the importance of this evidence - because this case turns very largely on what caused Esther Hall's death. Was it self-induced or due to natural causes? Was it a killing by some other person - because only if it was a killing is there a basis for a charge of homicide (ts 617 ‑ 618).
The trial judge went on to direct the jury that whilst Dr Cooke had given expert evidence, that evidence was not to be given any greater weight or emphasis than the other evidence which the jury had received, and in particular, was subject to scrutiny, review and evaluation by the jury as to the cogency and reliability of the evidence (ts 618).
The trial judge comprehensively reviewed the evidence given by Dr Cooke in his direction to the jury (ts 618 ‑ 627). He specifically dealt with Dr Cooke's evidence relating to reflex cardiac arrest and the possibility of choking, in the following portions of his direction:
Dr Cooke was also asked about the possibility of death due to choking and he said that nothing was found to explain this and that the airway was unobstructed and nothing had been found on the location which might explain a choking, but he observed that choking can happen. It happens mostly with elderly demented people who can sometimes choke on their food. I am sure you are aware of other circumstances of choking where someone inadvertently swallows something and can choke, but nothing like that was found.
...
He was also asked about a phenomenon referred to as reflex cardiac arrest and he explained that this was accepted to be a response by the cardiovascular system to sudden pressure and that it could be caused by fleeting contact with the neck and it was something to do with a stimulus to the carotid artery which in turn affected blood flow to the brain, but Dr Cooke went on to say that in his opinion the phenomenon of reflex cardiac arrest did not explain this death and his reasons for that opinion were that there existed a lot of internal bruising to the next and that must have been indicative of a lot of pressure in this particular case.
He also said that you won't get haemorrhages if there is a cardiac arrest first because there must be a beating heart in order to cause these haemorrhages, to the petechiae around the eyelids and on the sclera would not have been caused had the sole cause of death been reflex cardiac arrest, but he did say that one could not exclude reflex cardiac arrest as playing a part in this death and that if there was pressure which produced a broken cartilage it would be possible to choke from the broken cartilage and that this body, found on the back, was not in an ideal position to recover from any choking episode, if there was one.
In re examination by Ms Petrusa, Dr Cooke was asked more about the injury to the thyroid cartilage or hyoid cartilage. He said that the possibility of a fleeting injury which might induce reflex cardiac arrest was not consistent with the other multiple injuries which he had located on this body and which are depicted in the diagrams which I have shown to you.

He said that reflex cardiac arrest was a possibility but if it applied at all, it would probably be the result of force done to the neck (ts 625 ‑ 626).

It is clear that the trial judge gave clear and fair directions to the jury in relation to the evidence given by Dr Cooke with respect to the possibility that Ms Hall may have met her death as the result of reflex cardiac arrest or choking. The submission put on behalf of Mr O'Driscoll to the effect that the directions given in this respect were inadequate are entirely without foundation and must be rejected.

Conclusion

For these reasons there is no substance in either ground of appeal. Mr O'Driscoll's application to extend the time within which to appeal should be refused, as no miscarriage of justice would arise from that refusal.
PULLIN JA: I agree with the Chief Justice.
HALL J: I agree with the Chief Justice.