Pavic, M.A. v The Queen

Re: MARK ALEXANDER PAVIC
And: THE QUEEN
No. ACT G79 of 1985
Criminal Law - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Toohey J
Spender J.

CATCHWORDS

CRIMINAL LAW - Appeal against conviction for manslaughter on charge of murder - case based on circumstantial evidence - whether sufficient evidence to go to jury - whether verdict unsafe or unsatisfactory - whether misdirection by trial judge as to evidence of killing - sufficiency of direction as to mental element for manslaughter considered - necessity to read summing-up as a whole.

EVIDENCE - admissibility of statements by deceased person as to fear of accused.

Barca v. The Queen (1975) 133 C.L.R. 82 cons.

Chamberlain v. The Queen (No. 2) (1984) 153 C.L.R. 521 ref'd to

Pemble v. The Queen (1971) 124 C.L.R. 107 ref'd to

Reg. v. Plomp (1963) 110 C.L.R. 234 ref'd to

Reg. v. Longley (1962) V.R. 137 ref'd to

Reg. v. Szach (1980) 23 S.A.S.R. 504 ref'd to

Reg. v. Hendrie (1985) 37 S.A.S.R. 581 ref'd to

Reg. v. Perry (No. 2) (1981) 28 S.A.S.R. 95 ref'd to

HEARING

CANBERRA

#DATE 18:3:1986

ORDER

The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The facts in this matter and the challenges to the verdict of manslaughter have been dealt with in the judgments of Toohey J. and of Spender J. and I shall not recapitulate them.

I agree with the conclusions of Spender J. and, for the greater part, the conclusions of Toohey J., and in substance with their respective reasons for those conclusions.
The information charged murder. An alternative finding of manslaughter was open, and the learned trial judge dealt with the ingredients of that crime, and the evidence respecting it, in the course of his summing up on the charge of murder.
The case was one depending on circumstantial evidence. There was evidence of ill-will borne by the accused for his mother, the deceased. There was evidence that before her death he had expressed his hostility to her, and said that he might do her violence. To one witness, whose credit was strongly challenged, he had said that he might strangle her. He was alone with her late in the evening when she died. He took her body away secretively, applied weights to it, and dropped it in what he thought was a deep part of Lake Burley Griffin. There was evidence that he had, after the event, said to a friend, referring to his mother, that he had killed her. To others, he consistently denied knowing anything about his mother's disappearance. His Honour (Miles C.J.) summarised the Crown case dealing with implicating circumstances as follows:

"The Crown says that you are presented with a picture here of a young man in his twenties with a particular background both as to his parents and to their ethnic forebears as to which the accused himself has shown some preoccupation to say the least. And that there has been an unusual family background and that by the time of the particular events in question, the accused showed some preoccupation with the future of the family coffee business that had been established by his father and which the accused appeared (sic) to see not sold off to strangers. The Crown says that you would look at the evidence of the poor relationship, again to put it at its lowest, between the accused and his mother particularly since the death of his accused and his mother particularly since the death of his father, and the Crown would say that the evidence would show that the accused became increasingly preoccupied in the weeks before the death of his mother with the future of his father's estate when the coffee business appeared to be likely to be sold.

And so the Crown says you look at the evidence as it gathers together in those weeks before the mother's death. There is evidence that the accused went to the solicitor's office and obtained a copy of his father's will. That he brought it to the arcade or to the coffee shop and indicated that he wanted to discuss it with his mother, and that as time went on he showed increasing signs of animosity towards his mother, and you will recall the Crown says, in relation to this sort of thing, the evidence given by such people as Mr Moses and Mr Shamash about the way in which the accused spoke to them of his mother, and in fact, used the term "the last straw", which appeared to relate to the imminent sale of the coffee business.

And then the Crown says that you would take into account the general expressions of the desire to get rid of his mother and indeed, the discussions that took place between the accused and Mr Harmer and Miss Linnegar about what it would cost to get somebody from Sydney to get rid of somebody else. And so the Crown says that brings you up to a situation where only some days before the eventual death of the deceased, you have evidence of an argument with - between the accused and the deceased on the Sunday 24 March, which caused the deceased to visit her neighbour, Mrs French, in a state which the Crown says exhibited fear of the accused on the part of the deceased. Then the Crown says that you would pay attention to the evidence from Mr Bersinic that on the Wednesday, the day before the death, the accused was speaking to him of strangling his mother, putting the body of his mother in the lake.

And then the Crown says, to cap all that, on the Thursday the accused was in the situation of reading in the local newspaper of the sale of the business and indeed of the very recipes of the various blends of coffee that had been sold over the years by the business. The Crown lays emphasis on the statement by the accused himself, I think to one of the police officers, that he spent some time during that day at the offices of the Canberra Times.

And then the Crown says, of course, you look at the events that occurred after the finding of the body of the deceased, the attempt to get rid of evidence which was incriminating, the Crown would urge upon you, not simply of disposing of the body of his mother who had died innocently, but is indicative of a sense of guilt so strong that it points towards murder. And the Crown goes on to say that you take into consideration the statements made to Peter May by way of admission or confession on the Sunday at May's home, and according to that witness the accused said, "Peter, I killed her" and went on to say something about using rubber gloves.

The Crown would emphasise that that was not simply a statement on the part of the accused whereby he was trying to let it be known that he was placed in this dreadful predicament where his mother had died before his very eyes and he in panic had sought to get rid of the body lest he be suspected of having something to do with the death. The Crown would also emphasise the behaviour of the accused over the ensuing days when he showed no signs of remorse when interviewed by the police officers and indeed, on the Sunday, I think it was, when he had lunch with a friend of the family."

There was a gap in the circumstantial case arising from the fact that on post-mortem, when the body had been found four or five days after death, no cause of death could be ascertained. The heart of the deceased had stopped, but the doctors who were called could not state a cause. The body showed no signs of violence, although some, such as pressure applied to the neck, could have been masked by post-mortem lividity. The evidence of Dr. Cook, who performed the post-mortem, was that he found no "structural" change to the body, arising either from natural or unnatural causes. One thing mentioned as a possibility, among several, was that pressure on the carotid sinus (in the upper part of the neck) could induce a reflex in a part of the brain controlling heart function (the vagus nerve), as a result of which the heart would stop. The medical evidence also allowed the remote possibility that a vaso vagal attack (or faint) sufficient to cause death could arise through extreme fear or emotional tension. The existence of fear, if present to a sufficient degree, could possibly combine with the effect of carotid sinus stimulation. There was evidence that the mother was in fear that her son might do her violence. Another, remote, possibility was that the deceased had simply dropped dead, without any physical stimulation of the vagus reflex at all.
It seems to me that on the medical evidence, when combined with other evidence, to most of which I have referred, it was open to the jury to find that the appellant had killed his mother in the course of carrying out an unlawful and dangerous act, and open to them to find manslaughter. This is also the conclusion reached by Toohey J. and Spender J.
Miles C.J. gave general directions concerning circumstantial evidence, and no challenge is made to them, although it is said that they should have been related specifically to manslaughter, as well as to murder. He dealt with the medical evidence in a number of places. I shall set out most of these.
At transcript pp. 936,7 he said:

"I want to say something now about the way in which you might approach the medical evidence. I will come to the evidence itself in due course, but I want to say something generally about the medical evidence. The medical evidence, of course, was called by the prosecution. No medical evidence was called on behalf of the defence. Of course, the defence does not have to call any evidence on that issue or any other issue. It is a question for you to weigh up the evidence in the Crown case.

There were three witnesses on the medical issue of the cause of death of the deceased. You may think that there was no great conflict between what any of them said, although there might be some conflict on some aspects. At any rate, you may think it not difficult to come to the conclusion that the mecial (sic) evidence is to the effect that the deceased did not die of any known natural cause, and further, that the post-mortem examination did not, of itself, establish any possible or likely cause of the death.

However, the medical evidence based on the post-mortem findings goes further and postulates four possible hypotheses or explanations for the death, as I understand it. Now, I should tell you, members of the jury, that as a matter of law it is incorrect to state that there is no evidence to support any of those explanations, and it is incorrect as a matter of law to state that there is no evidence of a killing. (emphasis added)

Whether there is evidence of killing is in the end a matter for me to decide as a matter of law and I have already made a decision in that regard. Whether the evidence is sufficient, however, for you to be satisfied beyond reasonable doubt of the guilt of the accused is another matter altogether and is a matter for your decision. Obviously, it is not a matter for any of the doctors or any witness to say there is no evidence of a killing in the wide sense, because the doctors do not have before them all the evidence that is before you as a jury.

The way the medical evidence should be approached and accepted in a court is this. The doctors, like all expert witnesses, base their opinion evidence on findings and assumptions and it is open to you, as the ultimate judges fo

(sic) the facts, not to accept the findings and assumptions upon which the doctors have based their opinions and accordingly, not to accept their opinions.

Further, it is open to you as a jury to take into account findings and assumptions which were not open to the doctors to take into account, before you decide that you should accept the opinion of the doctors without qualification. And if you make findings that the doctors do not take into account, they may lead you to reject or modify the medical opinion or, on the other hand and conversely, regard the medical evidence as strengthened.

So when it was put to you on behalf of the defence that there was no evidence of a killing, I would presume that what was really meant was that there was no direct evidence of a killing, or alternatively, that there was no evidence which you would find acceptable to support the conclusion that there had been a killing."

Transcript p. 938:

"Now, the evidence of the doctors has been attacked on the basis that it itself is based on theory and speculation. That of course, is a criticism and it is properly made, and one for you to take into account. It is the sort of criticism, however, that may be directed to any evidence which is based on inference, and indeed, directed to any expert opinion evidence. The doctors draw the inferences as to probable or possible causes of death on the material they have before them.

They are permitted in the light of their expertise and experience to express their opinions, based on that material and on those assumptions. But the opinion of a doctor is not necessarily to be rejected because it is based on theory. In a case where there are competing theories; that is to say when one doctor holds to one theory, which another doctor rejects, that is a matter to be taken into consideration by a jury. But in this case it would appear that there are no competing theories."

. . .

Transcript pp. 939,940:

"If you turn to the medical evidence, if you accept that at its highest, it is that a likely cause of death was pressure in the area of the carotid sinus, as you have heard. And that death from that source could have been contributed to (by) fear or extreme emotion, bringing on a vaso vagal attack. Now, the Crown case is that you would be satisfied beyond reasonable doubt, that there was an act of the accused which was that of his placing his hands around the deceased's throat and applying pressure on either side in the area of the carotid sinus.

And the Crown would ask you to take into account in coming to that conclusion not only the medical evidence and the admission that I have referred to, his statement to you here in court as to his presence at the time his mother fell, but also the statements of prior intention that had been made to Michael Bersinic and the other two people, Stephen Harmer and his lady friend."

. . .

Transcript P. 940:

". . . As I say, the medical evidence is that the most likely cause of death was stimulation of the carotid sinus possibly contributed to by a vaso vagal attack from fear or emotion. It is necessary for you before you can convict, however, to go beyond the medical evidence that that was the most likely cause of death. You look at the whole of the evidence, including the behaviour of the accused before and after the disappearance of his mother, statements of intent and so forth, and also any evidence which relates to or is capable of supporting a finding that the deceased was in a state of fear at any relevant time before her death. And it is for you and not for the doctors to decide whether you are convicted (sic) beyond reasonable doubt that the act of the accused, if there was such an act, caused the death of the deceased.

Now, you can relate, if you wish, your finding on the cause of death to your finding on the question of whether there was an act on the part of the accused. If you are satisfied that the cause of death was stimulation of the carotid sinus, that may assist you in deciding whether or not you are satisfied that there was an act on the part of the accused."

. . .

Transcript p. 946,947:

"The Crown would also lay emphasis, of course, on the medical evidence, which I have already referred to in some little detail; medical evidence showing that there are four hypotheses or possible explanations of the death of the deceased. Firstly, the stimulation of the carotid artery; secondly, vaso vagal attack from extreme emotion or fear, and that second possible cause possibly being associated with the first possible cause; that there was a third possibility of suffocation, and a fourth of what has been called diving reflex.

The Crown says that if you take all those hypotheses into consideration together with the rest of all the evidence and the other matters that I have just outlined to you as being the essential parts of the Crown case, then you would be left with no alternative but to come to a conclusion that there was no reasonable explanation for the death of the deceased apart from a deliberate killing on the part of the accused. The Crown would say that the possibility that she died from an unidentified natural cause in all the circumstances of the case, as they would appear from the rest of the evidence, is so beyond what would be known in the ordinary course of human affairs that you could not accept it as a rational explanation of what happened. Therefore you would be satisfied beyond reasonable doubt of those three elements that are necessary to prove the crime of murder namely, an act on the part of the accused, which the Crown says was in the nature of a stranglehold around the throat of the deceased, which caused the death of the deceased by way of a carotid sinus reflex, possibly contributed to by a vaso vagal attack from extreme emotion or fear; and that in view of all those matters that I have outlined to you, you would come to a conclusion beyond reasonable doubt that if there was not an intent to kill, there was an intent to do grievous bodily harm or at least there was reckless indifference in the sense that the accused realised that his actions would probably cause death. That, members of the jury, in summary, is the nature of the Crown case as I understand it."

. . .

Transcript p. 948 (When dealing with the accused's case):

". . . At any rate, in addition to attacking the credit of those two witnesses Mr. Purnell put to you a very strong submission on what he claimed was the speculative nature of the medical evidence; medical evidence on his argument which did not go beyond, as it were, a mere guess. And he emphasized in that regard that the medical evidence did leave open an explanation of death which was entirely consistent with his client's innocence and that was an unexplained natural cause. You will recall that the doctors agreed that any one of us may at any time drop dead, a heart may stop beating and there will be no pathological evidence as to the cause of death afterwards; structural evidence, I think, was also used in that regard.

And so that possibility does remain open, members of the jury. It is a matter for you to decide whether it remains reasonably open, whether it is a reasonable hypothesis, and if it were, of course, then the death of the deceased would not have been caused by any act on the part of the accused, and he would be entitled to be acquitted. But whether that hypothesis or explanation is reasonably open in the light of all the circumstances is a matter for you to decide."

The particular passage which it is said may have misled the jury is part of what I have copied from p. 936 of the transcript and underlined:

"Now, I should tell you, members of the jury, that as a matter of law it is incorrect to state that there is no evidence to support any of those explanations, and it is incorrect as a matter of law to state that there is no evidence of a killing."

This passage is of course to be read in context, not least of all by reference to the following sentences:

"Whether there is evidence of killing is in the end a matter for me to decide as a matter of law and I have already made a decision in that regard. Whether the evidence is sufficient, however, for you to be satisfied beyond reasonable doubt or the guilt of the accused is another matter altogether and is a matter for your decision."

It is submitted that the jury may have taken the ruling as meaning that the medical evidence showed, or one part of it showed, that there had been a killing. As the passage from p. 937 shows, the defence had submitted to the jury that there was no evidence of a killing. This was sustainable if circumstances outside the medical evidence were omitted.
It seems to me that his Honour was stating a quite correct conclusion. What he said, according to ordinary understanding, was that there was evidence to support one (or more) of the medical explanations. In this way there was evidence of a killing.
It is simply because the passage in question occurs while his Honour is discussing the medical evidence that the submission finds its basis. He does not in terms confine what he is saying to the medical evidence. It is however a not inappropriate place to deal with the matter, having in mind the emphasis placed by the defence on the inconclusiveness of the medical evidence.
It seems to me that the jury could not have been left in any doubt that the fact of a killing did not derive from the medical evidence alone without support from other evidence. This is apparent from the passages I have set out. The doctors themselves made the position plain. However, the judge constantly returned to the fact that it was a case based on circumstantial evidence, and that the jury had therefore to exclude all reasonable hypotheses. This holds true for the direction relating to manslaughter also. The jury themselves had to be satisfied about the medical evidence, and about the question whether there had been a killing.
I agree with Spender J. that there is no case for a new trial. In relation to sentence there is no sufficient basis for interfering with that imposed by the trial judge. At the most, the head sentence might be regarded as at the top end of the scale for the circumstances of the case, but I doubt whether I would have stipulated an appreciably lower non-parole period.
The appeal should therefore be dismissed.

JUDGE2

On 1 October 1985 the appellant was convicted in the Supreme Court of the Australian Capital Territory of manslaughter, following his trial on a charge of murder. On the following day the trial judge sentenced him to 8 years penal servitude with a non parole period of 4 years. The appellant appeals against both conviction and sentence.

There is but one ground of appeal against sentence viz. that it was manifestly excessive. The appeal against conviction is based on a number of grounds - some evidentiary, some in regard to matters on which it is said the trial judge failed to direct the jury, some relating to the decision of the trial judge to leave manslaughter to the jury and others asserting that on the evidence the appellant could not have been properly convicted on the indictment and that the verdict was unsafe, unsatisfactory or dangerous.
The case is a bizarre one in several respects. The appellant was charged with the murder of his mother Danijela Pavic whose body was found floating in Lake Burley Griffin in the Australian Capital Territory shortly after 8 a.m. on Tuesday, 2 April 1985. The top half of Mrs. Pavic's body was weighed down with concrete blocks, secured by a nylon tow-rope. Until his trial the appellant denied knowing anything of his mother's disappearance or being in any way associated with her death. However, in an unsworn statement to the jury, he said that he was with his mother on the night of 28 March 1985 (the day on which she was last seen alive) at Mrs. Pavic's house in the suburb of Torrens. There was evidence of ill feeling between the appellant and his mother, mainly arising from a decision by Mrs. Pavic, following the death of her husband, to sell the coffee business which Mr. and Mrs. Pavic had established.
The appellant claimed that on the night of 28 March there was an argument between him and his mother and that he attempted to leave the house. As he did so, Mrs. Pavic grabbed him by the arm but he pulled his arm away and kept on walking. As he pulled away, she fell down. She did not answer when he spoke to her. He tried to revive her but was unsuccessful. In panic, he got rid of the body by weighing it down and putting it in Lake Burley Griffin. To do so he took the body downstairs from the house and placed it in the back of his car. He returned home and got some concrete blocks. He bought a tow-rope, tied his mother's body to the blocks and then placed the body in the lake.
Post-mortem examination failed to establish any pathological evidence as to the cause of death. There was medical opinion, to which further reference will be made later, to the effect that of several possibilities as to cause of death the most likely was heart failure brought about by external stimulation of the carotid sinus, possibly contributed to by a vasovagal attack produced by extreme emotion or fear. According to the evidence, such a stimulus could have been brought about by the placing of hands around Mrs. Pavic's throat, with the application of pressure so slight as not to cause bruising or to produce any symptoms evidencing the application of force.
In sentencing the appellant, the trial judge said:

"By the jury's verdict it must be taken to have (been) satisfied beyond reasonable doubt that the death of the

deceased was brought about by an unlawful and dangerous act on the part of the prisoner; but it was not satisfied that that act was accompanied by the requisite mental state of an intent to kill or do grievous bodily harm or of reckless indifference to human life. Further, it seems clear that the hypothesis postulated by the medical evidence as to the most likely cause of death was accepted by the jury as being established beyond reasonable doubt. Or in the terms associated with cases of circumstantial evidence, that hypothesis in the light of the evidence was accepted by the jury as the only rational one which went to explain the circumstances.

Accordingly, I see the jury's verdict as an acceptance of the prosecution case to the required standard, that the accused was guilty of an unlawful and dangerous act, namely the placing of his hands around the throat of the deceased in order to hurt, intimidate or frighten her; and (sic) act which carried a foreseeable risk of injury but which was not accompanied or which was not proved to be accompanied, by an intent to kill or do grievous bodily harm, or by reckless indifference to human life".

The trial occupied some three weeks. A large number of witnesses were called by the Crown. Of necessity, since no one other than the appellant was present when Mrs. Pavic died, their evidence was in the main circumstantial. However there was evidence by an acquaintance, Peter Maxwell May, of a statement made by the appellant following his mother's death: "Peter, I killed her.". As already mentioned, the appellant made an unsworn statement. He called six witnesses, some of whom gave evidence relating only to character.
The main ground of appeal was put in this way. Since the jury acquitted the appellant of murder but found him guilty of manslaughter, their verdict must be understood as a finding that Mrs. Pavic's death was caused by an unlawful and dangerous act on the part of the appellant but an act that was not accompanied by intent to kill or to do grievous bodily harm or by reckless indifference to human life. In the light of the way in which the trial judge summed up to the jury, the argument ran, the jury must have concluded that the unlawful and dangerous act was the placing by the appellant of his hands around his mother's throat in order to hurt or intimidate or frighten her. Such a finding, it was said, was not open to the jury as a finding beyond reasonable doubt because there was no evidence to support the finding. Alternatively, if there was some evidence to support the finding, the jury acting reasonably must have entertained a sufficient doubt to have resulted in the appellant's acquittal.
The appellant's case in this respect was put in two ways. It was said that the trial judge erred in allowing the jury to consider whether the appellant could be convicted of manslaughter. It was, I think, implicit in this ground of appeal and the way in which the appeal was argued that the trial judge should have withdrawn the case from the jury altogether or at any rate erred in not directing the jury to acquit the appellant. Although neither counsel for the Crown nor the appellant addressed the jury on the question of manslaughter (and earlier in discussion with counsel his Honour had said that he was not minded to put manslaughter to the jury), the trial judge did direct the jury on manslaughter as a possible verdict. If there was a case to go to the jury at all, it was on the basis that the jury might reasonably conclude that some action of the appellant had contributed to his mother's death. Before the appellant could be found guilty of anything, the jury had to be satisfied that his mother's death was brought about by an unlawful and dangerous act on his part. But the act may not have been accompanied by an intent to kill or do grievous bodily harm or by a reckless indifference to human life. If done to hurt, intimidate or frighten Mrs. Pavic, manslaughter would be the appropriate verdict.
It seems to me that the appellant's real complaint in this regard was not that his Honour left manslaughter to the jury but that, in so doing, he failed to make clear what he had made clear in directing on murder viz. that if there was a reasonable hypothesis consistent with innocence or falling short of manslaughter, they should acquit the appellant. So directed, counsel submitted, a reasonable jury must have entertained a sufficient doubt to have resulted in the appellant's acquittal. Hence it was unsafe, unsatisfactory and dangerous to allow the verdict to stand.
The focus of the appeal was on the medical evidence. This evidence came from three medical practitioners called by the respondent. The testimony of Dr. Cook (who performed the post-mortem on the body of Mrs. Pavic), Professor McCloskey (Professor of Physiology in the Faculty of Medicine of the University of New South Wales) and Dr. Plueckhahn (Director of Pathology at Geelong Hospital and Senior Lecturer and Examiner in Forensic Pathology at Monash and Melbourne Universities) was in substantial agreement. It is therefore possible to deal with their evidence in a composite way to an extent though some analysis of the evidence of each witness is required.
None of the three witnesses was able to find a cause for Mrs. Pavic's death. All agreed there was no evidence of any trauma or of any injury causing death, no evidence of violence, no evidence of death due to failure of the central nervous system, no evidence of foul play and no evidence of a killing. Killing, I take to have been used in contra distinction to death from natural causes. Put another way, there was no evidence that Mrs. Pavic did not die from natural causes; equally there was no evidence that she did.
Against this background the medical witnesses were asked to express their views as to possible causes of death. They did so, though counsel for the appellant complained that the doctors were in truth doing no more than speculating about possible causes. I do not think that the criticism is well founded. It was within the expertise of the medical witnesses to express views about the cause of death. The significance of those views and the weight to be attached to them was a matter for the jury, adequately directed. Dr. Cook ruled out asphyxia because of the absence of any violence applied to the neck, though he commented that it would be possible "for asphyxia to be effected by perhaps putting something soft or even some cloth or pillow or something over the face". But he added "I found no evidence to suggest that". Dr. Cook suggested as "feasible" an injury to the carotid sinus which might lead to the heart slowing down or, if sufficiently significant stimulus were applied, to cause the heart to stop. In that regard, he acknowledged that there was nothing to see with the naked eye or even microscopically, adding that pressure may have been so slight as to have left no indication. He also described as a "remote possibility" an emotional stimulus, unaccompanied by any physical contact, leading to a vasovagal attack with resulting unconsciousness and death. He also identified as a possibility diving reflex which is the impact on the body of a live person of sudden contact with cold water, causing the heart to stop. In such circumstances death is induced by contact with water but is not death by drowning. Dr. Cook agreed that he could only speculate as to what might have caused Mrs. Pavic's death.
Professor McCloskey thought the likelihood of sudden death, which I take in the context to mean death from natural causes, to be quite remote. He mentioned four possibilities. He thought it possible that death was the result of stimulation to the area of the carotid sinus and that the bruising one would ordinarily expect in such a case to have been obscured by post-mortem lividity. Asphyxia was another possibility, though in that situation it is usual to find small haemorrhages, particularly in the soft tissues of the face and eyes and in the coverings of the lungs and heart. These had not been reported on post-mortem. Another possible cause was emotional stress i.e. a vasovagal attack brought on by an extreme form of emotional upset. The last possibility was activation of the vagal nerve to the heart occasioned by cold water - the diving reflex mentioned by Dr. Cook.
Asked whether he was prepared to make a comment on the respective degrees of probability of various causes, Professor McCloskey answered:

"I believe that the most probable cause in the circumstances is some action of the carotid sinus reflex stopping the heart. . . . Stimulated by some external mechanical agent".

He added:

"I regard that as being far more probable than a sudden, unexplained death with no post mortem consequences".

In cross-examination Professor McCloskey agreed that he had been asked to theorise because, in his words, "There is no evidence for the cause of death of the deceased, as I understand it, and I have been asked to suggest ways that she may have died".
Dr. Plueckhahn said that he thought Professor McCloskey's approach to the question of possibilities was "the only logical and reasonable approach to a problem". He said that he would rate the possibilities in the same order as Professor McCloskey, but he agreed that there was no evidence to support any of the hypotheses.
Counsel for the appellant submitted that in the light of all the medical evidence, various hypotheses were open as to the cause of Mrs. Pavic's death. I shall list them in the order they were listed by counsel:

1. unexplained natural cause

2. vasovagal reflex occurring naturally

3. vasovagal reflex from a trifling incident

4. vasovagal reflex from psychological or emotional stimuli

5. cardiac arrest due to emotion, fright, shock, joy

6. asphyxia

7. diver's reflex

8. vasovagal reflex from carotid stimulation

9. vasovagal reflex from a physical stimulus other than carotid stimulation.

None of the doctors approached the matter in that detail but counsel for the respondent did not question the formulation. Nevertheless, a portion of Dr. Pleuckhahn's evidence should be kept in mind. Asked about vasovagal reflex, he commented:

"Well, the whole reflex depends upon some stimulation, whether it is physiological or physical. You do not get a reflex without having some stimulant".

Counsel for the appellant submitted that of the nine hypotheses open, only numbers 6, 7, 8 and 9 (in part) were consistent with guilty conduct on the part of the appellant. This left numbers 1, 2, 3, 4, and 5, none of which would justify a verdict of manslaughter. In counsel's submission, there was no foundation for choosing one hypothesis over another. In those circumstances, the trial judge should not have permitted the matter to go to the jury; alternatively the jury, acting reasonably, must have entertained a sufficient doubt to entitle the appellant to an acquittal. In particular, said counsel, there was no evidence of a killing, hence the trial judge erred in directing the jury in these terms:

"Now, I should tell you, members of the jury, that as a matter of law it is incorrect to state that there is no evidence to support any of those explanations, and it is incorrect as a matter of law to state that there is no evidence of a killing.

Whether there is evidence of a killing is in the end a matter for me to decide as a matter of law and I have already made a decision in that regard. Whether the evidence is sufficient, however, for you to be satisfied beyond reasonable doubt of the guilt of the accused is another matter altogether and is a matter for your decision".

After the jury had retired to consider its verdict counsel for the appellant made a submission to the trial judge tha, in putting the matter to the jury in this way, his Honour had erred in law. He submitted that, by telling the jury that there was evidence of a killing, his Honour had taken from the jury a decision which was one for them to make. The trial judge declined to redirect the jury on this point.
Counsel for the respondent submitted that, on a fair reading of the charge to the jury, the trial judge was doing no more than indicating that it was for him to say, as a matter of law, whether there was evidence capable of establishing the fact of a killing, but that, by contrast, it was for the jury to decide whether it was prepared to make a finding beyond reasonable doubt that there had in fact been a killing.
It is of course beyond question that anything said by the trial judge in directing the jury must be taken in context. It is equally beyond question that it is not for an appellate court to comb through a trial judge's charge to the jury and to fasten on to any error however small or on to anything which may have lead to a misunderstanding on the part of the jury, however immaterial. Nevertheless, the medical evidence was so crucial in the present case that it was essential that nothing said in the charge to the jury should mislead it in any way as to its proper function. When his Honour told the jury what he did, it was in the context of discussing the medical evidence. He had pointed out that there were three medical witnesses whose evidence did not conflict in any significant way. He had told the jury that they might think it difficult to conclude that the deceased did not die of any known natural cause and further that the post-mortem examination did not, of itself, establish any possible or likely cause of death. He went on to refer to the four "possible hypotheses or explanations for the death" and to make the statements complained of.
His Honour then told the jury that the doctors, like all expert witnesses, based their opinion evidence on findings and assumptions and it was open to the jury, as the ultimate judges of the facts, not to accept those findings and assumptions and so not to accept the medical opinions. Alternatively the jury might take into account findings and assumptions which the doctors could not take into account. His Honour commented:

"So when it was put to you on behalf of the defence that there was no evidence of a killing, I would presume that what was really meant was that there was no direct evidence of a killing, or alternatively, that there was no evidence which you would find acceptable to support the conclusion that there had been a killing".

There was a danger inherent in the earlier direction complained of viz. the distinction made between evidence of a killing on the one hand and satisfaction as to the guilt of the accused on the other. In telling the jury that it was incorrect as a matter of law to state that there was no evidence of a killing, his Honour must be taken to have conveyed to the jury that they should proceed on the basis that there was evidence of a killing. The appellant could not complain of the matter being put this way, as long as his Honour made it clear that the evidence of a killing lay, not in the medical evidence alone, but in the evidence in its entirety including the relationship between the appellant and his mother, statements made by him before and after his mother's death, his denial until the trial of any knowledge of the circumstances of the death and his conduct in placing the body in Lake Burley Griffin. But his Honour was concerned at that point of his charge to the jury to deal with the medical evidence and it would not have been unreasonable for the jury to conclude that in the testimony of the doctors lay evidence of a killing, indeed that they should proceed on the basis that there had been a killing. There was in truth no evidence of a killing in the medical evidence save to the extent that the doctors might express an opinion as to the likely cause of death. In contrasting evidence of a killing with the guilt of the accused, his Honour may have led the jury to conclude that they should give no weight to the notion of a death from natural causes or a death as the result of a vasovagal reflex not produced by conduct on the part of the accused.
The case against the appellant was substantially one of circumstantial evidence and in those circumstances the principles to be applied were expressed this way by Gibbs, Stephen and Mason JJ. in Barca v. The Queen (1975) 133 CLR 82 at 104:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v. The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v. The Queen; see also Thomas v. The Queen. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.'"

In Barca the trial judge, in response to a suggestion by the accused's counsel to the jury that the evidence was consistent with murder having been committed by the father of the deceased, told the jury that there was no evidence upon which they could find that the father was responsible for the murder and that it would be wrong for them to acquit the accused on the ground that the murder might have been committed by the father. That direction was made both before the Crown prosecutor addressed the jury and again during the judge's charge to the jury. Gibbs, Stephen, Mason and Murphy JJ. (McTiernan J. dissenting) held that it was for the jury to decide whether they were satisfied that the evidence as a whole was consistent with the hypothesis that the father and not the accused had murdered the deceased and the judge had been in error in directing them that they could not decide that issue in favour of the accused.
It is true that in the present case what his Honour told the jury was that as a matter of law there was evidence of a killing. And it is also true that shortly after the direction complained of his Honour, in dealing with the charge of murder, emphasised to the jury that they had to be satisfied that there had been some act on the part of the appellant, causally related to his mother's death. He reminded the jury of the Crown's case that not only the medical evidence but also the admission to May, the appellant's admission that he was present when his mother fell and also statements of prior intention made to three witnesses should be taken into account. Later his Honour directed the jury to look at the whole of the evidence:

". . . including the behaviour of the accused before and after the disappearance of his mother, statements of intent and so forth, and also any evidence which relates to or is capable of supporting a finding that the deceased was in a state of fear at any relevant time before her death".

However I am compelled to the conclusion that, in all the circumstances and notwithstanding what was said later, the jury may well have regarded the direction complained of as precluding them from finding that Mrs. Pavic's death was due to natural causes or to circumstances not involving conduct on the part of the appellant.
The view to which I have come must lead to the appeal being allowed and the conviction quashed. But the appropriate consequence is a retrial of the appellant for a jury, adequately directed as to the medical evidence and the respective functions of judge and jury, might well find the appellant guilty of manslaughter.
A further ground of appeal is that the trial judge erred in not directing the jury in relation to a reasonable hypothesis either consistent with innocence or falling short of manslaughter. The gravamen of this complaint was that his Honour failed to make clear to the jury, when directing on manslaughter, that the principles applicable to a case of circumstantial evidence apply equally to manslaughter as to murder. It was also said that the jury should have been directed that any unlawful and dangerous act by the appellant bringing about the death of his mother in circumstances falling short of murder must nevertheless be an intentional act.
It is not in dispute that the principles relating to circumstantial evidence apply equally in the case of manslaughter. In Pemble v. The Queen (1971) 124 CLR 107 at 133, Menzies J agreed with the following observations of Smith J. in Reg. v. Longley (1962) VR 137 at 148:

"The charge should also, in my opinion, have included corresponding directions in relation to manslaughter. It should have directed the jury that if they rejected the applicant's account of the wounding, but were not satisfied that he was guilty of murder, then before they could find him guilty of manslaughter they must be satisfied beyond reasonable doubt: (i) that he caused the death by using the gun to commit an unlawful and dangerous assault; or else (ii) that he caused the death by handling the pistol with criminal negligence, realising the danger he was creating and recklessly choosing to run the risk. And the charge should have gone on, I consider, to say that, since the Crown case of manslaughter rested on circumstantial evidence, the jury could not be satisfied of his guilt on either of these alternative bases unless, in their view, the facts proved were inconsistent with any reasonable hypothesis falling short of manslaughter".

The answer of the respondent was that, when one examines the trial judge's direction, it is apparent that he spoke in general terms of the onus of proof, of the need for the Crown to exclude any reasonable hypothesis consistent with innocence and of the fact that where evidence is circumstantial, the jury may convict only if the guilt of the accused is the only reasonable explanation in the circumstances. His Honour did draw those matters to the attention of the jury and he did so more than once. Nevertheless the points were made for the most part when his Honour was dealing with the question of murder. Having dealt with the principles relevant to a charge of murder and the legal concept of accident, his Honour went on:

"I will also tell you, members of the jury, this, that it is possible that if you took a certain view of the evidence you could find that the accused commenced an act which caused the death of his mother but you were not satisfied as to the requisite state of mind.

And if you found that that act was both unlawful and dangerous, but as I say was not accompanied by the necessary intent or reckless indifference, the accused would be entitled as a matter of law to be acquitted of the crime of murder and convicted of the crime of manslaughter. Now, an assault is an unlawful act and to place one's hands around the throat of another in order to intimidate or to frighten is an assault.

And an act is dangerous if it is a foreseeable risk of personal injury. That means foreseeable in an objective sense, that is, is it likely to cause injury in the eyes of a reasonable person. Whether the placing of the hands of the accused around the neck of the deceased, if you find that established, involves a foreseeable risk of injury is a matter for you.

But as I say, if you found that the accused caused death by an unlawful and dangerous act but were not satisfied that he had the requisite intent to kill or do grievous bodily harm or that he did not act - or you were not satisfied that he acted with reckless indifference to human life, he would be entitled to be found not guilty of murder and guilty of manslaughter.

Now, as far as intent and reckless indifference is concerned the test is entirely subjective. You look as best you can on the material before you at the intent of the accused himself or the state of mind said to give rise to reckless indifference, the realization of probable death, on the part of the accused himself and not on the part of some other hypothetical person."

I have set out this part of his Honour's charge to the jury at some length because it represents all that was said initially in relation to manslaughter. There is a problem as to the word "commenced" appearing in the early part of this extract. It may be an error in transcription and that his Honour used the word "committed".
In my view nothing said or omitted to be said by the trial judge in regard to manslaughter could have caused the jury to lose sight of the fact that the onus of proof remained on the Crown. It may be that at this stage his Honour did not sufficiently bring home to the jury that, before they could convict the appellant of manslaughter, they had to be satisfied that the act contributing to Mrs. Pavic's death was an unlawful and dangerous act intended by the appellant. But in the course of their deliberations, the jury sought guidance on several matters, one of which was put in these terms:

"Three, in your Honour's summation, reference was made to manslaughter; is this a consideration open to the jury?"

His Honour then told the jury that as a matter of law, a finding of manslaughter was open to them if they concluded that there was an unlawful and dangerous act on the part of the accused concerning Mrs. Pavic's death, not accompanied by intent to kill or do grievous bodily harm or by reckless indifference. He said that an assault was an unlawful act and that the handling of the deceased, accompanied by an intention to frighten, intimidate or hurt her would constitute an assault. He spoke of danger as involving foreseeability of injury. It is true that his Honour did not expressly direct the jury that the conduct constituting the assault must be intentional but I do not think that the jury could have been left in any real doubt that this was the case. In this regard the redirection cured any inadequacies in the earlier direction.

The next question is whether his Honour sufficiently brought home to the jury an appreciation that the Crown case of manslaughter was circumstantial just as was the Crown case of murder.
It was necessary to make the jury aware of the principles expressed in Chamberlain v. The Queen (No. 2) (1983-1984) 153 CLR 521 Of course I am not suggesting that his Honour was obliged to reproduce the precise language used by the members of the High Court. But at 536 Gibbs C.J. and Mason J. said:

"Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence . . . it seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt".

In the course of a lengthy summary the trial judge returned more than once to the question of circumstantial evidence and the need for the jury to be satisfied that there was no reasonable explanation of the circumstances of Mrs. Pavic's death other than the guilt of the accused. For the most part these remarks were made in relation to the charge of murder but the jury could have been in little doubt that they applied to the guilt of the accused generally. This ground of appeal has not been sustained. Nevertheless, in rejecting it I adhere to the view that the direction that there was in law evidence of a killing was in the circumstances capable of leading the jury into error.

The conclusions I have reached make it unnecessary to consider what may be described as subsidiary grounds of appeal. In so far as these grounds complain of the failure of the trial judge to put certain matters to the jury, the submission is in part that his Honour did not expressly correct certain things said by the prosecutor. The short answer to this complaint lies in what was said by King C.J. in Reg. v. Szach (1980) 23 SASR 504 at 577:

"There was certainly no legal obligation on the learned Judge to correct counsel's error. Judges frequently do so. Whether it is sufficiently important to do so and whether it is desirable in all the circumstances to do so must be a matter for the judgment of the individual Judge".

If this Court was of the opinion that an incorrect argument had been put by the prosecution and not corrected by the trial judge, it would be a matter for the Court to decide whether the result had been a miscarriage of justice. I am not persuaded that there was a miscarriage of justice by reason of anything said by the prosecutor in his final address and which remained uncorrected by the trial judge. Equally, to the extent that his Honour may have failed to direct the jury on some specific matters, I am not persuaded that there was any miscarriage of justice.

It should be made clear that my reasons for allowing the appeal lie in the direction to the jury in regard to the medical evidence. It does not lie in any conclusion that the verdict was unsafe, unsatisfactory or dangerous or that upon the whole of the evidence the appellant could not have been properly convicted of manslaughter. There is however one ground of appeal to which I have not referred but which warrants consideration. It concerns the admission of certain evidence and it stands as an independent ground of appeal though the evidence so admitted had some relevance to the cause of death of Mrs. Pavic. The point arises in this way.
The second last of fifty-seven witnesses called by the respondent was Sylvie French. When Mrs. French was called to give evidence, the position was that the appellant had made no admission of being at his mother's house on the night of 28 March 1985. There was however evidence of an unhappy relationship between the appellant and his mother; evidence by Peter Maxwell May that on Sunday, 31 March the appellant said to him "Peter, I have killed her", referring to his mother; and evidence relating to the tow-rope and concrete blocks linking the appellant with the disposal of Mrs. Pavic's body. Before calling Mrs. French, counsel for the respondent told the trial judge that on Sunday, 24 March 1985, she had a conversation with the deceased. This was four days before Mrs. Pavic was last seen alive. Counsel told his Honour that Mrs. French, who had known the deceased for some years, would say that on the occasion in question Mrs. Pavic said to her "This is the last time you will see me alive, Mark is going to kill me".
Counsel for the appellant objected to the evidence but his Honour ruled it admissible. His Honour spoke at some length as to his reasons for admitting the evidence but an adequate summary appears in the following passage from his ruling:

"Fear on the part of the deceased in that period before her death is in my view a relevant matter on the issue of the cause of death. Statements by the deceased which go to prove that fear are admissible in my view not as part of the so-called res gestae but as direct evidence about the person's physical condition. In that sense, although there is some argument over the theory behind it, it is my view that such evidence is not admitted as an exception to the hearsay rule but as original".

In the course of her examination-in-chief, Mrs. French, whose first language is not English, said that on the afternoon of 24 March Mrs. Pavic came into her loungeroom, crying and upset.

"She say to me, 'You see me last time . . . alive. Mark is going to kill me.' "

In cross-examination she was asked whether she recalled giving evidence in the Court of Petty Sessions, to which she said yes. She was asked whether she recalled saying on that occasion "You see me last time live today. Mark want to kill me". Mrs. French said that she did not understand what was being put to her. As she agreed that she read English, a passage from the transcript of the proceedings below was put to her which included a statement by her that Mrs. Pavic had said "Mark want to kill me". She said she did not remember having made that statement, that she was sick and that "Maybe my memory go".

It was common ground that the words used by Mrs. Pavic to Mrs. French were not admissible to prove the truth of what had been said. In the course of directing the jury, the trial judge referred to Mrs. French's evidence and said:

"At any rate the Crown put the evidence of Mrs. French before you on the basis that it goes to prove something of very limited extent. It may go to prove - and it is entirely a matter for you - that the deceased was in a state of fear over the days before her death and in particular in fear of the accused. The defence says, of course, well, the evidence about Mrs. French is simply that the deceased was upset; that she was in fear, but it is a matter for you what you decide about that.

But at any rate I must warn you, as the Crown has pointed out, that you can only accept the evidence of Mrs. French as establishing fear. It cannot go any further than that. Mrs. French says the deceased says 'Mark is going to kill me', that is no evidence at all that Mark was going to kill her. There is no evidence that Mark has said anything; no evidence that Mark did anything. It is only evidence of the state of mind of the deceased, and of course it is a matter for you as to how far you accept . . . "

On the hearing of the appeal, the respondent supported the admission of the evidence in this way. The Crown case was that the deceased died from the effects of a vasovagal attack at some time in the evening of Thursday, 28 March 1985; such an attack presupposes some external stimulation of the carotid sinus; the effect of any such stimulation will be heightened by any sensation in the person affected of fear of the person by whom the external stimulation is provided; the appellant was admittedly alone with the deceased at the time of her death and such a physical proximity to the deceased would have enabled him to apply external pressure to the deceased's carotid sinus; and at the time of death the deceased's perception of the appellant was that he intended her harm and she was in fear of him accordingly.
Two comments need be made about this submission. The first is that a vasovagal attack does not presuppose some external stimulation of the carotid sinus; external stimulation is one possible cause of such an attack. Next it should be said that the medical evidence did not go so far as to establish that the effect of stimulation of the carotid sinus will be heightened by any sensation of fear. Rather, the medical evidence, particularly that of Professor McCloskey, seemed to be that the degree of emotional upset would need to be considerable.
In Reg. v. Hendrie (1985) 37 SASR 581 at 585 King C.J. said:

"It is well established law that a person's state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of providing the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind".

See also Reg. v. Perry (No. 2) (1981) 28 S.A.S.R. 95. In my view the evidence of Mrs. French was admissible to establish the state of mind of Mrs. Pavic at a time reasonably contemporaneous with her death. Whether the evidence was admitted was essentially a matter for the discretion of the trial judge. While his Honour would have been justified in refusing to admit the evidence, given its likely prejudicial effect, I am not persuaded that he erred in the exercise of his discretion. Equally, while it may be that his Honour could have made clearer to the jury the need to relate Mrs. French's evidence to the medical evidence, I am not persuaded that the jury was led into any error in this regard. His Honour did make it clear to the jury that what the deceased had said to Mrs. French was no evidence at all of the appellant's intentions.

However, for reasons already given, I am of the opinion that the appeal should be allowed, the conviction quashed and a new trial ordered.

JUDGE3

Mark Alexander Pavic was convicted on a charge of manslaughter in the Supreme Court of the Australian Capital Territory on 1 October, 1985. He had been charged with the murder of his mother on or about 28 March, 1985. After a lengthy trial, the jury acquitted him of murder but convicted him of manslaughter. On 2 October, 1985, the learned trial judge sentenced him to imprisonment for eight years and fixed a non-parole period of four years. Mr. Pavic appeals against both conviction and sentence.

Mrs. Pavic's body was found floating in Lake Burley Griffin on the morning of Tuesday, 2 April, 1985. Two concrete blocks had been secured to the area of her chest by a nylon tow rope. There was a strong circumstantial case against the appellant, but the striking feature of the case is that the body of Mrs. Pavic revealed no signs as to how she had died.
The grounds of the appeal against conviction fall into five broad areas.
The major ground was that there was no evidence such as to allow the case properly be left to the jury on a charge of manslaughter. Indeed, the argument was that the evidence was such that the case should not have been left to the jury on a charge of murder, as there was simply no evidence of killing or, alternatively, the evidence was such that this Court should quash the conviction as unsafe or unsatisfactory.
The second complaint related to what was said to be a misdirection by the learned trial judge about the medical evidence and as to whether it was some evidence of a killing. The third area of complaint focussed on what was said to be the failure of the learned trial judge properly to direct the jury that, on the charge of manslaughter, the act must be intentional.
The fourth substantial area of complaint alleged the wrongful reception of the evidence of one Sylvie French, who stated that the deceased, Danijela Pavic, some four days before she died, had said, "You see me last time . . . alive; Mark is going to kill me." Finally, there was what was said to be failures by his Honour to comply with requests for various redirections. I will deal with each in turn.
Sufficiency of Evidence to go to the Jury
The Crown's case was that Mrs. Pavic died from the effects of a vasovagal attack some time during the evening of Thursday, 28 March, 1985, and that that attack was caused by the external stimulation of the carotid sinus of Mrs. Pavic by her son and that such stimulation was heightened because Mrs. Pavic believed that her son intended to harm her and she was in great fear of him.
The Crown relied on these circumstances: on the evening of 28 March, 1985, the appellant was alone with his mother at her home, in Torrens in the Australian Capital Territory, and at the time of her death he was in such close physical proximity as to enable him to apply external pressure to his mother's carotid sinus. There was evidence from which it could be inferred that she was in real fear that her son would cause her harm. Not only did the appellant have the opportunity to assault his mother by placing his hands around his mother's throat, and in this way applying an external stimulus to her carotid sinus, he had a strong motive to act in that way, found in the animosity and resentment he bore his mother which had existed for several years but which had been heightened by the recent sale by the mother of the family coffee shop business and of the trade secrets of that business. After the death of Mrs. Pavic, the accused placed the body in the back of her car, drove to his house and collected some concrete blocks, drove to a service station and purchased a nylon tow rope, tied two concrete blocks round her chest with the nylon tow rope, and deposited her body into Lake Burley Griffin. The accused, after the death of his mother, had said to an acquaintance, Peter May, "I have killed her". Prior to his mother's death, he had expressed the desire to "get rid" of his mother, had discussed with acquaintances what it would cost to "get somebody from Sydney to get rid of somebody else", and on Wednesday, 27 March, the day before his mother's death, he had spoken to one Bersinic of strangling his mother and putting her body in the lake. On Friday, 29 March, after his mother had died, he acted towards her friends and police officers as if he was unaware of her death. He pretended to assist in the search for her. In a conversation with police officers on Saturday, 30 March, 1985, that is to say after her death and before her body was found, he suggested that his mother may have committed suicide. He gave a detailed but false account as to his movements during the day and evening of Thursday, 28 March, 1985, and made a series of false denials concerning his presence on the occasion of his mother's death.
While there were no observable signs of the cause of death of Mrs. Pavic, one of the several possibilities of the manner of her death postulated by the medical witnesses was that she died as the result of external stimulation of her carotid sinus. Professor McCloskey, Professor of Physiology in the Faculty of Medicine of the University of New South Wales, said that of the possible causes of death, the one which he regarded as being the most probable was external stimulation of the carotid sinus reflex stopping the heart. He regarded that as being far more probable than a sudden, unexplained death with no post-mortem consequences.
It was the Crown's case that there was credible evidence capable of persuading the jury beyond reasonable doubt that the deceased had died from the effects of a vasovagal attack resulting from the external stimulation of her carotid sinus by the accused in the course of an argument between him and his mother.
The defence strongly challenged the evidence of May and Bersenic and, it seems to me, that challenge had some success. The evaluation of those witnesses, however, was properly a matter for the jury.
For the defence it was argued that to conclude that the cause of death was the external stimulation of the carotid sinus of the deceased was to engage in impermissible speculation. It was submitted that there were a number of hypotheses as to Mrs. Pavic's death: an unexplained natural cause; a vasovagal reflex occurring naturally; a vasovagal reflex triggered by a trifling incident; a vasovagal reflex by psychological or emotional stimulus; cardiac arrest due to emotion, fright, shock, or joy; asphyxia but not such as to leave any physical evidence; diver's reflex leading to the stopping of the heart when the body, particularly the face, meets cold water; vasovagal reflex by stimulation of the carotid sinus; or vasovagal reflex by physical stimulus other than by stimulation of the carotid sinus.
The learned trial judge had directed the jury that they could convict on a charge of manslaughter if they were satisfied beyond reasonable doubt that she had met her death as the result of a deliberate, unlawful and dangerous act on the part of the accused. It was submitted for the appellant that the first five hypotheses could very well explain her death and that it was only the latter four hypotheses which involved the possibility of any criminality on the part of the accused and there was no proper basis on which the jury could conclude beyond reasonable doubt that Mrs. Pavic met her death as the result of any one of those various causes. In short, there was no evidence on which a jury could conclude beyond reasonable doubt that there had been a killing.
The question left to the jury was whether Mrs. Pavic's death had a physiological cause that was the result of a deliberate, unlawful and dangerous act on the part of her son.
The fact that the accused caused the death of the deceased may be proved by circumstantial evidence: Peacock v. The King (1911) 13 CLR 619
The Crown says that the accused's statements and conduct after the death of his mother, with all the other evidence, are consistent only with his guilt: it is inconceivable that he would act that way if, without any assault by him on her that evening, she had collapsed at his feet as the result of natural causes which left no trace. He disposed of her body, it was said, because he feared that a post-mortem examination might establish that he caused his mother's death. There was medical evidence to the effect that post-mortem lividity might have concealed some bruising.
The case for the accused was that his conduct and statements after his mother's death were the product of panic, because of his fear that, in the light of the established animosity towards his mother, people would reach the wrong conclusion if his presence on the occasion of her death were known. Griffith C.J. in Peacock, supra, at p.636 referred to the observation in Best on Evidence (3rd ed.) at p.518:-

"Undoubtedly suppression or fabrication of evidence by a party accused of a crime, is always a circumstance, frequently a most powerful one, to prove his guilt. Too many instances have occurred of innocent persons alarmed at a body of evidence against them which although false or inconclusive they feel themselves unable to refute, having recourse to the suppression or destruction of criminative and even to the fabrication of exculpatory testimony."

This is a consideration properly to be borne in mind in the present case.

Griffith C.J. later in the same judgment at p.636 noted:-

"In my opinion the fair inference to be drawn is that the object in making away with a body is to prevent the discovery of some fact that would be apparent, if it were not made away with, and would be likely to imperil the life or liberty of the man who does it."

At the time Pavic disposed of the body, he did not know what the post-mortem was to reveal or, more precisely, in the context of the evidentiary significance of his conduct after his mother's death, he was not to know that it would reveal no natural cause of death, and no unnatural cause. At the time, he did not want the body discovered.
What a person would expect to happen is a matter for the jury's experience and assessment. In my opinion, however, the jury would have been entitled to hold the view that, in the vast majority of cases, the reason or reasons for a person's death are discoverable by a complete and competent examination of the body.
On Pavic's account, his reason for not wanting the body discovered was that people would wrongly suspect that he was responsible for his mother's death. Consistent with this reason, either Pavic did not consider, or considered and dismissed, the probability that a post-mortem examination would find a cause of death consistent with his account of events, and render such suspicions baseless. On the assessment of the inherent probabilities, Pavic, on his account, was doubly unlucky. Not only did his mother die without warning or apparent reason in his lone presence at a time which would engender suspicion of him, but also, the post-mortem examination revealed no natural cause of death which would vindicate his innocence.
In Plomp v. R. (1963) 110 CLR 234, Dixon CJ said at 243:-

"In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp's evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her."

In Mutual Life Insurance Co. of New York v. Moss (1906) 4 C.L.R. 311, Griffiths C.J. said at 317:-

"On charges of murder sometimes the question is whether or not the accused caused the death, and sometimes whether, if he caused it, he did so intentionally or accidentally. The existence of a motive may tend to show either the person in question did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; and in cases depending on circumstantial evidence, the question of probability may be most important."

Menzies J., in Plomp (supra) at 249, said of this "The statement that 'the existence of a motive may tend to show the person in question did the act simpliciter' is in my opinion sound law because it is sound sense."
He continued:-

"Similarly, in R. v. Ball (1911) AC47, Lord Atkinson said (at 68):- 'Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his 'malice aforethought', inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not'. It would be just as unrealistic to treat the presence of a motive for doing an act which, if it occurred at all, was done by the accused as irrelevant in determining whether he did it as to treat the absence of a motive as irrelevant to that determination; yet the absence of a motive is commonly relied upon as a circumstance tending in favour of accidental death as against suicide or in favour of a person accused of a crime. On the positive side in divorce proceedings proof of inclination is often used to establish that advantage has been taken of the opportunity to commit adultery."

In my opinion, on the entirety of the evidence, including the accused's unsworn statement, it was open to a jury to conclude that Pavic killed his mother, and to convict him of manslaughter.
Alleged Misdirection in relation to the Medical Evidence
It is said that the learned trial judge, in telling the jury about how they ought to use the medical evidence, fell into error such that the jury might very well have concluded that it was not properly open to them to find that Mrs. Pavic died of natural causes or because of circumstances in which Pavic had no part, or because of circumstances in which he played some part, but which did not involve criminal conduct amounting to manslaughter. This is said to be the effect of his Honour's direction to the jury in these terms:-

"Now I should tell you members of the jury, that as a matter of law it is incorrect to state that there is no evidence to support any of those explanations and it is incorrect as a matter of law to state that there is no evidence of a killing."

It is trite that the summing up has to be looked at as a whole and that it is impermissible to consider a single passage independently of the context in which it appears. This is particularly so in the instant case.
A trial judge must, of course, tell the jury what the law they have to apply is, and must not misdirect them as to the evidence. His directions concerning the evidence and the possible perception of those directions by the jury have to be assessed with a due appeciation of the dynamic quality of a criminal trial.
The manner in which the medical evidence was put by both defence counsel and the Crown is therefore important for a correct understanding of the directions that his Honour gave in relation to the medical evidence.
Counsel for Mr. Pavic, Mr. Purnell, at the end of his address to the jury said:-

"And, as I said to you before, you represent the community and I ask you, can you convict a man on a theory? Can you convict a man on a theory unsupported by evidence? And the medical evidence is, as I have said time and time again, there is no evidence of a killing."

The Crown Prosecutor, very early in his address, referred to the address by defence counsel, and to the submission that there was no evidence of a killing, and said:-

"Latterly, this morning, on that third proposition, Mr. Purnell has explained to you that what he has meant by that is that there is no medical or scientific evidence of a killing."

As to the proposition that there was no medical evidence of a killing, the Crown Prosecutor said:-

"You see, let us look at that statement. The doctors have said certainly there are no physical signs of a killing. There is no bullet hole. There is no stab wound, there is no massive bruising of the type that would survive four days in the lake. Certainly in that sense there is no evidence of killing. But those medical gentlemen gave evidence all right, they were not just making a speech, they gave evidence all right and they gave evidence of expert opinion and what that expert opinion came down to was that the most highly likely or probable cause of Mrs. Pavic's death was, in my submission this is what it comes to, and I will examine it in more detail later, this is what it comes to, the most highly likely, probable cause of Mrs. Pavic's death is that she was grabbed around the throat, pressure being applied to the area of the carotid sinus, set up a process that they described as a vagal inhibition which slowed the heart down falsely until it stopped, that such an incident could have happened very quickly and as a result of that, possibly accompanied by her great fear of her attacker, she was killed."

And later, the Crown Prosecutor, when he returned to the submissions of defence counsel, said:-

"The case that he presents substantially rests on the proposition that there is no medical evidence of a killing. I suggest to you that that is an erroneous way of looking at the effect of this evidence."

He then gave an analogy, which nicely illuminates the Crown case against the accused:-

"Say you had a house which was gutted by fire, completely destroyed, and the electrician tells you that he regularly checked that house and there were no electrical faults there. And a fire expert tells you that after carefully raking over the remains he can find no cause of how the fire could have occurred but the fireman tells you that in his view the most likely cause of such a fire in his experience was that someone lit it deliberately.

Well, say he went on to say to you, 'Of course I would have to concede that there might be some unexplained natural cause for the fire; spontaneous combustion; or it could have been lit by lightning, but in my view, as a fireman, it was lit deliberately.' Say the information went on, that the person who owned the place is interviewed and says, 'I know nothing about it.' And goes on to say, 'Perhaps a neighbour did it. . . . you to say, 'Perhaps a neighbour did it. . . . you investigate the neighbour and you find that he was not anywhere around at the time. So that puts that theory to one side. Say the owner was asked again and says, 'I was nowhere near the place at the time, I know nothing about it.' And you say it was suggested to him, 'You were seen disposing of a big bundle of charred clothing; pants and shirt all charred with smoke and damaged by fire.' And then he says, 'All right I was there. I was there but the house spontaneously combusted around my ears. And it is just coincidental that on that particular day the insurance renewal was due and I owed a lot of money to a lot of people but it still combusted spontaneously around my ears.'"

He later said:-

"What we are saying is that in the circumstances of him going there, having regard to the fact that it was that day, with the history of the events that had led up to it, it is beyond the realms of common sense for someone to claim that what happened to Mrs. Pavic, the reason for the termination of her life was pure chance.

The Crown Prosecutor frankly conceded:-

"The plain fact of the matter is, members of the jury, if the only evidence in this trial was the medical evidence, then of course Mark Pavic would

not be charged with murder; there is no question about that, but members of the jury, there is a

lot lot lot more than that. There is evidence of a reason to kill - not perhaps a motive in the way that you might understand it; a motive for gain or something like that, but a reason to kill."

And later,

"The Crown says that, apart from reason to kill in that sense that I have tried to explain it, undoubtedly the accused had the opportunity to kill. The Crown says that he disposed of his mother's body because he knew that the events that had so shortly before occurred included an attack by him which may well leave marks, signs - and even if they did not, the truth of the matter was that he had caused her death, that he had attacked her. And it would be natural in those circumstances for a murderer to believe that an examination of the body could prove the truth of what had happened. . . .

The Crown says that there is no other hypothesis which can be advanced consistent with his disposal of the body, other than that."

And then reference was made to his telling other people before that he wanted her dead, that he was willing to pay $5000.00 for a good job, that he was thinking of strangling his mother and throwing her in the lake, that he was extremely upset that she had sold out on the family, and that she had cut him out of her will. He said on many occasions that he "wouldn't get a penny" from her. He had admitted ultimately to being the person who had disposed of the body in the way it had been.

After the Crown Prosecutor had concluded his address, and before his Honour summed up, defence counsel had raised a number of matters with the learned trial judge.
At one stage of counsel's submissions to his Honour, the learned trial judge, said:-

"Mr. Purnell, if I may say so, you keep falling into what I consider to be an error. You keep saying there is no evidence of something and in the sense that there is no direct evidence of it, you are undoubtedly correct. The jury are entitled to draw inferences and the question is whether there is any evidence capable of the inference being drawn. That is a different matter altogether."

I have recited this history of the trial in some length so as to put in context the directions that the learned trial judge gave in relation to the medical evidence. His Honour said:-

"I want to say something now about the way in which you might approach the medical evidence. I will come to the evidence itself in due course, but I want to say something generally about the medical evidence. The medical evidence, of course, was called by the prosecution. No medical evidence was called on behalf of the defence. Of course, the defence does not have to call any evidence on that issue or any other issue. It is a question for you to weigh up the evidence in the Crown case.

There were three witnesses on the medical issue of the cause of death of the deceased. You may think that there was no great conflict between what any of them said, although there might be some conflict on some aspects. At any rate, you may think it not difficult to come to the conclusion that the medical evidence is to the effect that the deceased did not die of any known natural cause, and further, that the post-mortem examination did not, of itself, establish any possible or likely cause of the death.

However, the medical evidence based on the post-mortem findings goes further and postulates four possible hypotheses or explanations for the death, as I understand it. Now, I should tell you, members of the jury, that as a matter of law it is incorrect to state that there is no evidence to support any of those explanations, and it is incorrect as a matter of law to state that there is no evidence of a killing.

Whether there is evidence of killing is in the end a matter for me to decide as a matter of law and I have already made a decision in that regard. Whether the evidence is sufficient, however, for you to be satisfied beyond reasonable doubt of the guilt of the accused is another matter altogether and is a matter for your decision. Obviously, it is not a matter for any of the doctors or any witness to say there is no evidence of a killing in the wide sense, because the doctors do not have before them all the evidence that is before you as a jury.

The way the medical evidence should be approached and accepted in a court is this. The doctors, like all expert witnesses, base their opinion evidence on findings and assumptions and it is open to you, as the ultimate judges of the facts, not to accept the findings and assumptions upon which the doctors have based their opinions and accordingly, not to accept their opinions.

Further, it is open to you as a jury to take into account findings and assumptions which were not open to the doctors to take into account, before you decide that you should accept the opinion of the doctors without qualification. And if you make findings that the doctors do not take into account, they may lead you to reject or modify the medical opinion or, on the other hand and conversely, regard the medical evidence as strengthened.

So when it was put to you on behalf of the defence that there was no evidence of a killing, I would presume that what was really meant was that there was no direct evidence of a killing, or alternatively, that there was no evidence which you would find acceptable to support the conclusion that there had been a killing."

About this passage there are some matters that should be said. In the third paragraph, the statement "... it is incorrect to state that there is no evidence to support any of those explanations", obviously refers to evidence other than the medical evidence, which evidence tends to support one of the suggested explanations for the death. That makes it clear that it was to the totality of the evidence that his Honour was there referring and he was not restricting his comments to the medical evidence. This, it seems to me, is reinforced by the sentence in the next paragraph, where his Honour said:-

"Obviously it is not a matter for any of the doctors or any witness to say there is no evidence of a killing in the wide sense, because the doctors do not have before them all the evidence that is before you as a jury." (my emphasis)

Next, it seems to me that his Honour's direction, "it is open to you as a jury to take into account findings and assumptions which were not open to the doctors to take into account", is directing the jury to the non-medical evidence which has relevance to the cause of Mrs. Pavic's death, from which the cause of that death may be inferred. This is reinforced by his later comment that "if you make findings that the doctors did not take into account, they may lead you to reject or modify the medical opinion or, on the other hand and conversely, regard the medical evidence as strengthened."
Later, in discussing the evidence, he said:-

"If you turn to the medical evidence, if you accept that at its highest, it is that a likely cause of death was pressure in the area of the carotid sinus, as you have heard. And that death from that source could have been contributed to (by) fear or extreme emotion, bringing on a vaso vagal attack. Now, the Crown case is that you would be satisfied beyond reasonable doubt, that there was an act of the accused which was that of his placing his hands around the deceased's throat and applying pressure on either side in the area of the carotid sinus. And the Crown would ask you to take into account in coming to that conclusion not only the medical evidence and the admission that I have referred to, his statement to you here in court as to his presence at the time his mother fell, but also the statements of prior intention that had been made to Michael Bersinic and the other two people, Stephen Harmer and his lady friend."

He directed them that -

"...if the evidence left you in no doubt that there was some sort of deliberate behaviour on his part that was capable of bringing about the deceased's death, then that would be sufficient to constitute a finding that there was an act on his part in the relevant sense."

He said that finding that there was such an act, of course, is not enough. That act has to be related to the death in a causal way.

"As I say, the medical evidence is that the most likely cause of death was stimulation of the carotid sinus possibly contributed to by a vasovagal attack from fear or emotion. It is necessary for you before you can convict, however, to go beyond the medical evidence that that was the most likely cause of death. You look at the whole of the evidence, including the behaviour of the accused before and after the disappearance of his mother, statements of intent and so forth, and also any evidence which relates to or is capable of supporting a finding that the deceased was in a state of fear at any relevant time before her death. And it is for you and not for the doctors to decide whether you are convicted (sic) beyond reasonable doubt that the act of the accused, if there was such an act, caused the death of the deceased."

In my opinion, when one has regard to the course of the trial, the submissions of counsel for the accused and counsel for the Crown to the jury, the directions made by his Honour, read in context, were made to inform them of the correct position and to correct what was perceived by the learned trial judge as being an error in the submissions that had been made.
The jury in the face of the material to which I have extensively referred, in my view could have been left in no doubt that they had to be satisfied beyond reasonable doubt that there was an act of the accused which caused the death of the deceased. Further, as the directions given in respect of manslaughter show, the jury were correctly told that that act had to be a deliberate, unlawful and dangerous one and, if they were satisfied beyond reasonable doubt that such an act of the accused caused the death of Mrs. Pavic, but was not accompanied by an intention to kill, to cause grevious bodily harm, or with reckless indifference to life, their verdict should be manslaughter. The submission that his Honour's directions in this regard involved a misdirection, in my opinion, cannot be sustained.
The remaining grounds may be dealt with shortly.
Alleged Misdirection as to Intentional Conduct
It was said that the learned trial judge failed to direct the jury that any unlawful and dangerous act of the appellant causing the death of his mother had to be intentional.
This submission was based on a direction by the learned trial judge that:-

"I will also tell you, members of the jury, this, that it is possible that if you took a certain view of the evidence you could find that the accused commenced an act which caused the death of his mother but you were not satisfied as to the requisite state of mind.

And if you found that that act was both unlawful and dangerous, but as I say was not accompanied by the necessary intent or reckless indifference, the accused would be entitled as a matter of law to be acquitted of the crime of murder and convicted of the crime of manslaughter."

(It may be that the word "commenced" should read "committed".)

This direction of itself would be insufficient. However, it immediately follows the learned trial judge's direction on accident. The passage immediately preceding that set out above is in these terms:-

"... the accused does not carry any onus, he does not have to prove that his mother's death was an accident. But if you found there was an act on his part that did cause death, the Crown still has to prove that it was a deliberate act. And if it can be said to have occurred by accident, it is not an act for which he is in law responsible.

An act is regarded as accidental in this legal sense if it is something that is unforeseen and unforeseeable. So, if you were not satisfied that death was the result of any intention or deliberate conduct on the part of the accused then he is entitled to be acquitted."

Any suggestion that this could have been taken by the jury as relating only to the charge of murder is dispelled, in my view, by his Honour's redirections on manslaughter.
Having regard to the manifold repetition of directions as to the onus of proof, and the correct approach to circumstantial evidence, I have no doubt that the jury, before convicting on manslaughter, were fully aware of the need to be satisfied beyond reasonable doubt that Mrs. Pavic's death was caused by an intentional act on the part of the accused.
Admission of the Evidence of Sylvie French
Mrs. French was permitted to give evidence that Mrs. Pavic, four days before she died, had said to her "You see me last time ... alive. Mark is going to kill me." Mrs. Pavic was upset and crying. It was suggested to her in cross-examination that her account of the conversation in the committal proceedings was that Mrs. Pavic had said, "Mark want to kill me."
It was not suggested by either party that this evidence was evidence of an intention by the accused to kill his mother. It was admitted solely as tending to establish that Mrs. Pavic, at a time reasonably contemporaneous with her death, was in fear of her son.
The jury were correctly directed as to the proper use that might be made of this evidence, and while obviously capable of prejudice, it was within the trial judge's discretion to admit it. The evidence did have a relevance, in that there was medical evidence that fear might exacerbate the effect of a vasovagal attack brought on by stimulation of the carotid sinus.
A person's reasonably contemporaneous statements about his health or bodily feelings are admissible as evidence of that fact: Ramsay v. Watson (1961) 108 CLR 642
The rather narrow ground on which Senior Counsel for the appellant sought ultimately to challenge the reception of this evidence was that the alleged statements were not evidence of Mrs. Pavic's bodily or mental condition.
This basis of objection, in my opinion, is untenable. If one accepts that "I am afraid of Mark" is admissible to prove that the speaker is in fear of Mark, a statement "You see me last time ... alive. Mark is going to kill me" is, in my opinion, also admissible to prove that fact, as a matter of inference.
Failure by Trial Judge to redirect to correct errors.
This ground of appeal alleges that the learned primary judge failed, on request, to correct erroneous submissions by the Crown Prosecutor.
I am not to be taken as being satisfied that what are alleged to be errors in fact were so, but in any event, matters of that kind are discretionary. They depend very much on an assessment of the effect of what has been said and the importance of the point in the overall scale of the trial. In my opinion there is no basis for suggesting that the trial judge's discretion in this area miscarried: see Reg. v. Szach (1980) 23 S.A.S.R. 504.
Sentence:
It was submitted that the sentence of eight years imprisonment, with a non-parole period of four years, was manifestly excessive. No particular error of principle was relied on, but it was said that the sentence imposed did not fairly accord with the conduct of the appellant as disclosed by the acquittal on the charge of murder and the medical evidence.
Consistently with that verdict and the evidence, Pavic was sentenced on the basis that he had killed his mother by a deliberate, dangerous and unlawful act, but which act was not accompanied by an intention to kill, do grievous bodily harm or with a reckless indifference to life. Neither his treatment of his mother before her death, nor his conduct concerning her body after it, is a circumstance which can properly expose him to increased punishment, but, in my opinion, those factors were not irrelevant to the sentencing process in that on neither aspect was he entitled to claim lenient treatment.
I accept that the head sentence might be regarded as high, but, consistent with the well known principles on which an appellate court should interfere in the sentencing discretion, in my opinion, no basis has been shown for disturbing the sentence imposed.
I would dismiss the appeals against conviction and against sentence.

[1986] FCA 82

18 MARCH 1986