R v Allen - [2011] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ALLEN
[2011] SASCFC 40
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Peek)
3 May 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY - WHERE EVIDENCE POINTS TO MURDER OR NOTHING
Appeal against conviction – where appellant convicted by jury of murder of his wife – where alleged that appellant strangled his wife and faked a hanging suicide – whether trial Judge gave adequate directions relating to out of court statements by the appellant to the police – whether trial Judge gave adequate directions as to onus of proof and circumstantial evidence – whether trial Judge adequately put the defence case to the jury – whether evidence of marks and injuries observed upon the deceased properly admitted at trial – whether trial Judge gave adequate directions in relation to relationship evidence – whether trial Judge misdirected or failed to adequately direct in relation to manslaughter.
Held: (Kelly J, Doyle CJ concurring, Peek J dissenting)
Appeal dismissed – trial Judge adequately directed the jury in relation to out of court statements by the appellant – trial Judge adequately directed the jury in relation to onus of proof and circumstantial evidence - defence case was put fairly and adequately before the jury – trial Judge adequately directed the jury in relation to manslaughter – a single slip by the trial Judge could not have given rise to a miscarriage of justice.
Held: (Kelly J, Doyle CJ concurring, Peek J not deciding) - evidence of marks and injuries observed upon the deceased properly admitted – trial Judge adequately directed the jury in relation to marks and injuries.
Held: (Kelly J, Doyle CJ concurring, Peek J) - trial Judge did not err in directing jury that they were entitled to use their own experience in order to interpret the evidence of observations or marks and injuries on the deceased.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - TO CONSIDER FRESH EVIDENCE
Application to amend grounds of appeal to insert ground in relation to directions given about forensic pathologist’s evidence - application to adduce fresh evidence in relation to forensic pathologist's evidence.
Held: (The Court) – application to amend refused – application to adduce fresh evidence refused.
(Kelly J, Doyle CJ concurring) – trial Judge’s summary of pathologist’s evidence was careful, comprehensive and balanced – nothing in evidence sought to be led inconsistent with pathologist’s evidence at trial.
Juries Act 1927 (SA) s 55, referred to.
R v Weetra (2010) 108 SASR 232, distinguished.
Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; R v Joyce [1970] SASR 184; R v Perks (1986) 43 SASR 112; Stevens v The Queen (2005) 227 CLR 319; R v B and D (1993) 66 A Crim R 192; R v Crnjanin [1965] Qd R 324; R v Schmahl [1965] VR 745; R v Wilkes and Briant [1965] VR 475; R v Curtis (1991) 55 A Crim R 209; Pemble v The Queen (1971) 124 CLR 107; R v Manh (1983) 33 SASR 563; R v Perks (1986) 41 SASR 335; Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; R v Longley [1962] VR 137, discussed.
Mule v The Queen (2005) 79 ALJR 1573; R v Nieterink (1999) 76 SASR 56; Harriman v The Queen (1989) 167 CLR 590; Roach v The Queen Transcript of Proceedings [2010] HCATrans 288 (5 November 2010); Roach v The Queen Transcript of Proceedings [2010] HCATrans 166 (24 June 2010); Mraz v The Queen (1955) 93 CLR 493; Howe v The Queen (1980) 55 ALJR 5; Varley v The Queen (1976) 51 ALJR 243; Van Den Hoek v The Queen (1986) 161 CLR 158; Pantorno v The Queen (1989) 166 CLR 466; BRS v The Queen (1997) 191 CLR 275; Suresh v The Queen (1997) 72 ALJR 769; Gipp v The Queen (1998) 194 CLR 106; Fingleton v The Queen (2005) 227 CLR 166; R v Murphy (1988) 52 SASR 186; R v Earley (Unreported, Supreme Court of South Australia, King CJ, Millhouse and Olsson JJ, 6 April 1990); R v Ball, Bunce & Callis (1991) 56 SASR 126; R v Shinner (1993) 173 LSJS 384; Bedi v The Queen (1993) 61 SASR 269; R v Williamson (1996) 67 SASR 428; R v B, MA (2007) 99 SASR 384, considered.

R v ALLEN
[2011] SASCFC 40
Court of Criminal Appeal: Doyle CJ, Kelly and Peek JJ

DOYLE CJ: I have read the reasons of Kelly J and of Peek J. I would dismiss grounds 1, 4A, 4B, 6, 7 and 8. I would grant permission to appeal on ground 3, but would dismiss the appeal on that ground. I would refuse permission to appeal on ground 2 and ground 4. I agree with the reasons of Kelly J.
I need do no more than comment briefly on those aspects of the appeal on which Kelly J and Peek J differ. They are the question of whether the defence case was put fairly and adequately before the jury (ground 3, ground 4, ground 4A, ground 4B) and the Judge’s directions on manslaughter (ground 8).
I start with the trial Judge’s directions relating to the defence case. The duty of a trial judge is summarised by King CJ in R v Perks (1986) 43 SASR 112. The relevant passage is set out in the reasons of Kelly J. In considering what is required to comply with that duty, the trial judge has to consider the issues that arise, both of law and of fact, and how the case was fought. As King CJ notes, each judge will have his or her own style. Some judges prefer to provide a jury with more detail than others do. This will result in a longer summing up. Some judges prefer to be more economical, resulting in a shorter summing up. A fair degree of leeway must be allowed to a trial judge in deciding on the approach to be taken. In an appeal the issue for the court is whether, having regard to the issues, the evidence and how the case was fought, the trial judge has fairly put the substance of the defence case to the jury, has related the defence case to the evidence, and has explained or summarised the facts to the extent called for in the particular circumstances. It is not for the members constituting the court to impose their preferred style.
Concerns are often expressed by judges about a judicial tendency towards more detailed, and hence longer, summings up. The concern is that greater detail and greater length can be counterproductive. Juries’ powers of concentration may be exhausted. The issues to be decided may be concealed or buried in the detail. This Court should be careful not to discourage an approach that is economical and succinct, as long as the obligation to put the defence case fully and fairly to the jury is met.
In my respectful opinion, Peek J takes an approach which converts a preference for detailed instructions on the facts into an obligation. Also, at times his approach comes close to arguing the merits of the defence case, rather than ensuring that it is sufficiently put to the jury. I recognise that in his opinion that detail is called for in the circumstances of the case. I respectfully disagree. I do not consider that the Judge was required to deal with the matters identified by Peek J, in the manner in which and in the detail that he proposes.
In relation to the defence case, Peek J supports his approach by reference to some particular matters in relation to which I respectfully disagree. I consider that the Judge’s outline of the prosecution case was appropriate and balanced. It did not call for an antidote or counterweight. He regards as implausible a suggestion that Mr Allen first hung his wife from a rope, then separated her body and the rope so that in the end the indicia of suicide had been removed. It suffices to say that I do not regard the prosecution case as implausible.
As to the directions relating to manslaughter, I agree with Kelly J that the single slip made by the Judge could not have given rise to a risk of a miscarriage of justice. The fact that it was not raised by counsel suggests that it was not noticed. Apart from that, I agree with Kelly J that the comment that the Judge made on the facts was one that it was open to the Judge to make.
It is for those reasons, in brief, that on the matters on which Kelly J and Peek J differ, I agree with the reasons of the former.
KELLY J.
Introduction
After a trial by jury the appellant was convicted of the murder of his wife Melissa Michelle Allen.
The appellant now appeals against his conviction on a number of grounds. A single Judge granted permission in respect of grounds 1, 5, 6, 7 and 8 and refused permission in respect of grounds 2, 3 and 4. Ground 1 is a complaint that the trial Judge failed to give any or any adequate directions relating to out of court statements made by the appellant to the police. Grounds 2, 3, and 4, in respect of which permission to appeal was refused by the single Judge, are complaints concerning the adequacy of the trial Judge’s directions as to the onus of proof, circumstantial evidence, and the putting of the defence case to the jury. Particular complaint was made about the trial Judge’s directions in relation to the evidence of the pathologist Dr John Gilbert.
Grounds 5, 6 and 7 concern the directions given by the trial Judge about evidence of marks and injuries observed upon the deceased. These grounds raise the issue of the admissibility of and directions in relation to the evidence which went to establish the relationship between the appellant and the deceased.
Ground 8 is a complaint that the trial Judge misdirected the jury or alternatively failed to adequately direct the jury in relation to the alternative verdict of manslaughter.
At the hearing of the appeal the appellant sought permission to add a further ground of appeal allied to the complaint in ground 4, that the trial Judge failed to adequately direct the jury about the circumstantial evidence. In relation to the proposed new ground of appeal the appellant sought to introduce fresh evidence in relation to Dr Gilbert’s evidence, for the purpose of showing that there was a real risk that the jury were misled as to the effect of his evidence either by a misinterpretation or misconstruction of it by the trial Judge in her summing up. I propose to deal with this application when discussing ground 4.
Factual Background
Before turning to the specific grounds of appeal it is convenient to summarise the evidence relevant to the grounds of appeal. The prosecution case against the appellant was circumstantial. The appellant and the deceased were married in 2006. There was evidence that by early 2008 there were some difficulties in the marriage and in April of 2008 the parties separated and the appellant moved out of the matrimonial home. The deceased consulted a lawyer in early June 2008 about separation and property matters. On 27 July 2008 the deceased died from neck compression. The prosecution presented its case to the jury on the basis that the deceased was strangled by the appellant at approximately 1 pm on that date. It was the defence case that the deceased committed suicide by hanging herself and the appellant found the deceased in a shed at the rear of her home.
The prosecution led evidence about the state of mind of the deceased in the days and weeks prior to 27 July 2008 from which it invited the jury to draw the inference that the deceased’s state of mind was not such that she would commit suicide. There was also a body of evidence led about the relationship between the appellant and the deceased which the prosecution alleged established that the relationship had been a volatile one and that the appellant had in the past been violent to the deceased. There was also evidence from three witnesses who heard the scream of a female which corresponded with the time when the prosecution said the deceased must have died. The screaming included a cry for help. Ms Dennis, a next door neighbour, described the female’s scream as a bloodcurdling scream coming from the deceased’s shed and a male voice then saying in a harsh whisper “you fucking cunt”. Then there was silence. Other witnesses, who were fishing on a beach where the gulf meets a creek in the area adjacent to the houses where the deceased and the witnesses lived, heard a female screaming for help four or five times. The screams heard by the people fishing were such that they stopped fishing and ran back up the cliffs to try and pinpoint where the screams came from.
Evidence was led of three conversations the appellant had with police. Two of those conversations resulted in statements being prepared which were signed by the appellant. He admitted being with the deceased until about 12 noon on the day of her death. Initially he planned to return to the deceased’s house at about 5 pm but changed his mind and decided to return about 2 pm when he found the deceased hanging in the shed. He told police he pulled her down and then attempted to revive her by applying cardiopulmonary resuscitation. In his conversations with the police the appellant admitted to being violent towards the deceased in the past. He did not give evidence at his trial.
Ground 1: Out of Court Statements Made by Appellant
The appellant’s first complaint is that the learned trial Judge failed to give any or any adequate directions with respect to the out of court statements made by the appellant to the police.
The appellant signed two written statements, the first on 29 July 2008 and the second on 3 February 2009. Although the appellant gave more than one statement to the police, the statement of 29 July 2008 was the most comprehensive of the two and covered all matters relevant to the appellant’s account. The learned trial Judge read the entire statement of 29 July 2008 in the context of directing the jury about the defence case.
In commencing her directions to the jury on the defence case the trial Judge said:[1]
In this case the defence case emerges from the two narrative statements the accused gave police, the first of which was given on 29 July. He recounted having come back to the deceased’s home rather earlier than expected and to have found her hanging in the shed. I shall go to one of those statements in a moment, but the defence case also emerges from the suggestions put by Mr Boucaut to the various prosecution witnesses and from questions asked of witnesses by Mr Boucaut which elicited additional material in the case.
In a few words, as is plain to you, the defence is that on the day of her death the accused and deceased spent an agreeable morning working about the house, he painting black lines on the pointing on the house and she cleaning the house inside and sweeping and raking outside. He was due to return to her home at about 5 o’clock to cook dinner and he had planned to go and see Marcus Koch in that time, but instead of doing so he elected to go back earlier and at that time found the deceased’s body. He did not cause or contribute to her death.
Now, ladies and gentlemen, you have only heard the statements of the accused read to you once and, of course, counsel have referred to them. What I propose to do now is to read to you the first statement given by the accused to police on 28 July [sic]. You will remember there was a short conversation noted in brief by the police officer, I think it was Ward, at the hospital in Adelaide, but I am not choosing to go to that one because this one is far more comprehensive and given within two days of the deceased’s death and it seems that this really encapsulates what the defence case is.
[1] Summing Up at 29 – 30.
The appellant’s counsel submitted that the jury ought to have been directed about the use they were entitled to make of the two written statements signed by the appellant. Particular complaint was made about the failure of the trial Judge to direct the jury specifically that the exculpatory material to be found in the appellant’s statements could be used as evidence supporting his defence. It was said that the failure to give such a direction was all the more important where the appellant had not given evidence.
Counsel relied on an earlier decision of this Court in R v Weetra.[2] In Weetra the appellant was interviewed twice by the police. A transcript of what the appellant said to the police was read by way of agreed facts to the jury. The prosecution did not refer to those interviews in its address but the appellant’s counsel did, reminding the jury of what the appellant said to the police on various topics. The trial Judge only made one reference to the appellant’s police interviews in the summing up in the context of his summary of the prosecution case. In that context the Judge reminded the jury that the appellant gave the police a different version of a conversation he had with a witness.
[2] R v Weetra (2010) 108 SASR 232.
The Court concluded that in the context of that case the failure by the trial Judge to give any direction concerning the use which the jury might make of the appellant’s out of court statements to the police constituted a miscarriage of justice. White J (with whom Anderson J agreed) said:[3]
That is not to say that a direction will be required in all cases. There may be cases in which the accused gives evidence at trial and the potential significance of an out-of-court statement is subsumed by the oral evidence which the jury has heard. There may be other cases in which the out-of-court statement comprises only bare denials of the police allegations. But at least in those cases in which an accused does not give evidence, and the only explanation from the defence which the jury has before it comes from the out-of-court statement, some direction will usually be required.
[3] R v Weetra (2010) 108 SASR 232 at [14].
In Weetra the majority relied to a significant degree on the High Court judgment in Mule v The Queen.[4] It is necessary to understand the context in which the High Court decided Mule in order to understand the limits of the proposition for which that case stands. The out of court interviews contained inculpatory statements as well as exculpatory statements in relation to the possession by the accused of a prohibited drug with intent to sell or supply it to another. In that case the trial Judge in his summing up did refer to the use that the jury could make of the evidence of what was contained in the out of court statements. In the course of doing that the Judge contrasted admissions made by the accused with the exculpatory material. In the course of a quite comprehensive direction about the interview the trial Judge concluded with this comment:[5]
The denial — his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession, if you like, of possession, for example, against interest, doesn’t have the same evidential weight, but the accused’s denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit.
[4] Mule v The Queen (2005) 79 ALJR 1573.
[5] See Mule v The Queen (2005) 79 ALJR 1573 at [11].
It was that part of the direction which gave rise to the sole ground of appeal in Mule.
It was in the context of a direction having been given to the jury about the out of court statement that the High Court considered the complaint that the trial Judge ought not to have directed the jury that the exculpatory parts of the interview did not have the same evidential weight as the inculpatory part. In that context the High Court observed that there may have been some puzzlement on the part of the jurors, who, absent that direction, may have felt obliged to give equal value to everything that was said in the out of court interviews. When the remarks of the High Court are understood in the context in which they were made it is evident that the judgment in Mule is not authority for the proposition that in all cases the jury must be specifically directed that the exculpatory parts of an accused’s out of court statements are evidence in the trial. Mule is authority for the proposition that it is perfectly proper for a court when directing about an out of court statement made by an accused, to make it clear to the jury that the exculpatory parts of an out of court statement do not necessarily have the same weight as the inculpatory parts.

In Weetra little attention was given to the out of court statement by the accused. The only person to pay attention to the statement was counsel for the accused. The accused did not give evidence and although the trial Judge had given a strong direction to the jury about the status of out of court statements of witnesses generally, he did not refer at all to the accused’s out of court statement to the police except in the context of commenting that he had given a different version on another occasion. The facts in this case are very different to the facts identified in Weetra. Here, the out of court statement which encapsulated all of the material aspects of the defence case was brought to the attention of the jury by the trial Judge who read out the entire statement to them as part of her summary of the defence case.
The trial Judge did not, as she might well have, discuss with the jury the fact that the out of court statements of the appellant may not carry the same weight as sworn evidence, or that they were entitled to treat the exculpatory parts of the interview in a different way to the inculpatory parts. In my view the manner in which the trial Judge approached the out of court statements of the appellant in this matter was therefore favourable to the appellant.
There is no risk in this case that the jury may not have understood how they could use the appellant’s out of court statements. The importance of those statements to the appellant’s defence must have been obvious to the jury in light of the attention which both counsel and the jury paid to them. Each of the statements were read out during the trial. Both counsel in their respective addresses paid particular attention to what the appellant had said to the police in those statements. The trial Judge told the jury that the defence was best encapsulated in the statement of 29 July 2008, which was the most comprehensive statement made by the appellant concerning these events. She then read that statement in its entirety to the jury. In the course of their deliberations the jury asked for and were given the transcripts of both statements in their entirety.
I would dismiss this ground of appeal.
Grounds 5, 6 and 7: Relationship Evidence
Grounds 5, 6, and 7 raise for consideration the admissibility of and directions in relation to the evidence of marks, bruises and injuries observed by others on the body of the deceased. First it was said that the trial Judge applied the wrong test in admitting the evidence of those injuries at the trial. There was a further complaint that, the evidence having been admitted, the trial Judge misdirected the jury in telling them that they were free to use their own experiences to determine whether or not there was a connection between the injuries and marks seen on the deceased and the appellant. It was complained that in giving that direction the trial Judge effectively invited the jury to reason by way of propensity.
The first point which needs to be noted is that the remarks of the trial Judge complained of formed part of a general direction to the jury on the approach it should take to the evidence about the relationship between the appellant and the deceased. Those remarks included a specific direction to the jury that it was necessary for them to be satisfied first that the appellant was responsible for all or any of the injuries on Ms Allen before they could use them. The trial Judge directed the jury that if they were not so satisfied then they were to disregard the evidence of those injuries entirely. However the admissibility of this evidence and the directions must be assessed against the background of the issues which arose at the trial.
This was a case where there were two competing versions of how the deceased died. There was no dispute that the cause of death was neck compression. The prosecution case was that the appellant killed the deceased by strangling her with some form of ligature. The defence case was that the deceased committed suicide by hanging herself.
There can be no doubt that the relationship between the appellant and the deceased was a relevant issue at the trial. It is therefore unsurprising that the prosecution sought to lead evidence of the appellant’s behaviour towards the deceased in the months prior to her death.
That evidence came in the form of observations of others of various marks and injuries seen on the deceased in late 2007 and early 2008, an incident which occurred in about May 2008 and a text message sent by the appellant to the deceased in April 2008.
The submission that this evidence was not admissible and that the trial Judge applied the wrong test in determining to admit it, is contrary to well established authority.
In Wilson v The Queen[6] Barwick CJ said:
No doubt in the text books it is the inference of motive which is said to be open on evidence of bad feelings between the parties or of the terms on which they have lived. See Hale, Pleas of the Crown, vol. 1, p. 451, Halsbury's Laws of England, 3rd ed., vol. 14, par. 491, Phipson on Evidence, p. 151. But it is clear that such evidence may also provide material on which the fact of the killing may be inferred. See for example per Lord Atkinson in R. v. Ball; per Sir Lyman Duff. It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. Of that kind was the evidence in R. v. Barbour. It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. Here, there is no question of the remoteness in point of time of the occasions of which evidence of quarrelling was tendered and the time of the act charged, as was the case in Reg. v. Tsingopoulos. Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.
[Footnotes omitted]
[6] Wilson v The Queen (1970) 123 CLR 334 at 339.
The test for the admission of evidence of this nature is first whether it is relevant and if it is, whether the evidence sought to be led is more probative than prejudicial.
In R v Nieterink[7] Doyle CJ reviewed the authorities which establish that in certain circumstances evidence that discloses the commission of other offences, or that discloses at the very least some discreditable conduct on the part of an accused, if relevant to the issues at trial, is admissible without satisfying the test stated in Pfennig v The Queen.[8] Doyle CJ noted that the correctness of the decision of the High Court in Wilson has never been doubted.
[7] R v Nieterink (1999) 76 SASR 56.
[8] Pfennig v The Queen (1995) 182 CLR 461.
The evidence was not led as evidence of bad character or of a general tendency on the part of the appellant to use violence. The trial Judge specifically directed the jury not to use the evidence in that way.[9] The evidence was directly relevant to assist the jury in determining the critical issue in the trial which was whether the deceased died at the hands of the appellant or whether she committed suicide.
[9] Summing Up at 19.
The trial Judge’s invitation to the jury to use their own life experiences in evaluating this evidence was unexceptional. It is true that some of the injuries and marks observed on the deceased could not be directly sheeted home to the appellant, although there was no dispute that in about May 2008 the appellant had assaulted the deceased and caused her some form of injury. The appellant admitted as much to the police. However in relation to the nonspecific injuries and marks, the trial Judge specifically directed the jury that unless they were satisfied that the appellant was responsible for them, they were to disregard them entirely. This direction was also in accordance with well established authority. In R v Hissey[10] the Court said:
There is, of course, a distinction between direct evidence of violence by the appellant against the deceased, whether from eye-witnesses of the violence or from admissions by him, and evidence of marks or bruises seen on the deceased but not connected by direct evidence with the appellant. The latter class of evidence is only admissible if there is circumstantial evidence raising a presumptive inference that he was the author of the injuries (Shaw v. The Queen). As we have said, we think there was such evidence here.
[Footnote omitted]
[10] R v Hissey (1973) 6 SASR 280 at 289.
On the whole of the evidence here it was open to the jury to draw the inference that it was the appellant who had caused those injuries. The Judge directed the jury appropriately about this evidence.
I would dismiss this ground of appeal.
Ground 8: Directions on Manslaughter
It was submitted that the trial Judge either misdirected or failed to adequately direct the jury about the alternative verdict of manslaughter. Particular complaint was made about the following comment of the trial Judge:[11]
I emphasise that in practical terms there is little room in this matter for such a verdict. That is because the act of applying pressure to another person’s neck tends to point fairly unequivocally to an intention to kill or cause grievous bodily harm. But that is for you, not for me, to determine.
[11] Summing Up at 9.
Earlier when directing the jury about the second element of murder the trial Judge said:[12]
“Grievous bodily harm” simply means really serious bodily harm. It is a matter for you, but you could take the view that the application of pressure to a person’s neck for a period long enough for that person to lose consciousness would evince an intention to cause either death or serious bodily harm.
[12] Summing Up at 6 – 7.
Lest it be thought that I have overlooked the complaint about this particular passage I make it clear that in my view the failure of the trial Judge to include the word “really” before “serious bodily harm” at the end of that passage, does not amount to a misdirection. One slip made by the trial Judge in the course of otherwise accurate directions on the elements of murder and manslaughter in the context in which that slip occurred is of no moment.
It was said that the trial Judge’s directions on this topic undermined the jury’s role as the trier of fact and in reality withdrew the issue of manslaughter from them. I do not consider there to be any proper foundation for this complaint.
Very early on in her remarks to the jury and before coming to any specific topics, the trial Judge told the jury:[13]
If I say anything about the facts with which you do not agree, you should prefer and act upon your own view of the matter, because the facts and the way they are to be interpreted are your responsibility and no-one, judge or counsel, can exercise that responsibility for you.
[13] Summing Up at 1.
The trial Judge left the alternative verdict of manslaughter to the jury and gave accurate directions on the elements of manslaughter. Given the way in which the evidence unfolded at the trial and the fact that neither prosecution nor defence counsel had raised the issue of manslaughter with the jury, it is not surprising that the trial Judge commented as she did, that in practical terms there was in fact little room for a verdict of manslaughter. This is particularly so in light of the pathologist’s evidence about the cause of death. In the course of expressing his opinion that the cause of death was neck compression, Dr Gilbert said, that in the ordinary course of events, the act of applying pressure to another person’s neck could cause unconsciousness in 10 to 15 seconds, followed by death within three to four minutes. Dr Gilbert did add that there is some evidence that momentary pressure on a person’s neck could cause sudden cardiac arrest in less than that time. However there was no evidence in this case to suggest that that had occurred.
In the course of her direction about the alternative verdict of manslaughter the trial Judge made it plain that the issue was for the jury, not for the trial Judge to determine. Moreover she concluded her remarks to the jury by reminding them that there were three verdicts open to them, one of which was manslaughter. Nothing further was required.
Before leaving this ground of appeal I would add that there is nothing which prevents a trial judge from commenting upon the evidence in direct, even forceful, terms. As the Court (Bray CJ, Walters and Zelling JJ) in R v Joyce[14] said:
The second matter is that it seems necessary to say again that so long as a judge makes it plain to the jury that the decision on the facts is for them, so long as he commits no error of law and does not misrepresent the evidence, either by positive misstatements or by omission so grave as to make what is said misleading, so long as he puts the defence as opposed to all the arguments in support of the defence, then he is not debarred from expressing his own view about the facts, nor from expressing that view with a certain strength. There may, indeed, be cases of comment so extreme as to be capable in the opinion of the court of appeal of producing a miscarriage of justice, but strong expressions on the part of the judge will not necessarily carry the case into the forbidden territory.
[14] R v Joyce [1970] SASR 184 at 198.
Here the comments made by the trial Judge were made in the context of the evidence led at trial including Dr Gilbert’s evidence and the history of the relationship between the parties. This was not a case where there was any history of similar conduct in the past. The appellant did admit in his statement to the police that he had in the past grabbed the deceased “near her throat” and shook her to try and make her listen to him, however that was all.
This case was far removed from the facts in R v Perks.[15] There a compulsive alcoholic with a long history of violence towards his wife which had previously and consistently been associated with drinking, strangled his wife to death.
[15] R v Perks (1986) 41 SASR 335.
The trial Judge’s comments in this matter were made in the course of a careful, evenly balanced and succinct summing up. I would dismiss this ground of appeal.
Ground 3: Directions on the Defence Case
The appellant complains that the trial Judge did not adequately direct the jury in relation to the defence case. A particular complaint was made that the trial Judge did not adequately bring home to the jury the obligation of the prosecution to exclude suicide or third party involvement in the death of the deceased.
It was submitted in support of this ground of appeal that the trial Judge should have directed the jury’s attention to the evidence relevant to the exclusion of alternative hypotheses consistent with innocence, namely suicide or a third party’s involvement in the murder of the deceased. That evidence included the pathologist’s evidence that the ligature marks found on the deceased could have been caused by a high point suspension hanging, that some of the other injuries on the body of the deceased could have been caused by hanging and/or post‑mortem handling of the body, the results of the forensic examination of the shed in which the deceased was found, the evidence that the deceased had been depressed in the months leading to her death, the appellant’s denials and his behaviour after finding the body of the deceased, and the evidence of third party involvement which was said to include the fact that one of the witnesses heard a car start up and drive off at approximately the time when the deceased must have died and the fact that the appellant was not present at the time when the deceased must have died. The forensic evidence found in the shed included evidence of dust disturbance on a purlin in the roof consistent with a rope being strung over the purlin, a crate (possibly used in the suicide) which had been moved by ambulance officers, a number of chairs on which a shoeprint was located, evidence of three fibres, two of which could have come from a rope in the shed (possibly resulting from the rope being tied to the barbeque), fingermarks on the barbeque, the fact that there was no sign of a struggle in the shed, the weighting down of the barbeque and so on.
The complaints made in support of this ground of appeal raise for consideration the extent of a trial judge’s duty to put the defence case and whether that duty was, in the circumstances of this case, properly discharged.
In R v Perks[16] King CJ discussed the extent of the duty upon a trial judge in relation to the presentation of the defence case. He said:
It is not necessary, for the adequate presentation of the defence to the jury in the course of a summing up, that the judge should refer to every piece of evidence which counsel feels may support the defence case or to every argument which counsel puts to the jury. Whether to refer to any particular piece of evidence or to any particular argument is a matter for the judgment of the trial judge. A summing up is not inadequate simply because it fails to refer to some particular piece of evidence or some particular argument so long as the presentation of the case to the jury as a whole is fair and even handed.
…
Each judge has his own style of summing up. It is always possible to criticise the omission of reference to some piece of evidence or argument relevant to a defence. But it is no part of the duty of the trial judge to argue the case for the defence any more than it is his function to argue the case for the prosecution. What is required is that the judge put the substance of the defence to the jury and explain its bearing upon the elements of the charge. Generally an adequate presentation of the defence will require some reference to the version of the critical incidents given by an accused person who has given evidence. In the more complex cases, it may also require some reference to other evidence and the bearing of that evidence upon the issues of the case and the defence to the charge. Just how far it is necessary to go must depend upon the circumstances of each case and upon the judgment of the trial judge.
[16] R v Perks (1986) 43 SASR 112 at 115 – 116.
With those comments in mind it is useful to examine what the trial Judge did say to the jury in this matter.
Here the trial Judge explained the critical issue for determination by the jury very early in the summing up. Her Honour said:[17]
First, you must be satisfied that the accused caused the death of Melissa Allen. Now, of course, this is the critical element in this trial. It must be proved that the accused performed an act or acts which caused her death. To put that differently, suicide must be excluded as well as a killing performed by anyone else.
[17] Summing Up at 5 – 6.
In the very next paragraph when directing on the second element of the crime of murder the trial Judge went on:[18]
Now here the act causing death was, you might think, quite clearly neck compression. The issue, of course, as I have just said, is whether Ms Allen hanged herself or whether the accused caused that neck compression either by ligature or by applying the force of his hands or by other means. If you are satisfied of the first element, that the accused did cause Ms Allen’s death, you will have to go on to consider the second element and to determine whether the prosecution has proved that he acted consciously and deliberately.
[18] Summing Up at 6.

Before concluding her directions on the four elements of murder the trial Judge said:[19]
As I say, the central issue in this case has centred on the first element, proof that the accused caused the death of Melissa Allen.
[19] Summing Up at 8.
The trial Judge encapsulated the Crown case in the following paragraph:[20]
The Crown case, in essence, is that the screaming and noises heard by the three neighbours are inconsistent with suicide. The injuries found by Dr Gilbert are inconsistent with suicide. Only the accused claims to have seen Ms Allen hanging and his account does not bear scrutiny.
[20] Summing Up at 11.
In similar fashion, the trial Judge encapsulated the defence case as follows:[21]
In this case the defence case emerges from the two narrative statements the accused gave police, the first of which was given on 29 July. He recounted having come back to the deceased’s home rather earlier than expected and to have found her hanging in the shed. I shall go to one of those statements in a moment, but the defence case also emerges from the suggestions put by Mr Boucaut to the various prosecution witnesses and from questions asked of witnesses by Mr Boucaut which elicited additional material in the case.
In a few words, as is plain to you, the defence is that on the day of her death the accused and deceased spent an agreeable morning working about the house, he painting black lines on the pointing on the house and she cleaning the house inside and sweeping and raking outside. He was due to return to her home at about 5 o’clock to cook dinner and he had planned to go and see Marcus Koch in that time, but instead of doing so he elected to go back earlier and at that time found the deceased’s body. He did not cause or contribute to her death.
[21] Summing Up at 29.
She then said:[22]
You will remember there was a short conversation noted in brief by the police officer, I think it was Ward, at the hospital in Adelaide, but I am not choosing to go to that one because this one is far more comprehensive and given within two days of the deceased’s death and it seems that this really encapsulates what the defence case is.
[22] Summing Up at 30.
The trial Judge then read the statement which the accused gave to the police on 29 July 2008. That statement traversed the entire sequence of events in the appellant’s own words. It is important to remember that the appellant’s statement included his own detailed account of what he saw in the shed and what he did thereafter including the fact that he observed a rope which went up to a beam in the rafters (namely the purlin earlier referred to) and what he thereafter did in order to remove that rope from his wife’s neck.
It is important as well to note that in the course of summarising the evidence the trial Judge referred to a number of factual matters in different contexts. For example the evidence concerning the depression of the deceased was referred to by the trial Judge in the context of discussing the evidence about the deceased’s state of mind and the necessary directions in relation to that issue. When discussing Ms Dennis’ evidence, the trial Judge went into a great deal of detail including the important fact, as far as the appellant was concerned, that Ms Dennis heard a car starting up and driving away down the street towards the hospital.
The trial Judge made it perfectly plain that in order to convict the appellant the prosecution first had to exclude suicide or a killing by an unknown third party. That is what she said at the very commencement of the summing up. Thereafter the need to exclude suicide was a primary focus in the summing up. The evidence of Dr Gilbert was very important to that issue.
Her Honour paid particular and careful attention to the evidence of Dr Gilbert and to his opinions. She analysed the whole of Dr Gilbert’s evidence and correctly highlighted the significance of his evidence first from the point of view of the prosecution argument and then from the point of view of the defence. In the course of that quite comprehensive summary the trial Judge referred in detail to the assumptions which both counsel had put to Dr Gilbert.
Still later in the summing up the trial Judge reminded the jury in the context of counsels’ addresses of one critical aspect of Dr Gilbert’s opinion as far as the defence was concerned, namely that he did not purport to exclude that the ligature caused the cricoid fractures, the bruising to the strap muscles and the posterior muscles all in the one application of force. At the same time the trial Judge reminded the jury of the other important points made by counsel for the defence including the fact that there was plenty of evidence to indicate that the deceased was depressed and that her depression might have led her to take her own life and the submission by Mr Boucaut that a close analysis of the scream evidence, including in particular the evidence of Ms Dennis, might lead the jury to conclude that the screams had nothing to do with the death of the deceased.
In reality in order for the prosecution to prove the appellant’s guilt on the murder charge, the prosecution had to prove that the deceased did not commit suicide and was not killed by anybody else. Apart from the one witness who described hearing a car start up at around the time of the death of the deceased and driving down the street, there was no other evidence led at the trial which might have suggested that any unknown third party might have killed the deceased. As counsel for the respondent pointed out, there is an air of unreality about the approach taken by the appellant in relation to the possible third party involvement. It involves acceptance as a reasonable possibility that an unknown killer managed to kill the deceased, set up the shed to make it appear as if the deceased had committed suicide and then drive away within minutes of the murder. It is unsurprising that counsel for the appellant did not make such a suggestion. To the contrary the appellant’s counsel attacked the reliability of Ms Dennis both about the screams she said she heard and about the car. In reality the issue for the jury in this trial was whether the deceased died at the hands of the appellant or whether she died by committing suicide.
The appellant relied on the High Court decision in Stevens v The Queen[23] in support of this ground of argument. In that case the facts were that a man died at his desk from a single gun shot wound to the head at a time when only two people were present, himself and the defendant in that case. Even though defence counsel at the trial eschewed the defence of accident, that scenario was in fact first raised as a possibility implicitly at least in the very first conversation which the defendant had with the police. In that context the High Court determined that the trial Judge should have left the defence of accident to the jury not withstanding the conduct of the defence at the trial.
[23] Stevens v The Queen (2005) 227 CLR 319.
This was not such a case. For the reasons which I have discussed, none of the evidence led at trial permitted any inferences other than, either the appellant killed the deceased or the deceased died by suicide. That is how the case was conducted and it is in that context that the trial Judge directed the jury.
Perhaps her Honour could have said more about the factual matters including the results of the forensic examination of the shed, however the question might be asked why should she? All of the evidence about what was found in the shed was consistent with both the case for the prosecution and the case for the defence. The prosecution case was that the appellant killed the deceased and then set it up to make it appear as if she had committed suicide. The defence case was that the appellant discovered the deceased hanging from one of the beams in the shed. All of the evidence about the dust disturbance, the chairs in the shed, the possible shoeprint, the fingermarks on the barbeque, the lack of a sign of struggle in the shed, the weighting down of the barbeque were entirely neutral as to whether the appellant killed the deceased or whether she hanged herself.
The deceased’s unhappiness in the previous six months and her depression was a matter which received a great deal of prominence at the trial. Both counsel referred to it in their addresses. The trial Judge referred to it both in the context of counsels’ addresses and in the context of the directions about how to use relationship evidence generally.
Nothing further needed to be said. In my respectful view the trial Judge’s directions went to the heart of the issue for the jury to consider and I would grant permission to appeal in respect of this ground but would dismiss ground 3.
Grounds 4, 4A and 4B: Directions on Circumstantial Evidence
These grounds raise complaints about the trial Judge’s directions as to circumstantial evidence. It was said that the trial Judge misdirected the jury in a passage to which I have already referred when discussing ground 3:[24]
The Crown case, in essence, is that the screaming and noises heard by the three neighbours are inconsistent with suicide. The injuries found by Dr Gilbert are inconsistent with suicide. Only the accused claims to have seen Ms Allen hanging and his account does not bear scrutiny.
[24] Summing Up at 11.
As I understood it, the appellant’s argument, is that the sentence which says “the injuries found by Dr Gilbert are inconsistent with suicide” amounts to a misconstruction or a misinterpretation of the evidence of Dr Gilbert.
Allied to this ground of appeal was an application by the appellant to adduce fresh evidence and to add a further proposed ground of appeal alleging that there was a real risk of a miscarriage of justice as a result of the misconstruction or misinterpretation of the evidence of Dr Gilbert.
It was submitted in this context that at the very least the trial Judge’s comments in the impugned paragraph were ambiguous and as Dr Gilbert’s evidence was crucial at the trial there is a real risk that the jury may have relied on what was said to be the trial Judge’s misstatement of Dr Gilbert’s evidence in that passage. Before dealing with that submission I will deal briefly with the application to adduce fresh evidence.
After hearing argument about the proposed new ground, the Court refused permission and indicated that reasons for the refusal would be published later. It is convenient in the context of discussing this ground of appeal to give my reasons for refusing the application to adduce fresh evidence and to add the further ground of appeal.
It is not necessary to deal in any detail with the affidavit of Dr John Gilbert of 23 March 2011 which was tendered in support of the application except to say that there is nothing in that affidavit which is inconsistent with the evidence which Dr Gilbert gave at the trial. Moreover there is nothing in that affidavit, or any of the other material relied on in support of the application, which causes me to have any doubts about the accuracy of the trial Judge’s summation of Dr Gilbert’s evidence to the jury.
Even upon a cursory reading of the trial Judge’s comments in the impugned paragraph[25] the fundamental flaw in the appellant’s argument in respect of this ground is apparent.
[25] Summing Up at 11.
The trial Judge was plainly summarising the prosecution case, namely, that the injuries found by Dr Gilbert on the body of the deceased were inconsistent with suicide. If that was not the case then the appellant would never have been prosecuted on a charge of murder.
It is significant that in the context of the argument in support of this ground of appeal that no complaint has been made of the trial Judge’s analysis and summary of Dr Gilbert’s evidence.
As I have commented elsewhere the trial Judge’s summary of Dr Gilbert’s evidence was careful, comprehensive and balanced. In the context of summarising his evidence, the trial Judge actually used the language of Dr Gilbert in the course of summarising his opinions about various assumptions which were put to him. As I have also pointed out in the context of discussing ground 3 the trial Judge was careful to include in that summary the critical opinions expressed by Dr Gilbert about assumptions which the defence put to him.
For these reasons I joined in the order refusing permission for the appellant to adduce fresh evidence and to add the proposed new ground of appeal. For the same reasons I would refuse permission to appeal in respect of ground 4. I would dismiss grounds 4A and 4B.
Ground 2: Burden of Proof
Finally I deal with ground 2 which is a complaint that the trial Judge erred in relation to the directions she gave on the burden of proof. This ground of appeal was not developed in argument however counsel for the appellant relied on three passages in the summing up in contending that the trial Judge misstated the issue for determination in the trial as a contest between competing alternatives without making it clear that it was for the prosecution to prove its case beyond reasonable doubt.
Once again, as with other grounds of appeal in this matter, an examination of the impugned comments in their context reveals the flaw in the appellant’s argument. The first comment complained of was in a passage where her Honour in directing the jury about the second element of murder said:[26]
The issue, of course, as I have just said, is whether Ms Allen hanged herself or whether the accused caused that neck compression either by ligature or by applying the force of his hands or by other means.
[26] Summing Up at 6.
The second comment which is said to give rise to a misdirection was made in the course of directing the jury as to the use and effect of the evidence of the injuries and marks observed on the body of the deceased. In the course of that direction her Honour said:[27]
As I said, that is so because, just as evidence that the accused and deceased had a loving and respectful relationship could have been of value to you, were that the evidence, here, where the relationship seems to have been extremely volatile and where you might find that it was marked by violence, so is that evidence relevant to an evaluation of the two competing versions of how the deceased came to suffer death by neck compression.
[27] Summing Up at 17.
The last passage relied on by the appellant in support of this ground was made in the same context, namely while the trial Judge was directing the jury as to the proper use of the relationship evidence. In that context she said:[28]
And so I direct you as a matter of law that this evidence which has been referred to as evidence of relationship but which also includes the evidence of signs of injury observed about the deceased’s body from time to time, has been put before you because it might give you some insight into the nature of the relationship between the accused and the deceased. That in turn could be of use to you in evaluating the competing explanations for Melissa Allen’s death, and that is the proper use of that evidence.
[28] Summing Up at 18.
It can be seen from those three passages that all the trial Judge was doing was explaining in the context of the different legal directions she was required to give how particular evidence was relevant to a particular issue at the trial. This did not involve any misstatement or reversal of the onus of proof.
The trial Judge referred to the onus of proof accurately on a number of occasions throughout the summing up. She made it perfectly clear to the jury that there was no onus on the appellant to prove any matter.
I would refuse permission to appeal on this ground.
Conclusion
Some of the grounds of appeal which have been advanced in respect of this matter underscore the importance of assessing a summing up in a criminal trial as a whole and in the context of the real issues which arose at the trial.
When the summing up in this matter is read as a whole it can be seen that the trial Judge explained to the jury all of the critical issues for their determination, both factual and legal, in a clear, comprehensive, and succinct manner.
In more recent times there has been a marked trend towards lengthier summings up both on factual and legal issues. It is open to question whether juries are capable of absorbing in any meaningful way directions which sometimes extend for many many hours sometimes for days. The need for such lengthy directions when the trial has lasted only for two or three weeks must be seriously doubted.
Against that trend the summing up in this trial stands as an example that a summing up in a criminal trial of relatively short duration can be both succinct as well as comprehensive, clear and accurate.
For these reasons I would dismiss this appeal.
PEEK J. This is an appeal against a conviction of murder.
Introduction
The appellant was convicted by a jury of the murder of his wife who died on 27 July 2008 from neck compression associated with trauma most likely applied through the medium of a rope found near her body. A major issue in the case is whether the trauma was applied through a suicidal hanging or strangulation by another person.
At the time of her death, Mrs Allen was 25 years old and the appellant had just turned 29. She and the appellant had commenced a relationship in the year 2000, lived together in a jointly owned house at Osborne Street in Port Augusta since late 2002 (with some temporary separations) and married in July 2006. The parties had separated in April 2008 with Mrs Allen remaining in the former matrimonial home and the appellant moving out, but with the parties continuing to have contact with each other.
Evidence was led that Mrs Allen had suffered injuries during the course of the relationship and it was the prosecution case that the appellant was responsible for these injuries, such evidence being admitted as “relationship evidence” which could be taken into account in relation to the issue of whether the appellant had killed Mrs Allen. However, there was also evidence that Mrs Allen had exhibited significant signs of depression prior to her death, a matter upon which the appellant relied as supporting the hypothesis of suicide.
The appellant denied any involvement in the death. However, if the jury rejected that denial, a further issue arose as to whether the acts of the appellant were accompanied by the required mental intent for either murder or manslaughter.
The jurors retired to consider its verdict at 11.18am on 20 July 2010 and deliberated for the whole of that day[29] until they were permitted to leave court at 4.56pm pursuant to an order made under s 55 Juries Act 1927 (SA). They resumed deliberation at 10am on 21 July 2010 until returning a verdict of guilty of murder at 12.41pm on that day.[30]
[29] The jury returned to Court during the course of the day in relation to questions that they posed.
[30] The jury returned to Court during the course of the day to hear passages of transcript read.
The events of 27 July 2008
On the morning of the day of Mrs Allen’s death, 27 July 2008, the appellant was seen by passers-by painting at the former matrimonial home at Osborne Street (hereafter the Osborne Street property), Mrs Allen also being seen alive there at that time. The appellant was seen by one witness to leave on foot and, after his departure, Mrs Allen was seen alive there at a time quite close to 12.30pm by another witness, Mr Manuel, who was confident as to that time. The appellant was later seen to return on foot and then to emerge from the shed about five minutes later (being shortly before 2pm), raising the alarm, summoning help and stating that he had just discovered Mrs Allan’s body in the shed. He called the emergency number triple zero, which call was timed at 2.01pm and ambulance and police officers were called to the scene. The ambulance arrived at 2.08pm and the first police arrived at 2.21pm.

The body of the deceased was on the shed floor, partly obscuring a length of rope underneath which was unattached to any object at either end. Detective Mason seized the rope which was threaded through a loop tied at one end of it thus forming a running loop at that end.[31] This became exhibit P5 at trial.[32] The rope was consistent with being the cause of ligature mark on the neck of the deceased and both the prosecution and the defence proceeded on the basis that the rope had caused the death by neck compression of the deceased.
[31] T443, 446.
[32] She also seized three other lengths of rope which were found elsewhere in the garage and these collectively became exhibit P6 at trial.
The appellant remained at the scene but police later became concerned for his condition and, at their suggestion, he was taken to Port Augusta hospital later that day.[33] He was subsequently transferred to Royal Adelaide Hospital the next day in what was reported to be a catatonic state.
[33] Ms Meaney had been employed by the South Australian Ambulance Service for about 13 years and had been a paramedic for about 10 years when she attended at the Osborne property at 2.08pm on 27 June 2008. She initially attended to the body of the deceased and left at 2.34 pm. She was recalled to the scene in relation to police concerns for the welfare of the appellant and arrived at 3.43pm. She stated (at T381) that: “He certainly looked as though he needed to be assessed by a medical officer … He appeared to be very withdrawn and not aware of his surroundings. He wasn’t communicating verbally, wasn’t engaging in eye contact with anyone at the scene, so it was in his best interests to be transported for medical review.” She also felt him and noted that he was very cold to the touch. Dr George subsequently saw the appellant at the Port Augusta Hospital at 9am on 28 June 2008. He stated that the appellant was then lying in bed and not responding to verbal statements or to painful stimuli that he administered. He reviewed the appellant’s condition at 1pm when he was in the same state and, after discussing the matter with one of the psychiatrists there, decided to have the appellant transferred to the RAH for assessment which was done at about 5pm that day. (T733-736).
The version of the appellant
The appellant was spoken to by Detective Ward at the Royal Adelaide Hospital on 28 July 2008 commencing at 7.10pm. He was not then a suspect. His answers negated any involvement by him in the death. Detective Ward made it plain that he was unable to keep up with the appellant when making notes of his answers and comments.[34]
[34] Thus Ward observed: “In an effort to keep up with him, whilst he was responding, I’ve possibly no doubt there may be bits and pieces of that conversation missing but the main thrust of the conversation and what I could keep up with him was recorded in my notebook.”
Upon his release from hospital on the following day (29 July) the appellant voluntarily attended an arranged appointment with police and gave a long detailed account to Detective Brevet Sergeant Mason, again in statement form, of his movements leading up to the discovery of the body of Mrs Allen on 27 July and his subsequent conduct. This again negated any involvement by him in the death. It is to be noted that the written record of the statement was constructed by the police from the appellant’s answers to the various questions that the police chose to ask in the order that they chose to ask them; it follows that in answering what the police thought to be salient questions, the appellant should not be taken as proactively setting up a false defence.
Her Honour read this statement to the jury and portion of it was as follows:
On Thursday, 24 July 2008 I slept over with Mel. Mel rang me on my mobile phone and asked me to come around. It would have been close to 4 a.m. She was upset for some reason and asked if I could come up there. She would also go on about having me beside in bed as a comfort thing and not being alone. I went around straightaway and spent the night. Everything was good that night. The following day I worked on the house. I have been painting the outside of the house and was trying to finish it off. Friday night I ended up staying at Freddie’s ‘cause I had footy the next day and all my footy gear is at his place.
I saw Mel on Saturday, 26 July. I play footy for Central Augusta. I saw Mel from the footy field. She was standing in the car park with her friend, Laura McKinlay. I didn’t speak to her, I only saw her in the distance. She messaged me a couple of times that day to see if I was okay and not too sore from playing footy. She tried calling at one stage but I was in the shower at the time and didn’t answer. I didn’t spend the night that night.
Sunday morning, at about 3 a.m., I went around to Mel’s. I knocked on the door to see if she would let me stay the night but she wouldn’t. I have done this a lot of the time because she knows I don’t sleep. That night Mel had her brother staying. Her brother is Marcus Koch and he was staying because he had a lot of mates around at his own place partying and he wanted to sleep. When I knocked on the door and Mel answered I went inside with her for about 10 minutes. I went into her bedroom and laid down in bed with her. We were talking about us and our relationship and getting back together. She told me to leave as it was getting too late and she didn’t want to talk about it. She told me that we would talk about it another time. I left and went back to Freddie’s. I always walk from Mel’s to Freddie’s as it isn’t too far away.
Jimmy Martin also stayed at Freddie’s house that night. Jimmy and I got a taxi the next morning. I was drop off at Mel’s and he kept going in the taxi to his house. I would have gotten to Mel’s at about 8 a.m. on Sunday, 27 July 2008.
When I got there I started painting straightaway. Everyone was still asleep when I got there. I don’t have any keys to the house, only a key to the front door of the shed so I can get in and get to all my paint. I saw Mel first. I’m not sure what time this was, maybe 9 a.m., and Marcus slept in a bit longer. Me and Mel were talking all day about lots of different things but not really about us and our relationship. Mel swept the front porch first and I think she might have cleaned inside the house. She also swept under the veranda out the back. Mel was like a computer. She also had set things to do on certain days. I think Sunday is her cleaning day.
I watered her pot plants and we discussed cooking tea. Mel doesn’t cook. I do all the cooking for her. I told Mel that I would go home and have a shower and then I would come back and we could cook tea together. I left at about 12.15 p.m. I walked to Freddie’s from there, which takes me about 15 to 20 minutes.
When I got to Freddie’s, went in the shed, which is where I sleep, and tidied up. I then went outside and had a cigarette and a pipe of cannabis. I then put on some washing, including the clothes I was wearing while I had been painting. These are my painting pants which I wear all the time for painting. I had been wearing a blue or black Adidas T-shirt with a long sleeve white Bonds top underneath. My painting pants are grey with a black stripe down the outside of both legs. I was wearing my Jordans on, which are my basketball boots, white and blue, or a pair of sneakers, I can’t remember. I put these clothes in with a heap of other clothes. Then I had a shower. I got out of the shower or laid down on my bed in the shed for about an hour or watched a bit of the footy, Power and Fremantle were playing. Then I walked to Mel’s. I was supposed to be there at about 5 p.m. but I decided to go early because I don’t like being away from her. I’m always early. I left the washing in the washing machine.
I’m not sure what time it was when I got to Mel’s house. I went to the front door. The screen door was shut but not locked so I opened the door. The wooden door was open too. I just thought Mel was in the backyard still sweeping. I called out to her but she didn’t answer. I yelled out “Mel” about two or three times. I walked out the back and she wasn’t there. I tried the side door of the shed but it was locked. I opened the big gate and I saw that the shed sliding door was open about two to three inches. I pushed it open and saw Mel.
Mel was to my left. I don’t remember how Mel was. I’m not too sure how she was. I think she was sitting. She was sitting in the air like she should have been sitting on a chair but there was no chair there. I can’t remember how the rest of her body was. She didn’t have anything on her feet. I can’t remember anything about her really. It is all a bit of a blur. I saw the rope. It is our rope from the shed. I have used it in the past for tying stuff down but I hadn’t used it for a few months. I’m not sure where it was last put. It could have been anywhere in that shed. One end of the rope always had a loop at the end. I can’t remember if I tied the knot to create the loop or if it has always been there. I used the loop to help tie things down. There are no other knots in the rope.
The rope went from Mel’s head to the beam on the roof of the shed. I can’t remember which beam it was or if it went through more than one beam. It then went down to the barbecue. I don’t recall how it was tied to the barbecue. The barbecue had pots and bits or pieces on it. I don’t recall anything else being on the barbecue.
As soon as I saw Mel I ran to the rope end near the barbecue. I tried to undo the knot. I can’t remember whereabouts the knot was or whereabouts it was tied to the barbecue. The knot wasn’t easy to undo. I think it might have been knot on top of knot etc. I had to pull on the rope to loosen the tension so I could undo the knot. This caused Mel to lift a little. It was the only way I could get her down. I don’t know why I didn’t think to lift her and try and get the rope from around her neck. Mel fell to the ground. There was a thump. I’m not sure what she hit. Maybe the concrete. I picked her up. I can’t remember if I picked her up from behind or from in front. I had her in my arms and tried shaking her and yelling at her. I was trying to get her to walk and wake up. I then fell over with Mel in my arms. I can’t remember which way I fell but we both hit the ground. I don’t have any injuries from this fall. I picked her and stood up with her. I tried shaking her to get her to wake up. Our dog Buzz, the Rottweiler, was in the shed with me. He had followed me around there because I didn’t shut the gate in the back yard. When I was shaking Mel Buzz came and nipped me on the back of one of my legs. I’m not sure which one. He never left a mark on me. I think he also tried to bite Mel on the leg but I’m not sure if he did or not. He must have thought that we were fighting, which is why I think he bit us.
Mel and I fell over a number of times. I did this maybe two or three times. I fell on the ground near the freezer. I took the rope off from Mel’s neck and left it there. I knew Mel wasn’t responding so I left Mel there and ran straight across the road to Ashleigh’s house to get my sister-in-law because she is a nurse. My sister-in-law is Gloria Johnston, but she wasn’t home, she was at work. Instead, Ashleigh was there with my sister, Shelly, so they both came over and helped. I can’t remember what I told them. I know I told them something about Mel. Ashleigh’s kids were there at the house and they were going to call for an ambulance.
They both came over and they started CPR. I then rang for an ambulance because Ashleigh’s kids hadn’t. Shelly was doing chest compressions and Ashleigh was doing the breaths. I’m not sure how long this went for until the ambulance got there. The ambulance got there and shortly after the cops rocked up. I can’t really remember anything after that. I remember waking up in Royal Adelaide Hospital. I do remember bits and pieces at the airport in Adelaide but I think I was sedated. I was released from the hospital sometime today and Freddie brought me back to Port Augusta.[35]
[35] It can be seen that the appellant essentially asserted that he was by himself at his own home mainly watching football on television between the time that he had last left the Osborne Street property that morning when his wife was alive until he returned and discovered her body shortly before making the triple zero call at 2.01pm. Whether the lack of any evidence at trial of any sighting of him in the interim could be viewed as something of an alibi or whether he could (and did) return unobserved was a matter of debate at trial. In all the circumstances, including the fact that there is no Ground of Appeal asserting an unreasonable verdict, in the present circumstances I do not consider it necessary to consider this aspect further.
The appellant did not give evidence at his trial and relied upon the above account.
The grounds of appeal
The appellant’s grounds of appeal essentially complained that:
·First, her Honour failed to give adequate directions regarding the use of the appellant’s statements to the police (Ground 1).
·Second, her Honour erred in admitting evidence as to observations made by witnesses of marks or injuries on Mrs Allen prior to the date of her death and failed to give adequate directions as to this matter (Grounds 5, 6 and 7).
·Third, her Honour failed adequately to “put the defence case” including a failure to give adequate directions as to the hypothesis of suicide (Grounds 3, 4, 4A and 4B).
·Fourth, her Honour failed to give adequate directions as to the possible alternative verdict of manslaughter including in relation to the respective mental intents required for murder and manslaughter (Grounds 2 and 8).
The appellant required permission to amend the grounds of appeal and permission to appeal in relation to some of the grounds. I would grant permission to amend the grounds of appeal and, in so far as may be necessary, grant permission to appeal on each of grounds of appeal 1 to 8.
During the course of the hearing of the appeal, the Court heard an application to adduce fresh evidence. The Court refused that application and also refused permission to add a further ground 9 of appeal in relation to that proposed evidence.
Before proceeding further, I emphasise that there is no ground of appeal complaining that the verdict is unreasonable having regard to the evidence (and nor do I suggest that there should have been such a ground). The point of my observation is that, in the circumstances, I do not consider it necessary expressly to set out a detailed survey of the whole of the evidence in the case. Rather, I will simply refer to important parts of the evidence constituting a background against which the extent and nature of required directions as to the defence case can be delineated.
Directions as to the appellant’s statements to police
Ground 1 of appeal is as follows:
The learned trial Judge erred in that her Honour failed to give any or adequate directions regarding the out of court statements made by the appellant to police.
One aspect of this ground was the complaint of Mrs Shaw QC, Senior Counsel for the appellant, that her Honour failed to give adequate directions as to the status of the appellant’s exculpatory statements to the police and she largely relied upon the recent decision of this Court in R v Weetra.[36] However, in my view that decision proceeded on the basis that it was unclear in all the circumstances of that case that the jury would have been aware that they should take the exculpatory statements of the accused into account as evidence. An important feature was a pattern of directions which first stressed that the jury were only to act on “evidence” before them and then was suggestive of the proposition that “evidence” was limited to oral evidence given in court. Although this was undoubtedly not the subjective intention of the learned trial Judge in that case, it was the danger that the directions might be so interpreted by the jury that led to the verdict being overturned.[37]
[36] (2010) 108 SASR 232.
[37] R v Weetra (2010) 108 SASR 232, 235-236 [16]-[18]; 243-245 [64]-[72]; 252 [94]-[95].
By contrast, in the present case the statements of the appellant were referred to during the course of the trial as “evidence”, the learned Judge specifically referred to the appellant’s statements as “the defence case” and there was no possible interpretation of her summing up suggestive of the proposition that the jury could not take the exculpatory statements into account. In my view, there was no danger that the jury were not aware that they should take the exculpatory statements of the accused into account as part of the evidence in the case.
I would therefore reject this first aspect of ground 1 of appeal. However, there is another aspect of this ground to be considered, namely whether her Honour gave adequate directions as to particular portions of the statement and their significance and bearing upon the issues in the case. I consider that the appellant is on much more solid ground here but I find it convenient to further consider this aspect of ground 1 below in conjunction with the broader complaint that her Honour did not adequately put the defence case.
Marks or injuries seen on Mrs Allen prior to the date of her death – “relationship evidence”
Mrs Shaw complained that her Honour erred in admitting all or some of the prosecution evidence as to observations made by witnesses of marks or injuries on Mrs Allen prior to the date of her death or, in the alternative, failed to give adequate directions as to such evidence.
There were several sightings of marks upon the body of the deceased in the period leading up to her death by different persons as well as an abusive text message from the appellant.[38] There was no suggestion as to who, other than the appellant, may have been responsible for the marks except in relation to one sighting where the deceased herself had explained the marks on the basis of falling over a dog. The appellant admitted that there were quarrels and some violent conduct on his part which could have led to the inflictions of some of the observed injuries or marks.
[38] The appellant agreed by way of an agreed fact that he had sent a text message to the deceased on 24 April 2008 which included a reference to her as the one he loved but also a threat to bash her.
In Wilson v The Queen[39] Menzies J (with whom Owen J agreed and McTiernan J substantially agreed) stated:[40]
Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? … To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.
[39] (1970) 123 CLR 334.
[40] Ibid 344.
In Wilson, evidence of quarrels, a throwing to the ground of the deceased by the appellant, statements by the appellant and statements of the deceased[41] in the above context were all admitted on the above basis. Wilson has been consistently followed by the High Court and in many State Court decisions including the decision of this Court in R v Hissey[42] which in turn has been consistently followed locally and by the High Court in Harriman v The Queen.[43]
[41] Accusatory statements by the deceased raises additional considerations, but they were admitted in the particular circumstances in Wilson. This complicating feature is absent from the present case.
[42] (1973) 6 SASR 280.
[43] (1989) 167 CLR 590, 630-633.

Thus White J distinguished the situation of a weapon such as a gun, knife or club aimed at a vital spot (where an intention to inflict at least grievous bodily harm might be more readily inferred) and stated:[84]
However, where the particular assault is of a less obviously dangerous nature, for example, performed with the hands in the form of blows to the face or temporary pressure to the neck, the distinction between an intention to do “grievous bodily harm” and to do “serious bodily harm” can become significant and less of a semantic difference. …
…
When the cause of death is strangulation and the accused person has previously indulged in physical violence and struggle without causing grievous bodily harm, the specific intention with which the pressure was applied to the neck on the particular occasion resulting in death can be at least ambiguous, especially where the mind and will may be clouded by intoxication. The jury should be directed that the specific intention must be either to kill or to cause “grievous bodily harm”, and not just “serious bodily harm”, in such circumstances.
(Emphasis added)
[84] Ibid 345-346.
His Honour later concluded :[85]
His intention at the time of holding her throat in a physical struggle when he was intoxicated and in the habit of resorting in that state to some form of violence against her had to be interpreted by the jury against directions using the words “serious bodily harm” and not “grievous bodily harm” or “really serious bodily injury”. The nature of the attack with the hand was in that twilight area where the words used in the directions were of special importance; the jury might have more readily come to the conclusion that the appellant had the intention to murder than if the higher test or phrases had been used.
[85] Ibid 348.
Similarly, King CJ stated:[86]
The deceased died as a result of manual strangulation. In order to prove murder the prosecution had to prove that in applying force to the throat of the deceased the appellant intended to cause death or grievous bodily harm. The appellant’s intention is a matter of inference from his actions. …
…
I refer briefly to the learned Judge’s use of the expression “serious bodily harm” in place of the conventional “grievous bodily harm”. I think that there has been a tendency, which I have shared, to assume without proper consideration that “serious” is a synonym of “grievous”. I am sure that I have frequently used the expression “serious bodily harm” as synonymous with “grievous bodily harm”. Having heard the argument on this appeal and reflected on the matter, I have reached the conclusion, however, that in some factual situations the expression “serious bodily harm” may mislead a jury into regarding the degree of harm which must be intended in order to constitute murder, as less serious than the law actually requires. Like White J I consider that the conventional expression “grievous bodily harm”, despite its somewhat archaic ring, should be adhered to. If the meaning of “grievous” is to be explained, the expression “really serious” rather than merely “serious” should be used. No doubt in many factual situations “serious bodily harm” would sufficiently indicate the required intention. There may well be some factual situations, however, in which the use of that expression would amount to a misdirection. The safer course, in my opinion, is to use the phrase which is incorporated in the classical definitions of the crime of murder, namely “intent to do grievous bodily harm”, with or without the explanation that “grievous” means “really serious”.
[86] Ibid 337.
Of course, in Perks the difficulty was exacerbated by the additional complication of the possibility of intoxication clouding the judgment of the accused. As to this additional matter, there is certainly no evidence of intoxication in the present case but its absence does not obviate the basal problem. In any event, it may well be that there is an equivalent additional cloud over the judgment of the present appellant to be considered, namely the stress engendered by the difficulties of the separation from Mrs Allen. The words of the prosecutor in the present case emphasised that very thing. He said:[87]
The prosecution case is that the accused, in an outburst of perhaps pent-up anger or some frustration, physically overpowered Mrs Allen most likely using the noose, that is a long length of rope, as a ligature around her neck and strangled her. … The prosecution suggest that this relationship was one where the depths of emotion involved in the way that these two people dealt with each other was such that the barrier between words and actual physical violence had had been breached. The depth of troubles between them was such, the prosecution say, that the arguments between them had had the capacity to flare-up into sudden acts of violence.
[87] T774.
The directions given by the learned trial Judge
With the above matters squarely in mind, I turn to her Honour’s directions which were as follows:[88]
The next element relates to the intention of the accused. The prosecution must prove that in applying pressure to the neck of the deceased – in whatever way you find he did, if you do find that – his intention was either to cause death or to cause grievous bodily harm. “Grievous bodily harm” simply means really serious bodily harm. It is a matter for you, but you could take the view that the application of pressure to a person’s neck for a period long enough for that person to lose consciousness would evince an intention to cause either death or serious bodily harm.
Having said that, if you were satisfied that the accused caused the deceased’s death, but you were not satisfied beyond reasonable doubt that in doing so he intended to cause death or grievous bodily harm, then the alternative verdict of manslaughter would be available to you. I shall return to say something about that when I have dealt with the elements of murder.
Going back to this issue of intention, though, an intention to kill or cause grievous bodily harm can, like any intention, be formed in an instant. The intention does not need to be longstanding. The killing does not need to be premeditated. Since we are not able to look into a person’s mind to deduce what his or her intentions at a particular time was, it is necessary to look at all the surrounding circumstances in which a particular act was accomplished. Those circumstances include the nature of the act itself, what was said, if anything, at the time the act was performed, and what was said and done by the person performing the act after it was accomplished. All those things are relevant to the issue of intention.
(Emphasis added)
[88] Summing up, 6-7.
Her Honour later returned to the topic of manslaughter and gave this further direction:[89]
Now, I mentioned that there is an alternative verdict available to you in this case; namely, a verdict of manslaughter. It has not been mentioned by counsel because in the way both prosecution and defence have presented their cases, the verdict would either be guilty of murder or not guilty of anything. However, technically the alternative verdict of manslaughter is open to you and it would arise in this way. If you were satisfied beyond reasonable doubt that the accused deliberately caused the death of Mrs Allen by strangling her and that he did so unlawfully and his act of strangling her was dangerous in the sense that a reasonable person in his position would have realised that his conduct would expose the deceased to an appreciable risk of serious injury, then the accused would be guilty of manslaughter. So you will see that in order to bring in this verdict, you would need to be satisfied that the accused caused the death and that he did so deliberately and unlawfully, and of course those are the first, second and fourth elements of murder. But if you are not satisfied that he intended, in strangling her, to cause her death or grievous bodily harm, but you were satisfied that his act of strangling was dangerous in the way I have defined that to you, then you would be entitled to bring in this verdict of manslaughter.
I emphasise that in practical terms there is little room in this matter for such a verdict. That is because the act of applying pressure to another person’s neck tends to point fairly unequivocally to an intention to kill or cause grievous bodily harm. But that is for you, not for me, to determine.
(Emphasis added)
[89] Ibid 8-9.
In my view the first paragraph of the above directions (commencing “The next element…”) contains two related errors and the final paragraph (commencing “I emphasise that in practical terms…”) contains a further error. The cumulative effect of these errors renders the directions defective. My reasons follow.
The first error in the first paragraph
The first error in the first paragraph is that her Honour ultimately left the matter of the required minimum mental element to the jury as “serious bodily harm”. No doubt that is an unintentional slip and if the summing up was a set of reasons given by a Judge on a trial by Judge alone it could be easily so treated and passed by. However, a jury is not to be presumed to have knowledge of all of the requirements of the criminal law and there is no reason to believe that the jury would assume that the Judge had simply misspoken here. In my view, it is more likely that the jury would perceive the progress from “grievous bodily harm” to “really serious bodily harm” to “serious bodily harm” as the Judge taking an archaic doctrine (best left to the Judges) and assisting them by simplifying or modifying it for application to the facts of the particular case before them.
It is important to note that her Honour never directed the jury as to what “grievous bodily harm” actually means or what is required to be proven to establish it. The jury was given no background learning or exposition of concepts against which they might ponder differences between “grievous” and “serious” and, in that vacuum, the word “really” would have been of little value to them in any event.
The second error in the first paragraph
The second error in the first paragraph is that her Honour directed thus:
It is a matter for you, but you could take the view that the application of pressure to a person’s neck for a period long enough for that person to lose consciousness would evince an intention to cause either death or serious bodily harm.
(Emphasis added)
What troubles me here is the use of the words “would evince” rather than “could evince”. It is well recognised that the erroneous use of the word “would” can be quite serious since it may have the effect of withdrawing a live issue from the consideration of a jury.[90] I appreciate that the present passage is introduced by the phrase “It is a matter for you” but I do not think that this phrase here has the effect of notionally converting “would” to “could”. Rather, it seems to me that the operative effect of the words “It is a matter for you” is upon the question of the freedom of the jury to accept or not accept a particular view which is then set out, rather than to cast doubt on the legitimacy of the view itself. In other words, the jury may well have understood the direction along the following lines:
It is a legitimate view to take that the application of pressure to a person’s neck for a period long enough for that person to lose consciousness would evince an intention to cause either death or serious bodily harm – but it is a matter for you whether you decide to take that view.
[90] For example, in the area of directions on the subjective element of provocation to reduce murder to manslaughter a number of convictions of murder have been set aside due to an erroneous direction requiring that certain conduct “would” (rather than “could”) cause the accused to lose control. Similarly, convictions of various charges involving proof of specific intent have not infrequently been set aside due to an erroneous direction requiring that certain conduct “would” (rather than “could”) prevent the accused from forming the required specific intent.
That this is so is strongly reinforced by her Honour’s later direction in the last paragraph reproduced above where his Honour said in the context of a manslaughter verdict:[91]
I emphasise that in practical terms there is little room in this matter for such a verdict. That is because the act of applying pressure to another person’s neck tends to point fairly unequivocally to an intention to kill or cause grievous bodily harm. But that is for you, not for me, to determine.
(Emphasis added)
[91] Summing up, 9.
In the present case the shocking nature of the allegation of murder hardly needs to be emphasised. The jurors may well have already taken the view that the application of pressure to a person’s neck would evince an intention to cause either death or “serious bodily harm”. If so, and if it was “a matter for them”, they would no doubt be happy to continue to hold that view – and act upon it.
What was in fact required was a clear direction that it was not legitimate to hold or act upon such a view and this was particularly so in the circumstances of the present case where, first, these misdirections had occurred and, second, it was alleged that the appellant had previously inflicted serious rather than grievous harm on his wife before as discussed above.
Her Honour’s directions as to manslaughter
The complaints discussed above could, of course, be argued simply by reference to the requirements of a safe conviction for murder and entirely without reference to the matter of manslaughter. However, they have in the present case been argued in the context of the question as to whether her Honour correctly delineated the differing mental elements of the crimes of murder and manslaughter.
It is understandable that senior counsel should have taken that course because the decisions of the High Court in Gilbert v The Queen[92] and Gillard v The Queen[93] have made it clear that the decision to which a jury may come on a particular issue (say, guilt of murder) may not be solely referable to the terms of the directions that directly relate to that particular issue; rather, the jury may take into account the availability of alternatives even though, as a matter of strict logic, such availability should not matter. Thus, in Gilbert v The Queen,[94] Gleeson CJ and Gummow J said:[95]
[13]The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
[92] (2000) 201 CLR 414.
[93] (2003) 219 CLR 1.
[94] (2000) 201 CLR 414.
[95] Ibid 420.
Their Honours referred to statements by members of the High Court in Mraz v The Queen[96] and continued:[97]
[16]These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences.
[17]When, in Mraz, the majority referred to “ignoring the realities of the matter”, one of the contemporary realities to which they were referring was the death penalty. That was why, tactically, defence counsel might prefer to conduct a homicide case on a “murder-or-nothing” basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.
[96] (1955) 93 CLR 493.
[97] Gilbert v The Queen (2000) 201 CLR 414, 421
Similarly, Callinan J said:[98]
[101]The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.
[98] Ibid 441.
The problem in the present case is not that the possibility of a manslaughter verdict was positively withdrawn from the jury as in Gilbert and Gillard. Rather, the directions were here such that an erroneous approach to the crime of murder was in effect carried over into an erroneous presentation of the choice as between murder and manslaughter. Further, the problem was compounded by another error, namely a suggestion that any act of applying pressure to the neck signified an intention to kill or cause grievous bodily harm, that is to say, the required mental intent for murder. Thus in her Honour’s directions in relation to manslaughter (reproduced in whole above) the following passages in bold are to be emphasised:
…However, technically the alternative verdict of manslaughter is open to you and it would arise in this way. …
I emphasise that in practical terms there is little room in this matter for such a verdict. That is because the act of applying pressure to another person’s neck tends to point fairly unequivocally to an intention to kill or cause grievous bodily harm. But that is for you, not for me, to determine.
(Emphasis added)
The point is that her Honour here erred in directing that “applying pressure to another person’s neck tends to point fairly unequivocally to an intention to kill or cause grievous bodily harm”. As was emphasised in R v Perks, simply applying pressure to the neck is not to be so regarded. One must be very careful in seeking to draw inferences as to intention beyond reasonable doubt from the performance of such conduct. In this respect, one should also have regard to the following passage in the judgment of Gleeson CJ and Callinan J in Gillard v The Queen:[99]
[29]In the present case, while it was well open to a jury to find that the appellant foresaw that Preston might shoot Knowles, or others in the repair shop, it was not inevitable that, properly instructed, and given manslaughter as an alternative to consider, they would find that he foresaw that Preston would act with intent to kill or cause grievous bodily harm. It is difficult for this court to know what the jury would have made of the appellant. There was evidence as to his personality and background that indicates strongly that he is not a clear and capable thinker. He did not give evidence, but the jury saw him over a long period, and heard acquaintances describe his capabilities. They had his interview with the police. Much would depend upon their assessment of him. That is quintessentially a jury question. A loaded gun used in the course of an armed robbery is obviously dangerous, and it is easy to foresee that it might be discharged. But it is not inevitable that a jury would find that the appellant subjectively foresaw that Preston would shoot with intent to kill or cause grievous bodily harm. When an appellate court is concerned with an issue about the subjective foresight of a person who may be regarded by a jury as being of limited capacity, there is a danger in concluding too readily that a jury inevitably would reach a certain finding, especially where that conclusion is based on logic, and on a rational assessment of objective circumstances which the person involved might not have made.
(Emphasis added)
[99] (2003) 219 CLR 1,15.
I appreciate that her Honour does go on to add the words “But that is for you, not for me, to determine” but, in my view, they are not a sufficient antidote on this occasion. This is particularly so having regard to the fact that counsel for the appellant at trial was not in a position to argue such matters as the availability of manslaughter to the jury. On his instructions as to the facts, the matter was clearly murder or nothing; any suggestion by him to the jury of the availability of manslaughter and how to approach that matter would have been disastrous to his main case as well as contrary to his express instructions.

In such circumstances, the position is clear. The trial Judge is obliged to direct correctly as to all elements of the charge, all possible defences as to which there is any factual basis in the evidence and the legal effect or significance that a matter referred to in evidence may have on the ingredients of the charge or on any of the possible defences. An appeal on the basis of the trial Judge’s failure to do so may be allowed even though the defendant at trial declined to raise the matter or actively opposed such directions as being disadvantageous to his client. In Pemble v The Queen[100] the High Court emphasised the distinction between civil and criminal trials and the independent duty of the trial Judge in a criminal case.[101] Barwick CJ said:[102]
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
…
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial Judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. I should mention in this connexion that this is an appeal and not an application for special leave to appeal.
[100] (1971) 124 CLR 107.
[101] Ibid 117(.6)-118 (Barwick CJ); 132(.8)-133 (Menzies J); 139(.2) (Windeyer J).
[102] Ibid 117-118.
This decision, and the principles there formulated, have been adopted and approved by the High Court on many subsequent occasions[103] and has been consistently applied in South Australia[104] as well all the other Australian States. A helpful exposition of one aspect of the rationale for the rule is found in the Victorian Court of Criminal Appeal decision in R v Longley[105] where Sholl J stated:[106]
… on the whole it is a wise rule. It is aimed at the greater protection of accused persons, lest they suffer greater punishment than their deeds actually merit. It is designed to protect them from the possible consequences alike of their own optimistic falsehoods, forensic or otherwise, or of the misplaced ingenuity, erroneous judgment, or mere incompetence of their advisers. At first sight it might seem sound to say that an accused should be bound by the case he or his advisers make at the trial. In a civil case, there is a lot to be said for that proposition, and generally speaking, that is the law in the civil courts. But in the criminal courts, though it might still be poetic justice, it is not legal or social justice. To apply such a principle would, in effect, be to risk, eg punishing perjury with the penalty appropriate to murder, or misguided advocacy by imprisonment of the advocate’s client.
[103] Howe v The Queen (1980) 55 ALJR 5, 7; Varley v The Queen (1976) 51 ALJR 243; Van Den Hoek vThe Queen (1986) 161 CLR 158; Pantorno v The Queen (1989) 166 CLR 466; BRS v The Queen (1997) 191 CLR 275; Suresh v The Queen (1997) 72 ALJR 769; Gipp v The Queen (1998) 194 CLR 106; Gillard v The Queen (2003) 219 CLR 1, 15; Fingleton v The Queen (2005) 227 CLR 166.
[104] Discussion in South Australian judgments include: R v Perks (1986) 41 SASR 335; R v Murphy (1988) 52 SASR 186; R v Earley (Unreported, Supreme Court of South Australia, King CJ, Millhouse and Olsson JJ, 6 April 1990); R vBall, Bunce & Callis (1991) 56 SASR 126, 139; R v Shinner (1993) 173 LSJS 384; Bedi v The Queen (1993) 61 SASR 269; R v Williamson (1996) 67 SASR 428 and R v B, MA (2007) 99 SASR 384.
[105] [1962] VR 137.
[106] Ibid 140. The appellant had been acquitted of murder by shooting of his wife but convicted of manslaughter. His evidence, if accepted, necessitated a verdict of not guilty of any offence. The Court observed that his evidence had all the hallmarks of obvious falsehood and the jury clearly so regarded it (see generally per Sholl J at 139). However, despite that, the question remained as to whether the manslaughter directions were adequate; disbelief of the accused’s evidence did not obviate the necessity of the jury being satisfied, upon correct directions, of each of the elements of the crime charged before convicting.
Directions as to faking a suicide in the context of manslaughter
I have attempted to explain above why it was necessary for her Honour to give more extensive directions than she did in relation to the suicide hypotheses in the context of the charge of murder. When one turns to the possibility of a verdict of manslaughter, one must bear in mind a further consideration not referred to above, namely that even if the appellant did attempt to fake a suicide, whether by making a false statement or in some other way, that could be accounted for by a consciousness of guilt of actions amounting to manslaughter rather than murder.
There was no suggestion that the appellant had any prior motive to murder his wife. Rather, the prosecution case always was that the appellant suddenly lost his temper and control as the prosecution contended he had on previous occasions when he had inflicted injuries upon her. True it is that the requisite intent for murder can be formed in an instant, but the formation of a lesser intent was also a real possibility in all of the circumstances in the present case.
As stated above, I accept the general validity of the prosecution submission that the appellant’s catatonic state might have been caused by either an innocent finding of the body or by killing in a rage and then regretting it. However, when faced with a decision as to precisely what kind of killing that was, a jury might well consider that it may have tended to point towards manslaughter. Similar comments may be made that the tone and content of the extended conversation of the appellant in the triple zero call (an exhibit before the jury to which I have listened a number of times) might tend to lead to a verdict of manslaughter rather than murder against a background of correct directions as to the respective mental elements of the crimes of murder and manslaughter.
In any event, the jury needed to be clearly directed that the acceptance of a prosecution theory that the appellant had faked a suicide had very much less force in the context of the question “murder or manslaughter?”[107] than in the context of the earlier question of “suicide or killing by the appellant?” where an acceptance of a faked suicide could legitimately constitute powerful evidence of a killing by the appellant.
[107] This is obviously put disengaged from a number of legal issues but serves to simply illustrate the point presently being made.
I conclude, with the greatest respect, that the learned trial Judge’s directions were erroneous and had the unintended effect of blurring the distinction between the choice of murder and manslaughter. Further, her Honour should have directed as to the correct approach to a finding that the appellant had attempted to “fake a suicide” in the context of the distinction between murder and manslaughter. I consider that ground 8 together with an aspect of ground 2 of appeal have been established.
Conclusion as to the disposition of the appeal
I have found that the appellant has made out two groups of grounds of appeal, the first group comprising grounds 3, 4, 4A and one aspect of ground 1, and the second group comprising ground 8 and an aspect of ground 2. I consider that the making out of either of those groups of grounds establishes both that the appellant has not had a fair trial according to law and that a miscarriage of justice has occurred.
Application of the proviso?
I consider that there is no room for the application of the proviso in the present circumstances.
Re-trial or judgment of acquittal?
I consider that this is a case in which there should be an order for a re-trial rather than for the entry of a judgment of acquittal.
Proposed orders
I would make the following orders:
·Grant permission to amend the grounds of appeal by substituting grounds 1 to 8 of the filed “consolidated grounds of appeal”.
·In so far as may be necessary, grant permission to appeal on grounds 1 to 8 of the grounds of appeal in the filed “consolidated grounds of appeal”.
·Allow the appeal and set aside the conviction.
·Order that a re-trial be held upon the present Information.