R v Brougham - [2014] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BROUGHAM
Criminal Trial by Judge Alone
[2014] SASC 196
Reasons for the Verdict of The Honourable Justice Sulan
17 December 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
Bevan John Brougham was charged with the murder of Dianne Rogan on 11 July 2013 in Whyalla. He elected to be tried by Judge alone. The accused and deceased were involved in a sexual relationship. On the night of 11 July 2013 the accused visited the deceased. Both consumed a large amount of alcohol. The following morning the deceased was found lying naked in the backyard of her home. The deceased suffered serious injuries to her face and head and suffered multiple broken ribs resulting in a flail chest. The prosecution case was that the accused inflicted multiple injuries to the deceased. The defence case was that the injuries causing the deceased's death were accidental and resulted from her falling and being dropped accidentally when the accused was attempting to assist her.
Held:
(1) the accused assaulted the deceased which substantially contributed to her death;
(2) the accused did not have the requisite specific intent to kill the deceased or cause her grievous bodily harm at the time;
(3) the accused caused the death of the deceased by an act or acts that were unlawful and dangerous.
The accused is acquitted of murder.
The accused is found guilty of manslaughter.
Criminal Law Consolidation Act 1935 (SA) s 268, referred to.
R v Dolan (1992) 58 SASR 501; R v Wingfield (1994) 176 LSJS 14; Royall v The Queen (1990) 172 CLR 378; R v Hallett [1969] SASR 141; Wilson v The Queen (1991-1992) 174 CLR 313; R v Wills (1983) 2 VR 201, applied.
R v Besim (2004) 148 A Crim R 28., discussed.
Gibson v Ellis (1992) 59 SASR 420; R v Webb & Hay (1992) 59 SASR 563; R v Gardiner [2013] SASCFC 53; Campbell v R [1981] WAR 286, considered.

R v BROUGHAM
[2014] SASC 196
Criminal

SULAN J: On the morning of Friday, 12 July 2013, the deceased, Dianne Rogan, was discovered lying naked in the garden of her home at 69 Sharp Street, Whyalla.
On Monday, 15 July 2013, the accused, Bevan John Brougham, was charged with her murder.
The accused has pleaded not guilty. The accused elected to be tried by Judge alone.
Directions of law
Presumption of innocence
The accused is presumed innocent. He cannot be convicted of the offence or a lesser offence unless and until I am satisfied that each element of the charge, or a lesser charge, has been proved beyond reasonable doubt.
Elements of the offence
The following elements must be proved beyond reasonable doubt for the offence of murder:
1That the act or acts of the accused caused the death of the deceased.
2That those acts were conscious and voluntary, that is to say that they were the result of the exercise of the accused’s will.
3That the act or acts of the accused which caused the death of the deceased were carried out with the specific intention to kill, or at least cause the deceased grievous bodily harm. Grievous bodily harm is “really serious bodily harm”. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out. This element is often referred to as the specific intent required to prove murder.
4The killing was without any lawful justification or excuse.
If the act or acts which caused the death of the deceased were caused by the accused, but it has not been proved beyond reasonable doubt that those acts were inflicted with the intention to kill or cause grievous bodily harm, then a verdict of manslaughter could be returned, if the following elements are proved beyond reasonable doubt:
1The accused killed the deceased.
2That the act or acts causing the death of the deceased were unlawful.
3That the act or acts causing the death of the deceased were dangerous. An act is dangerous for this purpose if a reasonable person, in the position of the accused, would have realised his or her actions would expose the deceased to appreciable risk of serious harm.
Accused has given evidence
The accused gave evidence. I direct myself that, in considering the accused’s evidence, I should give him credit for giving evidence and subjecting himself to cross-examination. I should consider his evidence in the same way as I must consider the evidence of all witnesses. In assessing the evidence of the witnesses, including the accused, I have had regard to their demeanour. I have considered their evidence in the context of other evidence in the case. I have considered their evidence under cross‑examination and applied my judgment to the evidence. I note that I can believe or disbelieve, rely or not rely upon all or part of a witness’s and the accused’s evidence.
Circumstantial case
The case presented by the prosecution to prove that the accused committed the offence charged is based on circumstantial evidence. There is no direct evidence that establishes that he assaulted the deceased thereby causing her death. The accused gave evidence that the injuries suffered by the deceased, details of which I will particularise later, were as a result of her accidentally falling on a number of occasions including whilst he was attempting to save her. I direct myself that, in order to find the accused guilty, I must exclude beyond reasonable doubt any hypothesis consistent with his innocence. If I reject the evidence or any part of the evidence given by the accused, I must consider whether the facts as I find them to have been established prove beyond reasonable doubt that the accused is guilty of any offence. I direct myself that all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an hypothesis consistent with innocence reasonably open on the evidence.
Expert witnesses
I direct myself about the expert witnesses. They are Professor Roger Byard, Dr Sunethra Devika Thomas, Dr Sonya Van Pittius and Dr Helen James. The evidence of the expert witnesses must be considered together with the evidence of other witnesses and with the agreed facts. Ultimately, I must determine what of their evidence I accept, what weight is to be given to it and any inferences and conclusions that arise from the evidence.
Lies
In this case, there is undisputed evidence that the accused lied to the police about the events on the evening of 11 July 2013. Counsel for the prosecution submits that I should conclude that the accused lied out of consciousness of guilt. I will detail the statements made by the accused later in these reasons.
I am not satisfied that he lied from a consciousness of guilt that he had committed the crime with which he is charged. Nevertheless I can treat his lies as relevant to his credit when I consider what weight I give to that evidence.
View
The trial commenced on 20 October 2014 and concluded on 31 October 2014. During the trial, I attended at Whyalla and viewed the deceased’s premises and surrounding area. The view took place both during the day and later at night. I remind myself that the view was conducted to assist me in understanding the evidence of the witnesses. My decision is based upon that evidence assisted by the view.
Overview
After the deceased’s body was discovered, forensic crime examiners attended at the scene and made a number of observations. Ambulance officers attended and the deceased’s body was subsequently removed. On Saturday, 13 July 2013, an autopsy was conducted. The cause of death was a combination of blunt chest trauma and blunt head trauma, with alcohol toxicity.
The accused and the deceased were known to one another. The accused’s parents lived at 71 Sharp Street, next door to the deceased’s house. Police enquiries established that on the evening of Thursday, 11 July 2013, at approximately 6.40 pm, the accused telephoned the deceased. It appears to have been their first contact by mobile telephone for a number of months.
The accused was first spoken to by police on Sunday, 14 July 2013. Detective Sergeant Anthony Van Der Stelt and other officers attended at the accused’s home at 160 Elliot Street, Whyalla. Initially, the accused told police that he had been at his parents’ address at 71 Sharp Street, Whyalla, on the evening of 11 July 2013, that he had left at about 7.00 pm and gone to his home at Elliot Street where he remained for the rest of the night. When he was asked whether he knew the deceased and whether he had ever been in a relationship with her, he stated that he had telephoned the deceased and asked her for sex. She had declined, but told him her husband, Kevin, was away. The accused changed his initial story and told police that he had decided to go to her home to see “how things went”. He had gone to the deceased’s home at about 7.00 pm and asked to have sex with her, but she refused. He said that the deceased had driven him to his home. The accused admits that he lied when he told the police that the deceased had driven him home.
It is the prosecution case that the accused and the deceased were together later in the evening of 11 July 2013. They were naked in a spa bath situated in the back yard. The deceased rejected the accused’s attempts to have sexual intercourse. The accused killed the deceased by bashing her and stomping on her chest. He left her naked lying in the backyard.
The defence case is that the accused and the deceased were in the spa bath together. They had each consumed a large quantity of alcohol. They had engaged in sexual intercourse. The accused was then massaging the deceased’s upper body with his foot. He told her that he wished to terminate their relationship. She then bit his foot. He reacted by instinctively kicking out with his leg.
The deceased hit her head on the edge of the spa bath and lost consciousness. The accused removed her from the spa bath. In the course of removing her, she fell out of the spa. He dragged her on to the lawn area. As he did so, she again fell from his grip. He then applied CPR, but realised she was not responding. He left the premises and walked to his home. The defence case is that the deceased’s death was accidental, and that he did not intend to do her any harm.
Admissibility of evidence
Before I consider the evidence of the witnesses, there is a preliminary question of an objection to the evidence of police officers who spoke to the accused on Sunday, 14 July 2013 when they attended at his home, and later when he was taken to the Whyalla Police Station and interviewed. I heard the evidence subject to objection. It was agreed that I should rule on its admissibility in the course of my judgment.
When the police arrived at the accused’s home at about 10.30 am, Detective Van Der Stelt was accompanied by other police officers, including Detective Sergeant Mason and Detective Sergeant Spry. At the time they spoke to the accused, they had information about the autopsy, and that the deceased’s body showed signs of a serious assault. They knew that a flap of skin had been located wedged in the deceased’s teeth. They were aware that the accused had been at 71 Sharp Street on the night of the deceased’s death. The police had determined that at 6.41 pm there had been a mobile phone call from the accused’s phone to the deceased’s phone.
Detective Van Der Stelt gave evidence that, before speaking to the accused, he did not have grounds to suspect that the accused was involved in the deceased’s death. Detective Van Der Stelt read from his notebook:
He [the accused] said he was at his parents’ house on Thursday night. Parents picked him up around 4 p.m., went to their house for dinner. Stayed there until around 7 pm., left in a taxi, chauffeur cars, called the cab, he went home. Didn’t go out at all that night. Drank about five to six beers and two whiskeys that night, was not too drunk. Knows Dianne next door, replaced the fence. Known her for years. Has social contact with her. I asked about his last contact with her and he admitted he went there Thursday night and that he encouraged her to have sex with him. She wouldn’t, she took him home.
He was asked:
QAre you in fact reading from a contemporaneous note of what he told you that you took at the time.
HIS HONOUR
QWas your evidence that he said that he had gone home at about 7 p.m. by taxi.
AYes.
QHe called a cab.
AYes.
QDid he say when he went to the deceased’s home on Thursday night.
ANot at that time because he had initially said that he had left.
QGone home and stayed home.
AYes, and then when I asked him about his last contact with the deceased, he then admitted to having been there on the Thursday night.
XN
QAs a result of what the accused told you in that conversation, did you change your view as to whether you had any grounds to suspect him of an offence.
AYes.
QAt which point in that conversation did you change your view.
AAt the point where he then admitted that he went there on the Thursday night and that he had encouraged her to have sex with him.
QAs a result of that change in your view, did you cause anything to happen.
AYes, we went and got a video camera out of the car so that we could record the conversations with him on video.
QDid you thereafter administer a caution in relation to your suspicions.
AYes.
Detective Van Der Stelt was asked in cross-examination:
QI’m trying to get the sequence right. You must have asked to observe the bottom of his foot before you started asking him his whereabouts on the Thursday night.
ACorrect.
QAfter observing that there was an injury to the bottom of his foot, did you think that he was a suspect then.
ANo.
QNo.
AI didn’t actually think that the injury to the bottom of his foot was any more than a simple scrape or abrasion. There didn’t appear to be a piece of skin missing at that time. It was very difficult to see.
QWhat about to his hand.
ATo his hand? There was a piece of – an abrasion, a laceration, I’m not exactly sure what you called it. There was certainly a scab on his hand.
QYou could see the scab to the hand.
AYes.
QThen you have a number of questions with him or a conversation with him.
AYes.
QYou indicated in your evidence that it was along the lines he was at this parents’ house on Thursday night. ‘Parents picked him up around 4 p.m. Went to their house for dinner. Stayed there until around 7 p.m. Left in a taxi. Chauffeur car’. That’s the first series of questions.
AYes.
QCan you indicate what the conversation was that you had with him.
AWell, in general terms, that’s probably correct. Just asking him some information about his whereabouts on the Thursday night.
QDid you say to him ‘We think you might be a suspect in this investigation’.
ANo.
Q‘Where were you Thursday night’.
ANo.
HIS HONOUR
QI’d presume you’d ask the question of more than one person about their movements on the Wednesday night during the course of your investigation.
AYes.
XXN
QI assume that you got some further information. ‘Called the cab. Went home. Didn’t go out at all that night’.
AYes.
Q‘Drank about five to six beers and six whiskeys that night’.
ANo, ‘five to six beers, two whiskeys that night’.
Q‘Was not too drunk’.
ACorrect.
Q‘Knows Dianne next-door. Replaced the fence. Known her for years. Had social contact with her’.
AYes.
Q‘And asked’.
A‘About’.
Q‘Asked about last contact. Admitted he went there Thursday night and that he encouraged her to have sex with him. She wouldn’t. She took him home’.
AYes.
QI assume, again, that there was some conversation. He didn’t start just saying all this. You must have asked some questions of him.
AHe actually did volunteer that. He said ‘I suppose I should tell you’. That information came from him then.
QBy this stage, you thought it prudent to get the video camera.
AYes, at that point.
After the video recorder was produced, the accused was informed that the police were investigating the murder of Dianne Rogan, and that he may be a suspect. He was formally cautioned.
Mrs Shaw QC, counsel for the accused, submits that the evidence of any conversations with the accused prior to the formal caution being administered should be excluded. Mrs Shaw submits that Detective Van Der Stelt observed injuries to the accused, including injuries to his hand and eye. He was aware that the accused had been next door to the deceased’s home, and that he had telephoned her on the evening of her death. He was aware her death was violent. Mrs Shaw submits that the accused should have been cautioned immediately when the police commenced speaking to him. She submits that the lies told by the accused when he first spoke to the police are limited to the issue of his credibility and, therefore, the evidence is of less probative effect than an admission of guilt. It is contended that I should exclude the evidence in the exercise of my discretion.
I consider the evidence should be admitted. In R v Dolan,[1] King CJ summarised the principles:
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.
[1] (1992) 58 SASR 501 at 505; see also Gibson v Ellis (1992) 59 SASR 420 at 424; R v Webb & Hay (1992) 59 SASR 563 at 571-573.
I accept Detective Van Der Stelt’s evidence that, when he first spoke to the accused, the investigation was at a preliminary stage and that he had no ground to suspect that the accused had been involved in the deceased’s death. As soon as the accused changed his initial response and admitted being present, the video camera was obtained from the police car and the accused was cautioned. Detective Van Der Stelt and other officers acted reasonably and properly.
I consider there was no requirement to caution the accused until he changed his version and admitted being present at the deceased’s home on the night. The evidence has probative effect. I can have regard to it when assessing the evidence of the accused. The accused was under no pressure to speak to the police. I reject the submission that the evidence should be excluded, as its probative effect is outweighed by its prejudicial effect. The evidence is relevant when considering the accused’s credit. I decline to exercise my discretion to exclude the evidence.
The evidence

The deceased and her husband, Kevin Rogan, lived at 69 Sharp Street, Whyalla.
Before I deal with the events leading up to the death of the deceased, it is relevant to mention the deceased’s consumption of alcohol prior to her death. At the time of her death, the deceased’s alcohol level was 0.34 grams per 100 millilitres of blood (0.34 per cent). Professor Byard, the pathologist, said that this was a very high level of alcohol. He gave evidence that the effect of alcohol on individuals varies. An experienced drinker can tolerate a much high level than an inexperienced drinker. In an inexperienced drinker, 0.34 per cent could be lethal, whereas an experienced drinker could appear relatively normal at that level. He said that, at that level, reflexes would be impaired but otherwise, in an experienced drinker, it may be difficult to detect that the person has consumed such a large quantity of alcohol.
Rebecca Rogan, the deceased’s daughter, was asked about her mother’s drinking habits. She said that the deceased drank red cask wine, and that she would drink one or two glasses of wine when she was relaxing in the spa. Rebecca Rogan said that the deceased drank heavily when she was upset. This occurred around the time of the anniversary of the deceased’s mother’s death.
In cross-examination, she agreed that the deceased started to drink excessively about the time when the deceased’s mother had passed away in the year 2000. The deceased had attended Alcoholics Anonymous. After she had attended Alcoholics Anonymous, she continued to drink alcohol. Rebecca Rogan did not accept that the deceased was drinking heavily at the time of her death.
She said that her mother had been diagnosed with osteoporosis. Some years before her death, the deceased had suffered broken ribs when she had rolled over in bed.
I do not accept Rebecca Rogan’s evidence about her mother’s consumption of alcohol. I conclude that the deceased did drink to excess from time to time, and that continued throughout the period leading up to her death in 2013.
When police searched the scene, there were five empty five litre wine casks found in a rubbish bin. I conclude that the deceased had been drinking large quantities of red wine leading up to her death. At the time of her death, the deceased was highly intoxicated.
I accept Professor Byard’s evidence. I am satisfied that, although the deceased must have consumed a considerable quantity of alcohol prior to her death she could, nevertheless, continue to function normally. That is, she was able to conduct a conversation and was able to walk, stand up and sit in the spa bath.
Geoffrey Rosewarne is a friend of Mr and Mrs Rogan. Some years before these events, he had had a relationship with the deceased. He received a telephone call from the deceased at about 10.00 pm on Wednesday, 10 July 2013. The deceased told him that she was feeling lonely and asked if he could come over. He told her that he was in bed, that he had had a few drinks and he was not going to visit her. The deceased was slurring her words and sounded as though she had been drinking.
I accept Mr Rosewarne as a credible and reliable witness. I am satisfied that the deceased telephoned Mr Rosewarne the night before she died. I conclude that she had been drinking and that she was affected by alcohol. It appears that she was lonely and was craving company.
Mr Rogan, who was absent overseas at the time of his wife’s death, gave evidence that the deceased’s regular routine was to take their dog for a walk at about 6.45 am. On occasions, she would also walk the dog along the foreshore at Whyalla, after she returned from work. Mr Rogan was due to return to Australia on 20 July 2013. Mr Rogan described his wife as being a very fit person, who walked regularly, trained at the gym and was very active in the garden. The deceased was a national triathlete, and competed in marathons. She maintained her fitness.
It is agreed that at 5.27 pm on 11 July 2013, the deceased telephoned her husband in the United Kingdom. The deceased seemed well at that time.
Amelia Marshall is a qualified personal trainer who gave evidence that, during the period March to May 2013, she was the manager of a gymnasium known as Snap Fitness at Whyalla. She personally trained the deceased during that time. She described the deceased as being aerobically fit. Her strength was eight out of ten. The deceased attended the gym each day.
I accept, as credible and reliable, the evidence of both Mr Rogan and Ms Marshall. I conclude that the deceased was a fit, healthy person at the time of her death. She drank to excess but appears to have been able to function relatively normally. The deceased was able to undertake her duties as the Deputy Registrar of the Whyalla Magistrates Court.
On Thursday, 11 July 2013, the deceased left work at about 5.00 pm. She was due to return to work the next day, commencing at about 8.45 am. Phillip Ayling, who knew the deceased, was walking his dog on the foreshore at Whyalla. At about 5.00 pm on Thursday, 11 July 2013, he saw the deceased walking her dog along the foreshore. He spoke to her briefly. The deceased appeared well, and had no injuries to her face.
Anne Rosewarne and her husband, Geoffrey Rosewarne, have known the deceased and her husband for a number of years. Mrs Rosewarne has a business as a photographer, and she works together with Mr Rogan at weddings when Mr Rogan is the celebrant. At about 6.15 pm on Thursday, 11 July 2013, Mrs Rosewarne went to the deceased’s home in order to collect a lamp which she used in her photography business. The deceased arrived shortly thereafter in her car with her dog. Mrs Rosewarne was at the deceased’s home for about 15 to 20 minutes. She described the deceased as being in a good mood. She did not observe any injuries to the deceased.
David Baverstock is a friend of the deceased and her husband. On the evening of her death, he telephoned the deceased at her home between 8.00 and 8.30 pm. He knew that Mr Rogan and their son, Jack, were away. He telephoned to establish when Mr Rogan would be returning, as Mr Rogan was to be the celebrant at Mr Baverstock’s stepson’s wedding. He described the deceased as slurring her words. In cross-examination, Mr Baverstock described her as being “tipsy”.
I accept the evidence of the witnesses who observed and spoke to the deceased on 11 July 2013. I am satisfied that the deceased was at her home on that evening, that she saw and spoke to Mrs Rosewarne some time around about 6.15 pm to 6.30 pm and that, at the time, she had no injuries. I conclude that when she spoke to Mr Baverstock at 8:30 pm she was affected by alcohol.
Rebecca Jane Coffey lives at 74 Farrell Street, Whyalla. Her home backs on to the lane adjoining her property and the deceased’s property. At about 10.55 pm on 11 July 2013, she was in the patio area at the rear of her home attending to her birds. She estimated that she was about 40 metres away from the back fence of her property. There is a laneway which is approximately ten metres wide, adjacent to the back fence. The back fence of the deceased’s property is adjacent to the laneway on the opposite side of the laneway.
It is agreed that the distance from Mrs Coffey’s back patio to the back boundary fence of the deceased’s property is approximately 50 metres. Mrs Coffey observed lighting in the yard of the deceased’s property. It was the only lighting in the area at the time. She heard a cluttering and banging sort of noise which she thought might be coming from the shed at the deceased’s property. It sounded as if someone was working in the shed. She was in her yard for about 15 minutes. During this time she heard a female voice say in a whispering tone, “Please don’t hurt me”.
Mrs Coffey said that she was concerned when she heard those words. She stepped forward into the yard and heard a deep male voice mumbling. Shortly thereafter the voices and the sounds stopped. She went back into her house at about 11.15 pm. She recalled looking at the clock. She was asked whether she considered reporting the matter. She said:
At the time I was concerned because I heard the voice and it really made me feel concerned. As I stepped forward, I thought ‘I’m just going to see if everything is okay and listen’ and I listened and because it was quiet, there was no loud shouting, there was no more noise, there was no more talking, I just thought ‘Oh, you know, maybe it’s just someone arguing. Everything must be okay’. We’ve had similar incidents in our next-door neighbours with lots of domestic arguments quite frequently, almost every second day and when I heard the voice I got concerned and I thought ‘Oh no, don’t tell me there’s a domestic occurring there’ and I was concerned, but when I didn’t hear any more, I thought ‘Oh well, maybe that was nothing’. I didn’t think any more of it. There was nothing else.
Mrs Coffey said that she had gone to Adelaide the next day. She heard the news about Mrs Rogan’s death on Sunday night at 6.00 pm. She contacted the police.
The accused does not dispute Mrs Coffey’s account of hearing a female voice and hearing the words, “Please don’t hurt me”. Mrs Coffey gave her evidence in a straightforward manner. I consider her as a credible and reliable witness.
Friday, 12 July 2013
The deceased did not arrive at work at the normal starting time on Friday, 12 July 2013. Her colleague, Melissa Hannaford, unsuccessfully attempted to contact her by telephone when she had not arrived at work. Being aware that the deceased’s husband was away, she telephoned the deceased’s brother who told her that he would contact Rebecca Rogan, the deceased’s daughter.
Rebecca Rogan attended at her mother’s house at 69 Sharp Street, Whyalla, at about 10.30 am. The screen door at the front was shut. The front door was open. When she entered the house, Ms Rogan observed that the lights were on in the lounge room and the kitchen. She also noticed that the blind in the children’s room was opened. She called out to her mother and received no answer. In the backyard she observed her mother lying on her back on the lawned area. The deceased’s head was pointing in a westerly direction. She was naked. Rebecca Rogan observed a torn cardboard cask and a chair, which had been damaged, lying near the body.
Ms Rogan touched her mother, who felt cold. The top of her fingers were blue and she was very white in appearance. At 10.53 am Ms Rogan rang 000. She took a blanket from inside the house and returned to the backyard, where she covered her mother with the blanket. She tried to open her mother’s mouth. It was clamped shut. Eventually, she managed to do so and she observed a reddish fluid which came out of her mother’s mouth. She did not move her mother’s head or body. I accept Ms Rogan’s description of what she observed when she attended at the house.
Ms Rogan said that it was not uncommon for her mother to enjoy a spa bath late in the afternoon or in the evening after she had returned home from work. The deceased was accustomed to drinking red wine from a cask.
Despite the fact that what Ms Rogan observed would have been extremely distressing, I consider she was a reliable witness and gave an accurate account of her observations.
Samantha Bradley was working as an ambulance officer at Whyalla on 12 July 2013 when she and her colleague received a dispatch instruction at 10.55 am. They arrived at 69 Sharp Street, Whyalla, about one minute later. Ms Bradley was directed by Ms Rogan to the garden, where she observed the deceased lying on her back on the grass with her head pointing towards the spa. She was covered in a quilt. Ms Bradley removed the quilt to the waist and determined that she was dead. She observed swelling to the deceased’s left eye. She replaced the quilt up to the deceased’s head. She did not move the body. She said that there was light rain falling at the time.
Sergeant Mark Guest of the Forensic Services Branch arrived at the property at 11.15 am on Friday, 12 July 2013. He described 69 Sharp Street as being located south of Elliot Street, near the Whyalla High School. Running behind Sharp Street is an unnamed laneway adjoining the rear of properties on Sharp Street. On the opposite side of the laneway and adjoining the laneway are the rear of properties which are situated along Farrell Street which runs parallel to Sharp Street.
Sergeant Guest observed the deceased lying on her back covered with a quilt. He took photographs of the backyard and of the deceased. It was raining at the time and he arranged for a blue tarpaulin to be placed over the deceased’s body. He observed a broken plastic chair. He observed that the deceased had facial and head injuries. She also had bruising to her right knee. There were two plastic glasses, a wine bladder and wine cask lying in the area around the spa bath. The spa bath was an above-ground bath approximately 1.5 metres above the ground. The water in the spa bath was of a reddish colour and tested positively for blood. He contacted the Major Crime Department and Forensic Response Section in Adelaide. He remained at the scene until officers from Adelaide arrived at about 2.25 pm. The scene had been preserved and nothing had been moved.
Sergeant Peter McKenzie of the Forensic Response Section attended at 69 Sharp Street at 2.25 pm on Friday, 12 July 2013. He took a number of photographs at the scene. He saw the deceased lying on the grassed area. He observed a plastic table with reddish-brown chairs. On one side of the deceased’s body he observed an upturned plastic chair which had been broken. The chair was missing a leg. Near the spa there was another piece of plastic which matched the other pieces of the plastic chair. Other pieces of broken chair were near the deceased’s body.
He observed cardboard from a wine cask. He saw the silver bladder from the cask near the spa area. There were two plastic wine glasses nearby.
He observed and photographed a number of injuries to the deceased’s face and legs.
The spa appeared to be full of water, which was a dark red colour. He observed areas of staining around the carpet squares which were adjacent to the spa. There was staining on the wall of the spa, which he described as blood spatters. There were other areas of blood stains around the spa.
He collected various items, including a cigarette butt and cigarette lighter which were found in the area. He observed a piece of the spa filter box which appeared to have been removed from the filter. It was lying near a tree stump which seemed to have been used as a seat. There were three heavy tree stumps in the area surrounding the spa. The one close to where the filter box was located appeared to have been moved slightly from its original position.
The rear left leg of the chair had been broken off. The chair was upturned and lying not far from the log which had been moved. The seat was dirty and there appeared to be a hand or palm print on the seat. It had the appearance of a hand having been placed on the seat of the chair and then slipping along the seat. It was suggested to him that it was possible that the slip mark had been the result of a foot being placed on the seat and slipping. He stated that it appeared to be more like the palm of a hand.
I am satisfied that the mark on the chair was a slip mark. The accused gave evidence that, when he was attempting to remove the deceased from the spa bath, he stood on the chair and his foot slipped when the chair broke. I will refer to the accused’s evidence in more detail later in these reasons. I am satisfied that the mark was a slip mark. It is possible that it could have been made by a foot or a hand.
The spa was drained and Sergeant McKenzie recovered two stud-type earrings and one clip which would hold an earring in place in the base of the spa bath. Sergeant McKenzie observed five used wine casks in a yellow-lidded rubbish bin, and observed empty packets of a medication, Actonel.
Other than Sergeant McKenzie’s conclusion about the slip mark on the chair, the evidence of the crime scene examiners and the ambulance officers was not in issue. I accept their evidence and rely upon it.
The investigation
Detective Van Der Stelt, the investigating officer, arrived from Adelaide and attended at 69 Sharp Street, Whyalla, at about 2.26 pm on Friday, 12 July 2013. He was informed of the details of the autopsy conducted on Saturday, 13 July 2013, and was informed that a flap of skin had been located wedged between the deceased’s front teeth.
Police had ascertained that there had been a telephone call to the deceased from the accused’s mobile phone on Thursday, 11 July 2013 at 6.41 pm. Police had information that the accused had been at 71 Sharp Street on the evening of the deceased’s death.
Detective Van Der Stelt and a number of officers, including Detective Sergeant Spry, attended at the accused’s home at 160 Elliot Street, Whyalla on the morning of 14 July 2013. The accused, who was present, confirmed that he had been at his parents’ home on Thursday night. Detective Spry made notes of his observations and of a conversation with the accused. The accused said that he had gone to his parents’ home to celebrate his brother’s birthday. He had left in a taxi to go home at about 7.30 pm. I have detailed the initial conversation earlier in these reasons. Detective Van Der Stelt asked:
Have you ever been in a relationship with Dianne Rogan.
The accused responded:
Okay yes. I was there on Thursday night. Rang her and I wanted to have sex but Dianne said ‘No’ but then said Kevin was away so I thought I would go and see how things went.
Detective Van Der Stelt observed that the accused had a number of injuries to his right hand. His left eye was very puffy, swollen and watery. Detective Van Der Stelt observed an injury to the accused’s foot. The accused told the police that he had scuffed his foot on concrete whilst tripping over his dogs. Detective Van Der Stelt said that he was aware that the flap of skin that had been located between the deceased’s teeth had ridge detailing. He inspected the accused’s foot. He described the injury as a “reddened area, generally round in shape”.
Detective Van Der Stelt asked the accused when he last had contact with the deceased, to which the accused replied that he had gone to the deceased’s home on Thursday night. He had encouraged her to have sex with him. He said she would not, and that she drove him home.
Detective Van Der Stelt then cautioned the accused, and advised him that he may be a suspect for the murder of Mrs Dianne Rogan. The accused was advised on several occasions that he was not required to answer questions, that he was not under arrest and free to leave at any time. The accused accompanied Detectives Van Der Stelt and Mason to Whyalla Police Station.
At the police station, there was a discussion about the accused’s left eye. The accused said:
AOh Jesus, I had it, oh, it was last week and just when I thought I was getting over it, it bloody flared up again. Well, it was all going away and then when I was at work at the club Friday night, I just went out for a smoke and I bloody flicked myself in the eye.
QWhat with the ash?
AYeah so it, well my finger actually, it just sort of just touched me eye and from there it’s flared up again.
QMmm.
AInto bloody conjunctivitis again.
At 10.40 am on 14 July 2013, Detective Van Der Stelt indicated that he intended to formally interview the accused. The accused did not answer further questions.
The evidence of the officers was substantially undisputed. I consider that the investigating detectives, to whose evidence I have referred, were honest and reliable witnesses.
A sample of DNA was taken from the accused. Later that afternoon, at the Whyalla Hospital, he was examined by a nurse, Carolyn Frusch. She described a number of injuries to the accused. There was a thick, continuous abrasion with a scab formed on the inner aspect of the accused’s second knuckle on his right hand. There was an approximately 1 centimetre laceration on the back of his right hand. There was an abrasion between the little finger and the first finger, a small scratch on the accused’s elbow, and a wound on the left thumb. There was a small, pinpoint scab on the top of the accused’s left hand. Ms Frusch observed a linear scratch on the top of his left foot. There were two linear moist abrasion skin tears, approximately 3 millimetres wide, sloughy in appearance, on the right side of the base of his foot. The accused’s left eye was swollen, bloodshot and teary. The accused told her that he had been suffering from conjunctivitis for a couple of days. She inspected the eye to see if she could find any foreign material in it, but was unable to see anything. The accused showed her the drops that he was using for his eye. She observed that they did not appear to be resolving the problem. She advised the accused that he needed to see a doctor if his eye was not getting any better.

On 15 July 2013, the accused was examined by an optometrist, Ms Ming Huong Nguyen Tat. There was nothing wrong with his right eye. Ms Tat observed inflammation to the white surface of his left eye. She did not consider that there were signs of conjunctivitis. She inspected the eye using light and a microscope. She treated the eye with fluorecene and local anaesthetic. She observed a particle on the surface of the eye which was stuck on the cornea. She removed it with a needle tip. She described it as white, smooth, slightly glossy, quite small, looking like plastic, and only to be seen microscopically. When she removed it, she is not sure what happened to it. It has not been recovered. Ms Tat said the object could cause aggravation, irritation and swelling. She said the irritation would occur immediately once the particle enters the eye. She said that some people have a higher tolerance than others to pain and irritation and, therefore, seek advice later than others. She had seen people leave things in their eye for two or three days. She said that, often, people refer to red and swelling eyes as conjunctivitis.
Ms Tat was well qualified to give evidence about her observations of the accused’s eye. I consider her evidence was reliable.
Scott Harper was a Vice President of the Left-Hand Club at the relevant time. The accused was a member of the committee of the club and worked as a volunteer there serving customers, and undertaking general maintenance work. The club owned a glass washing machine, which regularly broke down. Mr Harper gave evidence that on Wednesday, 10 July 2013, the machine was inoperative. He asked the accused to remove the float valve so that he could replace the parts when he was next at the club. Mr Harper said that the accused removed the valve and left the part behind the bar.
Mr Harper saw the accused on Friday, 12 July 2013 in the evening. The accused appeared to have an injury to his eye. He told Mr Harper that he had poked himself in the eye whilst lighting a cigarette. Mr Harper said the accused was at the club for about one and a half hours that evening. The accused said that he wished to leave because his eye was bothering him.
Christopher Scanlon, who is a taxi driver, knew the accused. On Friday, 12 July 2013, he picked up the accused at the Left Hand Club at approximately 6.30 pm. He took the accused to his home at Elliot Street, Whyalla. The accused told Mr Scanlon he was not well.
Ian Walkden is an acquaintance of the accused. They met on most Tuesdays at the New Whyalla Hotel. On occasions, they went to the accused’s home where they shared a drink in the accused’s shed. On Wednesday, 10 July 2013, Mr Walkden was at the New Whyalla Hotel where he met his friend, Gordon McKellar. The accused arrived somewhere between 5.30 pm and 6.00 pm. Mr Walkden did not notice any injuries to the accused’s hands. Mr Walkden gave evidence that he and Mr McKellar had arranged to travel to Adelaide on Friday, 12 July 2013 to visit a friend. On Thursday, 11 July 2013, he and Mr McKellar went to a friend, Mr Hickey’s home in Sharp Street, to borrow a motorbike helmet and jacket. Whilst they were there, the accused telephoned Mr Walkden. The accused told Mr Walkden that he was at his parents’ home because it was his brother, Robert’s birthday. The accused asked Mr Walkden whether the Left Hand Club would be open that night because he, the accused, was thinking about going to the club later. When Mr Walkden went to the club he realised it was shut that evening, so he sent a text message to the accused advising him that it was shut. He and Mr McKellar travelled to Adelaide the following day.
Mr McKellar gave evidence that he saw the accused on 10 July 2013 at the Left Hand Club. He said he took a part to the accused that the accused needed to help him undo the part of the machine that was causing difficulty. He left a tool with the accused. He saw the accused later that evening at the New Whyalla Hotel in the company of Mr Walkden. He did not notice whether the accused had any injuries to his hands. He cannot recall whether the accused complained about injuries to his hands. He confirmed that he and Mr Walkden travelled to Adelaide on the Friday.
Mr Walkden said that on Saturday, 13 July 2013, he learned about the death of Mrs Rogan. He attempted to telephone the accused on Sunday, 14 July 2013, but the accused did not reply. This was unusual, as he normally answered his telephone or returned missed calls. On Monday, 15 July 2013, Mr Walkden and Mr McKellar returned to Whyalla. Mr Walkden had been trying to telephone the accused. At about 3.30 pm, he and Mr McKellar went to the accused’s home. He said they went to the back shed and they called out, as no-one was answering when they knocked. Eventually, the accused who was in the shed opened the roller door.
Mr Walkden gave evidence as follows:
QAs precisely as possible, what was that conversation.
AWe said ‘What’s going on, you know? You’re not answering our calls. What’s been happening?’, and he said ‘I can’t. Police have got my phone and my wallet and my cards and my car’ I think he said, yeah.
QDid he say anything else you can recall.
AWell, we were kind of in shock. It didn’t even occur to us, you know –
QDon’t worry about what you might have suspected or your opinions. If you can, tell us about any other conversation that took place.
AOkay, so we stood there looking at the ground for a couple of minutes and Bevan said ‘The piss’.
QIn what context did he say ‘The piss’.
AJust ‘The piss’.
QDid he say anything else you remember.
AAsked us if we wanted to have a beer with him because we might not be able to have one for a while.
QDid you say anything to that.
AYes, I said ‘No, I don’t want a beer. I don’t want to drink again’.
QDid he appear to have any injuries when you saw him.
AHis eye was puffy.
QDid he say anything about his eye.
AYeah, he did. He actually said ‘To make matters worse, I’ve got conjunctivitis’.
QHow long were you there for.
AWouldn’t have said more than four or five minutes, if that.
QWhat did you do after those four or five minutes.
AI just wanted to go and as we were leaving, Bev asked Gordon if he would mind going around to the shop and getting him a couple of packets of smokes. He gave him some money and we took off. Got on the back of the bike and went to William Street, bought a couple of packets of smokes, went back and dropped them off to Bev.
QDid you leave straight after that.
AYes.
QHave you seen the accused since that time before today.
ANo.
The evidence of Mr Harper, Mr Scanlon, Mr Walkden and Mr McKellar is not in dispute. I accept their evidence and rely upon it in arriving at my conclusions.
Medical evidence
Dr Thomas
Sunethra Devika Thomas is a specialist in chemical pathology, specialising in bone disease. She has qualifications from the International Society of Densitometrists in America, and from the Australian and New Zealand Bone and Mineral Society. She is currently writing a PhD thesis on “Bone Loss in Nutrition”. She has published a number of research papers and articles on the subject of bone metabolism, osteoporosis and bone loss.
Dr Thomas gave evidence that osteoporosis, broadly defined, is a loss of bone mineral content and other components of bone that occurs over a period of time, and eventually leads to more brittle bones and loss in strength. She said that the most common cause of osteoporosis in women is the loss of oestrogen through menopause.
A condition known as osteopenia exists, which is an early stage, prior to osteoporosis occurring. Dr Thomas said that there are treatments available to deal with the risks associated with the condition, including the taking of calcium and Vitamin D and increasing physical activities.
Dr Thomas said that there are ways of reducing the risk of developing osteoporosis. Women, in particular, should maintain a nutritious diet, undertake physical activities, avoid cigarette smoking and the use of recreational drugs. She said that not a great deal of study has been done on the effects of alcohol on the disease.
Dr Thomas studied two bone density scans and the medical notes relating to the deceased. She was also provided with a post-mortem report of Professor Byard. In her opinion, the deceased was not suffering from osteoporosis. She compared two bone density scans taken, one in 2011 and the other in 2013. The phase of bone loss was essentially stable, and the fracture risk was what could be expected in anyone in the community. Dr Thomas was asked about rib fractures. She stated that there are a number of studies that show that rib number 6 is more susceptible to certain types of fractures.
Dr Thomas was asked whether blunt force trauma of a single blow can cause multiple rib fractures. She said that it can, if the point of contact spans more than one rib. In her opinion it would require a high degree of force, such as the force experienced when a person is involved in a motor vehicle accident or falling out of a high building, to cause multiple rib fractures such as those observed by Professor Byard.
Dr Thomas stated that rib fractures can be caused by certain types of movements, such as twisting and rolling of the body. Having considered the medical notes, Dr Thomas was of the opinion that the deceased may have been suffering from osteopenia, which would require some form of treatment such as added calcium and Vitamin D.
Dr Thomas gave evidence that on 16 May 2011 there was a report that the deceased felt a sharp pain in the right side of her chest whilst gardening. It appears that an X-ray was performed and a fracture of the ninth rib was diagnosed. The deceased was prescribed Actonel, which is a medication to treat osteoporosis. In her view, that drug treatment was unnecessary in the case of the deceased. Nevertheless, if the deceased was taking Actonel, it would have reduced her risk of fractures because it would increase her bone density.
On 23 August 2012, the deceased suffered an injury when she fell from a quad bike, but there appears to have been no fracture. There was an entry in the medical notes in April 2013 which suggested that the deceased was suffering from chest pain on the right side of the chest wall, which increased with movement. The diagnosis was that she had had a prior rib fracture, and has osteoporosis. In Dr Thomas’ opinion, that diagnosis was not accurate.
In June 2013, there was a diagnosis of borderline osteopenia of the femur neck. That is the narrowest part of the hip joint. Dr Thomas was asked about the deceased’s consumption of alcohol and whether that would have affected her bone density. She responded:
According to the two scans I reviewed two years apart and the evidence in front of me is that there has been no change in that bone density, any significant change between 2011 and 2013. I don’t believe that anything would have affected her rate of bone loss, including alcohol.
She was asked:
QIn this case, the deceased had multiple rib fractures, a fractured sternum and a flail chest.
AYes.
QIn your experience, what sort of event would typically explain those sort of injuries.
AIn my experience, the locations that I have seen flail chest and multiple rib fractures are in severe trauma such as motor vehicle accidents, being run over by heavy vehicles and falls from very great heights.
HIS HONOUR
QWhat is a flail chest.
AA flail chest occurs when multiple ribs fracture in more than one place. If they are fractured in one place they are not displaced, they are still held in place in the chest wall, but if they are fractured in two places, they move as a flap separate to the rest of the chest wall and they flail.
QSo it’s two or more fractures.
AYes.
XN
QWould a fall from standing height result in these kind of fractures.
AI don’t believe that would result in a fracture as described here.
QWere you asked to research whether cardiopulmonary resuscitation has ever caused a flail chest.
AYes, I have been.
QWere you able to find any instances of that.
AYes, I have. There have been multiple cases published in literature looking at rib fractures and sternum fractures as a result of cardiopulmonary efforts, particularly cardiac compression. There have been less than 1 % of cases in children, but in adults, in some series, there would be up to 50% leading to rib fractures. Sternum fractures were only recorded in resuscitation efforts using instruments to compress the chest with using more force than manual compressions. So fractures were never recorded with manual compression of the chest.
QIn terms of mechanical compression, are we able to say how many blows would be required to cause the sort of injuries the deceased had.
ANone of these recorded series reported flail chest. There were less than 10% that reported bilateral, which means left and right rib fractures, and all of the reported fractures were on the front of the chest wall, none on the back. And I do note, according to the autopsy report, some of the ribs in this case were fractured on the back as well. The way that they looked at the efforts of resuscitation and the fracture or the result of the efforts, were by looking at the depth to which the compression occurred. There was an association between the number of ribs fractured and the depth to which the compression occurred recorded for male patients but there was no such association for females.
QWhat, if you are able to tell us, is the significance of there being fractures to the rear of the ribs as well as the front.
AThe fractures to the rear of the rib does n – it’s not consistent with any efforts of compression from the front.
Dr Thomas was asked whether manual CPR can cause a flail chest. She agreed that it may happen, but it would be rare. She was referred to an article by Hoke and Chamberlain which reported that conventional CPR in an adult suggests an incident of rib fracture ranging from 13 per cent to 97 per cent. She said that sounded correct. The following question was put to her:
QSo you would expect to see rib fractures up to 97 per cent of the time where it’s performed.
AThat’s correct and in most cases there were a single rib fracture one or two.
QLikewise you would expect to see sternum fractures anywhere from 1 to 43 per cent.
AYes.
QThe incidence of reported rib fractures secondary to standard CPR varies enormously, from 13 to 98 per cent.
AYes.
QYou have the situation that rib and sternum fractures are among the most common complications of CPR; you accept that.
AYes.
Dr Thomas was asked:
QThat if a large – and you may have already answered this but if a large man is performing CPR, you would also expect there to be rib fractures.
AI couldn’t comment on that. I can only go by the literature I’ve read. I am not an expert on CPR or intensive care so I would decline to give my opinion on that.
Dr Thomas is a highly qualified specialist who has studied bone disease. I consider that she was an impressive witness. I am satisfied that the deceased was suffering from osteopenia. The condition is likely to have resulted in her being more susceptible to bone fractures than a person not suffering from the condition. The evidence is that the application of CPR can result in fractures to the ribs. Professor Byard examined the deceased’s ribs. He described them as ‘soft’. He considered there may be a problem with osteoporosis. The deceased’s bones were ‘gracile and thin’.
Dr Van Pittius
Sonya Van Pittius is a general practitioner who treated the deceased and who diagnosed her as suffering from osteoporosis. She gave the following evidence:
AIf I need to be strictly correct, the diagnosis should be osteopenia. It was said as osteoporosis because she had a fracture due to minimal trauma and on a subsequent X-ray that was made, there was mentioning made of a thoracic vertebral fracture that had wedging of more than 25% which we would then class as osteoporosis and treat the patient as such to prevent osteoporosis.
QDoes it follow from what you are saying that you didn’t base your diagnosis upon any bone density scans.
AI then subsequently went ahead to do a bone density scan and, if we are strictly correct, according to the bone density scan results, the results were consistent with osteopenia and not strictly osteoporosis.
QDo we understand from your evidence that, in any event, you took steps to prescribe preventative medication to ensure that there was some protection to the deceased from any risk of fracture.
AThat is correct, yes.
QDid that include the prescription of Actonel.
AThat is correct.
Dr Van Pittius’ observations of the deceased support the conclusions of Dr Thomas.
Dr James
Helen James is a forensic odontologist. She examined the piece of skin found between the deceased’s teeth. She was shown photographs from the post-mortem of the skin between the teeth. She was shown photographs of an injury to the inside of the accused’s right foot. She described the injury as being on the medial aspect closest to the midline of the plantar surface or the sole of the foot. Dr James gave evidence about the nature of the injury. She said:
Well, the contact must have been between the tooth and the sole of the foot and basically dragging, the teeth are dragging across at a right angle, so no matter what the position of the various parties that’s the constant, so she may have been in one position, he in another.
Dr James opined that it is virtually impossible to say in what position the foot or mouth was, at the time that the injuries were sustained.
QYou have given evidence about angles in terms of the contact between the biter and the object that’s bitten.
AYes.
QBut you agree the variables are obviously a matter of common sense rather than an area of your science.
AWell, that is part of the science of recognising which teeth may have caused that injury and then correlating the angles to try and explain the injury.
QBut there’s nothing in your science that will tell you the particular angle in respect of which the object being bitten and the biter may have been placed; do you agree with that, apart from common sense.
AApart from common sense.
QThere is certainly nothing that tells you from the point of view of a forensic odontologist whether or not the foot might have been held in a particular position at the time it was bitten or the injury occurred; do you agree with that.
AAbsolutely no way of telling.
HIS HONOUR
QCould this injury have occurred, and I’m only putting this as a possibility, by the deceased biting the foot quite hard and the foot then being pulled away.
AIt could have.
...
QWas there any impression of the lower teeth that you observed.
ANo, but I wouldn’t necessarily expect that because there is a time lag.
QBecause of the type of tear.
AAnd the timelag [sic] between when I have seen the injury and when I think it may have occurred.
QSo the impression might have disappeared if there had been one.
AYes.
The injury that Dr James observed could have been caused by the deceased biting the accused’s foot and he dragging his foot from her grip thereby resulting in the dragging type injury. The prosecution case is that the injury was caused in the course of the accused kicking the deceased.

I cannot exclude the possibility that the foot injury was caused in the manner described by the accused, which I will detail later in these reasons.
Professor Byard
Professor Roger Byard is the Senior Specialist Forensic Pathologist at the Forensic Science Centre. He conducted a post-mortem examination on the deceased on 13 July 2013. In Professor Byard’s opinion, the cause of the deceased’s death was a combination of blunt chest trauma and blunt head trauma with alcohol toxicity.
Professor Byard gave evidence that the deceased’s blood alcohol level at the time of her death was 0.34 per cent. He opined that the effects of alcohol on an individual can vary according to body size, but predominantly is affected by tolerance to alcohol such that an experienced drinker can tolerate a much higher level than an inexperienced drinker. Professor Byard stated that it is not possible to say from the blood alcohol level alone what effect alcohol has on a person.
In Professor Byard’s opinion, alcohol alone was not the cause of the deceased’s death. He also excluded diagnoses of drowning, underlying organic disease or an asthma attack as causes of death.
Professor Byard observed areas of blunt force trauma of varying degrees of severity to the face, neck, head, chest, hands, legs and anogenital areas of the deceased.
Professor Byard observed a fractured sternum as well as multiple rib fractures resulting in a flail chest. In total there were 18 fractures across 13 ribs. He explained that a flail chest is a segment of the rib cage that is not supported by the remaining ribs. Without immediate medical treatment, a flail chest can result in death within a number of minutes. Death is caused because the flail segment of the chest wall is unable to contribute to lung expansion and instead of expanding and opening the lungs, it caves in, collapsing the chest wall and preventing breathing from occurring. Professor Byard gave the following evidence when asked about the degree and type of force required to cause the chest injuries:
AIt's not the sort of injury I see with people just falling over unless they are extremely frail, but even then there are multiple fractures all over so it's the type of injury I would see with a vehicle accident or falling from a significant height.
QHow many applications of force would have been required, and this is the sort of significant force you have referred to, would be required to cause the chest injuries that you saw, at a minimum.
AI think that's very difficult to predict really or to guess at. If, for example, somebody was lying on a firm surface and somebody jumped from a height on them with both feet, possibly on impact, but it would have to be significant impact. If the person was closer, then maybe more impacts, but I don't think from the pathology.
HIS HONOUR
QYou talked about falling from a significant height. You have seen injuries such as this. When you say 'significant height' what kind of height are you talking about.
AThe sort of injuries I am thinking are people who have jumped out of multi-storey car parks, that sort of thing, not from falling from head height or falling off chairs in the kitchen or anything like that.
XN
QIn terms of where the force was applied would it necessarily have been to the front of the deceased’s body or to the back you told us.
AI think it could be either. What you need is a compressive force to squash the chest, front or back. Maybe obliquely as well. It could be any.
Professor Byard was asked whether the force required to inflict the injuries to the chest would leave any bruising to the torso. He said:
It's one of the things that seems to defy common sense. You would think if you have significant internal injuries that you should get significant bruising on the outside, but of course the skin is very elastic and I have actually written a paper on this showing a couple of individuals in vehicle accidents who had multiple injuries inside a flail chest and their skin was absolutely unmarked.
In cross-examination, he was asked whether the impact of stomping on the chest would be visible on the skin:
QI suppose I am putting that very inarticulately, but if a person was say stomping on a chest, would you expect to see a visible sign on the outside of the chest.
ANot necessarily. As I mentioned before, in vehicle accidents sometimes people can hit the steering wheel and have worse injuries and you see no sign of injury. Sometimes that's because there's clothing that's acting as padding, but I think you can get quite significant internal injuries and have no sign of it at all outside.
Professor Byard observed multiple areas of bruising and abrasions to the front and rear of the deceased’s torso. Samples were taken of some of the bruises which were examined under a microscope. Professor Byard’s evidence was that it is not possible to accurately age a bruise by histological examination. He said that there were areas of bruising to the left and right breasts. In his opinion, it was possible that the bruising may have been caused by the forceful grabbing of the breast by a human hand or by an object with a number of projections. He said that the injuries do not give a clear indication of how they occurred. He accepted in cross-examination that the bruising to the right breast may have been caused by a dog paw. Further bruising was located on the right shoulder and to the middle of the right clavicle.
On the rear of the deceased’s torso, Professor Byard observed four areas of bruising. There was an irregular grouping of bruises, scratches and abrasions to the right shoulder. Toward the centre of the back there were two parallel scratches approximately 13 millimetres in length and three millimetres apart. Professor Byard was shown the broken chair leg recovered from the scene. He agreed the chair leg was capable of inflicting the injuries. In the middle of the back, on the right side, Professor Byard observed a collection of linear grazes which he accepted were consistent with dragging or falling against an object. To the lowermost part of the back was a superficial scratch measuring approximately 50 millimetres. He was unable to say whether any of the injuries were caused whilst the deceased was positioned on her front or her back.
Professor Byard was asked whether the injuries to the deceased’s chest could have been caused by someone performing CPR. He said:
AI've not seen this degree of external rib fracturing from CPR. That's not to say it's not possible, but I think that if it did occur it would have to be in a very frail person with very brittle bones, but certainly we do get rib fractures from CPR. In fact, we do have flail chest from CPR if it's been done enthusiastically or for some time, but I've not seen it to this extent. The other thing too is more often the fractures with the CPR are on the front of the chest and not around the back.
QWere the deceased's ribs obviously brittle or soft on examination.
AWhen I was opening the chest and cutting the ribs I comment [sic] that they were soft. Now, I've been considering this and I think that that might imply that there was a problem with osteoporosis. The other possibility perhaps I should put in my report is that with gracile and thin bones they are easy to cut as well. So I suppose the analogy if we had two 20 year olds, one was a slight, female ballerina and the other was a strapping footballer, the ballerina's ribs would be much easier to get through than the footballer's even though the structure is normal. My subjective feeling is that they were easy to cut and there may be several reasons for it.
QIf there had been an attempt, albeit a ham-fisted attempt at CPR, would one expect there to be associated organ damage internally.
AOften if there's prolonged and badly performed CPR you may get lacerations of the liver, you get rib fractures.
QWere there any signs of damage to the internal organs consistent with such attempts at CPR in this case.
ANo, there weren't.
The following scenario was put to Professor Byard by defence counsel:
QCould there have been a fall causing injury or fractures to the rib cage and then a person attempting CPR on that person afterwards, effectively exacerbating the chest injury causing the flail chest.
ACertainly if you have a fall and fractured ribs and then had CPR after that, logically you could get an increased number of injuries because you have actually got two events.
QIn respect of CPR, a person who is inexperienced, drunk, and ham-fistedly (sic) doing CPR, could quite often cause a fair amount of damage to the person.
AThat makes sense, but I think the only literature I know on it shows that people who are actually trained with CPR do more damage than untrained people because they realise the significance of what they are doing and they push it further, but if somebody is drunk doing CPR, I suppose they could cause damage.
QI don't know whether you can comment on this at all, but if a person administering the CPR is at least 30 kg heavier, would that have an impact on the amount of force that was being delivered to the rib cage.
AYes, I suppose it would.
Professor Byard was asked about the injuries to the deceased’s face, head and neck. He was of the opinion the injuries to the face and head in combination with the amount of alcohol present in the blood contributed to the death of the deceased. He gave the following evidence:
This is something that we have recognised in recent times where somebody may have a concussion which doesn't leave any marks on the brain such as bruising or bleeding, but if they have a high alcohol level as well, the combination of concussion and the alcohol can result in death. A concussion is not as benign as we used to think it is. What it does is it desensitises the brain to further insults.
Later in his evidence, Professor Byard said:
AI think we've had significant trauma to cause the amount of bruising but the important point is there was no evidence on the neuropathology of haemorrhage, there was no other fracture other than orbital facial fracture, there was no bruising to the brain. Effectively the brain was normal, so it would be very hard to say that the blows to the face on their own have caused brain damage when we didn't see any.
QCould they have caused the loss of consciousness on their own.
AThey could have. I think they're most likely associated with concussion because they were quite significant.
QWhen we combine that with the high blood alcohol level, is that risk of loss of consciousness increased.
AYes.
To the left side of the deceased’s face, Professor Byard observed bruising from the upper part of the neck extending over the line of the jaw, covering the left cheek completely, extending up to the hairline and behind the ear. The bruising further extended over the mouth and there was bruising to the inside of the lips and tip of the tongue. There were lacerations to the left eyebrow and a bruised left eye. He described the bruising in the following terms:
I've called it confluent because my feeling is that this was due to a number of different bruises running together and it's very - it's impossible to imagine just one blow causing this amount of bruising, because it's following the fold of the face, so I think there have been a number of blows. I've just attributed it to one blow because I can't really tell so I've taken the minimum number.
Wedged between the first and second incisor teeth in the top row of the deceased’s teeth, Professor Byard located a piece of white skin. In his opinion, based on how firmly the skin was lodged between the teeth, the skin fragment became lodged there as a result of the jaw biting skin. He gave the following answer in cross-examination:
I think the most likely mechanism is that somebody has been bitten and the piece of skin has got caught between the teeth. It's like when the skin of an apple attaches between the teeth, you have to actually bite the apple, and I don't think with cadaver spasm or rigor mortis you get that sort of thing.
To the right of the deceased’s face, there was bruising over the right cheek and right side of the forehead. The skin was split and bleeding above the right eyebrow. The right eye was bruised and there was a fracture of the bone encased around the eye. There were a series of parallel scratches running down the forehead towards the eyebrow.
Professor Byard was asked to give his opinion as to the minimum number of impacts required to cause the injuries to the face and the type of impact that would cause such injuries. He said:
AWell, I've, I think, put a minimum of four and what I've said is one blow to the cheek, the left cheek, one blow for under the chin, one blow for the right cheek and one blow for the orbit but that is very much a minimum.
QDoes the fact that the injuries were on both sides of the deceased's face have a significance for you in pathological terms.
AYes, it does. If people fall or have accidental injuries they don't tend to be symmetrical and here we have injuries pretty similar, there was a lot on the side but they are on both sides and that's more characteristic of an assault.
QDoes the fact that there were multiple impacts in the same area suggest anything in pathological terms.
AI think when you look at the photograph of Mrs Rogan and you see there might be scattered injuries elsewhere but there really is a very focused collection of injuries around the face and the head, and that is far more typical of an assault than falling.
QDoes the bruising of the deceased's eyes suggest anything in particular to you.
AI think the fact that we have a fracture of the bony case around the right eye and we have bruising of the eye suggests direct impact such as a punch. That's much more common than something sustained from falling over.
QWhat typically are the injuries when someone simply falls over.
AThey often have a lot more injuries to the limbs where they have tried to protect themselves or just be one side. I see a lot of people - known alcoholics who have stumbled around interminably and they don't have this tremendous focus of injuries on one - both sides of the face; just one side or back of the head or something like that.
HIS HONOUR
QThe eye injury that you have spoken of, could that be caused if it was a fall by the area of the eye hitting an object such as a log.
AIt's a possibility, your Honour, but if we are looking at black eyes on both sides, if it could be two falls. A log, I would think, would leave more abrasions. A fist doesn't tend to leave abrasions like a piece of wood or piece of concrete would.
XN
QIn relation to the injuries to the mouth and the bruising to the lip, what typically could cause that kind of injury.
AAgain, that's the same type of injury people get when they are being punched or kicked. Bruising in the inside of the lips where the lips hit the teeth. If it happened in a fall on a log or piece of concrete I'd expect to see more scratches and abrasions around the mouth.
Professor Byard said that it was difficult to reconcile the injuries to the deceased’s face with a fall, even if she were unconscious at the time. He was of the view that she would have had to fall at least five times.
Professor Byard recorded injuries to the back of the deceased’s neck. There were two parallel scratches approximately 30 millimetres in length and three millimetres apart. He said that it was possible that they could have been caused with the edge of the chair leg.
To the right side of the head towards the back there was an area of swelling and a small abrasion. Professor Byard opined that it could have been caused by being hit by an object or by falling backwards.
Petechial haemorrhage, or pinpoint areas of haemorrhage, were located either side of the opening of the vagina moving downward toward the anus. There was also a superficial 10 millimetre scratch in the same area. In Professor Byard’s view, they could have been caused by forceful sexual penetration, or possibly by fingers or a hand. He said that it was not a normal finding after intercourse and would not have been caused by a fall.
The final category of injury described by Professor Byard were scattered bruises and abrasions. They were medically minor injuries to the back of the hands, arms and legs. He could not say whether they were related to the event which caused the deceased’s death.
In cross-examination, defence counsel put the following scenarios to Professor Byard for his opinion:
QIf I can put to you a suggestion that Mrs Rogan and Mr Brougham were in the spa and that she bit down on his foot and he kicked out at her as a result of that, with her head going back and hitting the back of the spa, would that explain a number of the injuries to Mrs Rogan's face and the back of the head.
AWell, what you're suggesting, it was one kick with the foot, with the head going back, hitting the back of the head, that could explain the swelling at the back and then we would have to hypothesize how much damage one kick with the foot can cause. Could it cause the bruising to the right side of the cheek and the black eye? That's possible. If you think of a foot, you have a heel, you have the ball of the foot, so if they were hitting out at the face can cause injuries.
QIf the mechanism for Mrs Rogan was to go back, hit the rear of the spa and then the head come forward and go into the foot again, in a whiplash type action, is that a possibility.
AUsually when people are in that situation they are moving, so it's a bit difficult to believe a foot exactly in the position, and coming back onto it. I can imagine a kick once and going back.
QIf Mrs Rogan was in the spa and through (sic) inebriation she was getting out of the spa, slipped and fell, a number of her injuries could be explained by that occurrence.
ASome could.
QIf as a result of, if as a result of a kick to the face with a blow to the back of the head, is it possible that the person would then suffer concussion and basically become unconscious.
AIt's conjecture. I suppose it is possible if there was a sufficiently severe kick to the face with the blow to the back of the head, with the alcohol; I suppose you can have that effect, unconsciousness.
QThat was what I was leading into. If it was a combination of all three, because as a result of the alcohol her ability to react or attempt to tense - her neck muscles would be just about zero, the head going back against the hard surface of the spa, in combination with the amount of alcohol that she had ingested, that could quite, in an additive way, give rise to unconsciousness.
AI think that's possible, yes.
QIf she was unconscious - I know this might sound a bit trite but she in effect becomes a dead weight, she's unconscious and difficult to move.
AYes.
QAgain hypothetically, if she was - perhaps with a view to be taken out of the spa and her and Mr Brougham fell against the side of the spa, could that possibly cause some of the injuries that we've seen.
AYes, it could.
QIf Mrs Rogan effectively is pushed out of the spa and effectively goes head first on to the paving, bricks, the abrasion that we see there could be explained by that.
AThat's possible, yes.
QIf there was a broken part of the chair there and she fell on the part of the chair, would that also explain some of the minor superficial injuries that we have seen.
AIt could do, yes.
QAnd the abrasions to her back could be explained by a wooden sleeper that was there, that was dragged across to where CPR may have been performed.
AIt's possible, yes.

I do not accept his evidence that he contacted the deceased for the purpose of going to her home to advise her that he wished to end their relationship. I am satisfied that he made contact with her because he knew her husband was away and he wanted to take advantage of an opportunity to continue their sexual relationship. There had been a discussion with her some days before about her husband being away. His suggestion that his primary purpose was to see her personally to end their relationship is disingenuous. Further, his conduct that night supports the conclusion that he went to her home to engage in a sexual encounter. The accused could have discussed ending their relationship whilst the deceased was preparing the dog food. That discussion would almost certainly have resulted in him leaving without any sex occurring. I am satisfied he attended at the deceased’s home so that they could continue their sexual relationship. I conclude that the deceased was a willing participant. She would hardly have invited him to join her in the spa unless she was prepared to engage in sexual relations with the accused. Both the deceased and the accused were significantly affected by alcohol.
I am satisfied that the accused went to the deceased’s home some time after about 7:15 pm on 11 July 2013. I do not conclude that sexual intercourse was non-consensual. I accept that the deceased was comfortable with the accused joining her in the spa bath. I conclude that the deceased was lonely and that she was craving company. That conclusion is supported by the evidence of Mr Rosewarne whom she telephoned the night before. I am also satisfied that the deceased would not have rejected the accused’s sexual advances.
There is no doubt that sexual intercourse occurred that night. I accept Professor Byard’s evidence that for the injuries he observed to the vagina and anus there must have been considerable force applied during the sexual encounter. I conclude that, when Mrs Coffey heard a female voice say, “Do not hurt me”, that probably occurred when the accused and the deceased were vigorously engaging in sexual intercourse. That conduct explains the injuries to the vagina and anus observed by Professor Byard. Whether that caused the deceased to bite the accused on the foot or whether some other event or something was said which caused her to react is unclear. I am satisfied based on the expert evidence of Professor Byard and Dr James that the deceased bit hard into the deceased’s foot and he sustained the foot injury when he pulled his foot away from her grasp.
The evidence supports that an altercation occurred in the spa. The presence of blood in the spa, that the cover had been moved and was found in the yard and the seat in the spa had been moved support a conclusion that there was a disturbance within the spa bath.
The accused’s description of how the deceased might have sustained the injuries described by Professor Byard is not credible. I do not accept his description of what occurred after the deceased bit his foot. I accept that he may have reacted by kicking her. I do not believe his evidence that as a result of the kick the deceased became unconscious. The accused’s description of what occurred when he attempted to remove her from the spa is not credible. The deceased was a relatively slight woman. The accused’s description of what occurred after he claims the deceased was unconscious cannot explain the extent of the bruising and the injuries to her face and body described and observed by Professor Byard.
I do not believe his description of how she was dragged unconscious from the spa across to the position where her body was found and of how he applied CPR. The accused may well have panicked and applied CPR when he realised the extent of the deceased’s injuries. She may have been unconscious when he applied CPR. I do not believe that the injuries to her chest and other parts of the deceased’s body were caused accidentally by the accused attempting to remove her unconscious body from the spa and then applying CPR.
I remind myself that in rejecting the accused’s evidence as to crucial matters does not establish that he is guilty of any offence. In rejecting his evidence I cannot draw an inference or conclusion that the accused must therefore be guilty of any crime. I am required to consider all the evidence to determine whether I am satisfied beyond reasonable doubt that the crime charged or any other crime has been committed.
Factual conclusions
I find that the deceased had consumed a significant amount of alcohol on the night of her death. Professor Byard stated, and I am satisfied, that the deceased’s blood alcohol level at the time of her death was 0.34 per cent. The deceased was observed by Mr Ayling and Anne Rosewarne prior to 6.30 pm on the evening of her death soon after she had left her workplace. She had no observable injuries. I conclude that the deceased consumed a large amount of alcohol between 6.30 pm and the time of her death.
I accept the evidence of Mr Rogan and find that the process of preparing the dog food would take up to three hours and that the deceased would typically finish around 10:30 pm to 11 pm. The deceased did not commence preparing the dog food prior to around 6.30 pm. I conclude that the accused arrived at the deceased’s home some time after 7 pm. I conclude that the deceased and the accused did not enter the spa until later in the evening. The deceased and the accused continued to consume red wine whilst in the spa.
I conclude that the accused also consumed a significant quantity of alcohol on the night of the deceased’s death. His evidence was that he consumed eight bottles of beer and two whiskeys prior to going to the deceased’s home. He consumed red wine whilst the deceased was preparing dog food and later whilst in the spa. The two plastic wine glasses located at the scene support the conclusion that the accused and the deceased were drinking whilst in the spa.
I am satisfied that the deceased was a fit, healthy woman who regularly exercised. She weighed approximately 50 kilograms. She had been misdiagnosed with osteoporosis, although she was osteopenic. Consistent with the misdiagnosis, she was taking medication to treat osteoporosis. I accept the evidence of Dr Thomas and find that the medication would not have had an adverse effect on the deceased. Even though the medical evidence suggested her bone density was in the normal range, Professor Byard observed soft ribs which suggests that she might have been more prone to rib fractures than someone who was larger and more robust. This conclusion is also supported by the evidence that the deceased had suffered previous rib fractures. I rely upon Professor Byard’s observations and opinions.
Professor Byard did not observe any bruising to the chest of the deceased. Whilst I accept his evidence that there can be situations where a person may have significant internal injuries and yet the skin is unmarked, he gave that evidence in the context of his experience with victims involved in motor vehicle accidents. One would expect that if the accused had stomped on the deceased repeatedly there would be some bruising on the skin. Although he had not seen it to such a degree as in the present case, Professor Byard accepted it was possible that a flail chest and rib fractures can be caused by performing CPR, particularly in cases where a person is frail or has brittle bones. Having regard to the foregoing, I cannot exclude the possibility that at least some of the deceased’s chest injuries were caused by the accused performing CPR. The injuries to the chest required considerable force. I cannot exclude the possibility that the accused applied significant force to the deceased’s chest when performing CPR. For the reasons which follow I conclude that at the time that the accused applied CPR the deceased was suffering from significant injuries which were as a result of the accused assaulting her. Those injuries substantially contributed to the deceased’s death.
I find that the accused and the deceased had been in a sexual relationship which commenced in 2008. That relationship, to an extent depended upon opportunities presenting themselves for the two to meet. The relationship was ongoing at the time of the deceased’s death, although there had been long periods when they had not seen each other. I am satisfied that an opportunity to continue their relationship presented itself whilst the deceased’s husband was away overseas. On the accused’s own account the deceased had spoken to him at the Left Hand Club some days before her death. The accused contacted her on the night. The events which followed lead me to conclude that the accused’s prime purpose was to enjoy a sexual occasion with the deceased. The accused may have wanted to discuss his future intention of seeking a Filipino wife, but I find that his prime purpose was to have sexual intercourse with the deceased on the evening of her death. I conclude that the accused and deceased had sexual intercourse whilst in the spa. Their past relationship and the fact that they were naked together in the spa consuming alcohol confirms that sexual intercourse most probably was consensual.
I do not accept the prosecution submission that the deceased rejected the accused’s sexual advances which resulted in him assaulting her. How the altercation between them began is uncertain. The disagreement may have been when the accused engaged in more vigorous intercourse than the deceased was prepared to engage. The words, “Please do not hurt me” are likely to have been spoken during this sexual encounter. The deceased may have become upset by something the accused said. Whatever the reason, I am satisfied that the deceased bit the accused on the foot. The injury to the accused’s foot and Dr James’ evidence supports a conclusion that the deceased had a firm grip on the accused’s foot and that the tearing injury was caused by him pulling his foot away. The accused may have kicked out at the deceased. I do not accept his evidence that she lost consciousness as a result of him kicking her. The injuries suffered by the deceased were so extensive that the suggestion that they resulted in the manner described by the deceased is not credible.
Professor Byard observed a focused collection of injuries around the face and the head of the deceased. There was bruising to the left side of her face extending over the line of the jaw and up to the hairline and behind the ear, bruising over the right cheek and right side of the forehead, a gash above the right eyebrow, a blackened right eye and fractured right eye socket. Due to the confluent nature of much of the bruising, Professor Byard was only able to ascribe a minimum of five impacts to cause those injuries. I accept his evidence. I find that it would be very unlikely, if not impossible, for the bruising to the left cheek to have been caused by a single blow. I accept his opinion that it was due to a number of bruises running together and was the type of injury that typically results from a person being kicked or punched. I accept Professor Byard’s opinion that the location, symmetrical nature and focused collection of bruising to the face and head is more characteristic of an assault than an injury associated with a fall. I am satisfied that the facial and head injuries suffered by the deceased were as a result of numerous blows of blunt force.
I accept Professor Byard’s evidence that the injuries he observed were most likely to have resulted from an assault. I am satisfied that the accused struck the deceased on numerous occasions causing injuries to her head, which substantially contributed to her death.
Professor Byard accepted that certain events could result in consequential injuries. However the extent of the injuries are such that I am satisfied that they were not caused by the deceased slipping or falling on a number of occasions. I conclude that the injuries to the chest are such that CPR alone was not the cause. It is possible that some of the rib fractures were caused by CPR, however the fact that there were fractures both to the front and the rear of the rib cage leads me to conclude that force other than simply CPR caused those injuries. I am satisfied that there was some application of force by kicking or stomping the deceased in the front or rear of the chest.
The extent of the bruising and other abrasions satisfies me that the deceased had been assaulted by a number of blows with a fist or that she had been kicked on a number of occasions. In my view it stretches coincidence beyond belief that injuries such as those suffered by the deceased could have been as a result of her slipping or falling and sustaining further bruising when the accused attempted to remove her from the spa.
The extent of the deceased’s injuries to the face are such that I am satisfied that the accused assaulted her by hitting her with a clenched fist in the head and face. The injuries to her ribs are such that at least some of the factures were caused by deliberate blows either from punches, kicks or stomps.
The accused’s evidence does not account for the nature and severity of the injuries to the deceased’s face and head. I found his evidence unconvincing when he was being asked whether he observed any injuries to the deceased when she first entered the spa, after her slip from the steps, after he kicked-out at her or when they crashed against the side of the spa. The deceased and the accused were sitting across from each other in a confined area for, on the accused’s evidence, around one hour before he brought up the topic of ending the relationship. It is inconceivable that he would not have noticed any significant injuries to her face or head, had they been there at the time. Similarly, if the deceased had sustained any serious injuries to the face or head when she slipped from the step, it is difficult to imagine that he would not have seen them when he was massaging her upper body with his feet. I am satisfied that the injuries sustained to the face and head of the deceased were not caused by the events as described by the accused.
I reject the evidence of the accused that the deceased became unconscious as a result of a single blow to the head caused by him kicking-out at her when she bit his foot. Having found that the injuries were caused by repeated blows inflicted by the accused and not by the series of events described by the accused, I consider it inherently implausible that, if the deceased had been rendered unconscious by the initial kick, the accused would have continued to attack the deceased in a manner which resulted in the extensive injuries she sustained to her face and head. It follows, and I find, that the deceased did not die as a result of the accused kicking out at her face after she bit his foot.
I am satisfied that the injuries to the deceased’s face and head were caused by repeated blows inflicted by the accused. I cannot be satisfied of the circumstances in which the assault occurred, whether it occurred in the spa only or whether it continued outside. The position of the filter box and spa cushion as observed by the police after the deceased was found suggest that they had been dislodged during the altercation. The exact circumstances of how that occurred are unclear. I cannot be satisfied that the accused attacked the deceased by hitting her with the filter box. The position in which those items were located and the dislodging of the spa cover are, however, indicative of a disturbance having occurred in the spa.
I am satisfied that the plastic chair was broken during the events of the evening. I do not exclude as a possibility that the chair broke when the accused stood on it. I cannot conclude that the deceased was attacked using any part of the chair as a weapon. I accept the evidence of Professor Byard that he would have expected to see evidence of tram-like bruising on the body of the deceased if she had been hit with the chair. However I am satisfied that the injury to the accused’s eye was the result of a piece of the chair entering the accused’s eye when the chair broke. I accept Ms Tat’s evidence. I am satisfied that the matter removed from the accused’s eye by Ms Tat, the optometrist, was plastic and that the injury had been sustained during the events of the evening. I reject the accused’s explanation that he irritated his eye when brushing it with a sleeve of a jacket at the Left Hand Club.
The accused’s DNA was located in a blood-like stain on the right side of the spa. The accused suffered an injury to his hand between the ring finger and middle knuckle. The prosecution submit that it is open to me to conclude that the injury was a result of punching the deceased whilst in the spa. I cannot exclude the possibility that the cut to the accused’s hand was the result of an injury he sustained earlier when dismantling the glass washer at the Left Hand Club. I also cannot exclude the possibility that the blood-like staining on the right side of the spa was deposited there as a result of the wound on the accused’s hand opening or the scab being dissolved in the spa. It follows that I draw no conclusion adverse to the accused from the injuries to his hands.
The accused lied to Police. He initially lied about what time he left the deceased’s home that evening and about her driving him home. He also lied to police about how he sustained the injury to his foot. As I have previously stated, I do not conclude that he lied out of a consciousness of guilt. His conduct in leaving the deceased, not contacting anyone for help and subsequently lying about his movements are matters which cause me to doubt his credibility. Much of his evidence lacked particularity. I accept that he may have panicked and attempted to distance himself from the events of that evening because of a fear that he might be accused of murdering the deceased, but I consider much of his evidence was tailored to attempt to explain facts which together with other facts point to him having caused the deceased’s injuries.
Intoxication
I am satisfied that both the deceased and the accused had consumed a significant quantity of alcohol. Defence counsel do not submit that the accused was so intoxicated that he was incapable of forming the intent to cause grievous bodily harm or kill the deceased. In my view, this concession is properly made and I so conclude. I have considered the requirements of s 268 of the Criminal Law Consolidation Act 1935 (SA). I conclude that the accused was not so intoxicated as to be incapable of forming a specific intention to kill or do grievous bodily harm. The accused gave a rational account of the events on that day and night. The accused does not suggest that he was intoxicated to such a degree that would satisfy the requirements of s 268. The accused’s intoxication is nonetheless important in considering whether the accused intended to kill or do grievous bodily harm to the deceased at the time of the assault.
I must consider whether the evidence satisfies me that at the time the accused inflicted the injuries to the deceased’s face and head that he intended to kill or do grievous bodily harm to her. I direct myself that conclusions about the accused’s intention, which might readily be inferred from the nature of the injuries inflicted if the accused was sober, might not so readily be inferred if the accused is affected by alcohol. The critical issue is whether, by reason of his intoxication, the accused might have inflicted such grievous injuries notwithstanding the absence of intention to inflict that degree of harm.[2] The ultimate question remains whether the prosecution has proved beyond reasonable doubt that the accused committed the relevant act or acts with the requisite specific intention for the crime of murder. In considering this question, I conclude that both the accused and the deceased had consumed a significant quantity of alcohol. I am satisfied that this state of intoxication informs the accused’s conduct and his state of mind. In considering the accused’s intention, I have had regard to the decision of King CJ in Wingfield. The Chief Justice said:[3]
Moreover they did not have the advantage of a direction which directly brought to bear the directions as to intoxication upon the vital issue which they had to decide. Deliberations of the jury would have been greatly assisted, in my opinion, by being reminded directly that inferences to intention which might be readily drawn from the nature of the injuries inflicted if the perpetrator is sober, might not as readily be inferred if the perpetrator is drunk, and that the critical issue for their consideration was whether, by reason of his drunkenness, the appellant might have inflicted these grievous injuries notwithstanding the absence of an intention to inflict that degree of harm.
[2] R v Wingfield (1994) 176 LSJS 14.
[3] R v Wingfield (1994) 176 LSJS 14 at 8.

More recently in R v Gardiner,[4] Peek J, with whom Nicholson J agreed, when considering specific intent in a charge of murder, observed:
There are obviously various dangers in assuming that a person on any particular occasion of performing an action in fact intended to thereby bring about what might be thought to be, on sober consideration, the natural or likely consequences of that act. One such danger is that persons acting under the influence of stress or heightened emotion may not in fact intend consequences which, on calm ex post facto analysis, appear obvious.
It is almost trite to say that one example of a situation which may produce such distracting stress or heightened emotion is a heated argument between sexual partners, the factual setting of this case.
The correct role of intoxication is in some ways similar to the above example of stress or heightened emotion: its effect may have an influence on the mental processes of an accused on the particular occasion such that one should pause before drawing the inference of a specific intent that one might otherwise draw from the proven facts. Naturally, where, as here, one places the factor of intoxication in a setting already productive of stress or heightened emotion, the cumulative or potentiating effect of all of the various factors must be carefully considered.
[Underlining is mine.]
[4] [2013] SASCFC 53, [180]-[182].
I am satisfied that the accused was significantly intoxicated when he assaulted the deceased. The extent of her injuries support the conclusion that she suffered a number of forceful blows. I conclude that the accused must have forcefully hit her on a number of occasions. I conclude that his conduct was deliberate. However, I cannot be satisfied that in his intoxicated state he intended to kill or do her grievous bodily harm. The injuries could well have been inflicted in an intoxicated state without the necessary comprehension that a sober person would have when inflicting such severe blows.
Causation
As stated earlier, the cause of death was a combination of blunt chest trauma and blunt head trauma with alcohol toxicity. I find that the injuries to the face and head of the deceased, in combination with the amount of alcohol present in her blood, substantially contributed to her death. The flail chest also contributed to her death.
I cannot be satisfied that the deceased died before the accused performed CPR. Accordingly, the question arises as to whether the injuries to the face and head of the deceased “contributed significantly to the death of the deceased or were a ‘substantial and operating cause of it’.[5]
[5] Royall v The Queen (1990) 172 CLR 378.
The conduct of the accused need not be the sole cause of the death of the deceased, but must be a substantial cause of it. In R v Hallett,[6] the Court observed:
The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is so connected with the event that it must be regarded as having sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent, or without being in the eyes of the law sufficiently interrupted by some other act or event.
[6] [1969] SASR 141, 149.
In Campbell v R,[7] in a passage accepted by the High Court in Royall,[8] Burt CJ said:
It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
[7] [1981] WAR 286.
[8] (1990) 172 CLR 378, 387, 411-12, 423.
In Royall, the formulation of the test to be applied was not stated in identical terms. Brennan J considered that the accused’s act or omission “must contribute significantly to the death of the victim”.[9] Deane and Dawson JJ observed that it would be sufficient if the accused’s conduct “is a substantial or significant cause of death”.[10] The “causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused”. Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon “whether the act of the accused substantially contributed to the death”.[11] McHugh J observed that the wrongful act must be “An operating cause and a substantial cause”.[12] What is clear is that the act of the accused must have more than a coincidental or insignificant effect. Rather, it must provide a substantial contribution towards the death of the deceased.
[9] Royall v The Queen (1990) 172 CLR 378, 398.
[10] Royall v The Queen (1990) 172 CLR 378, 411-12.
[11] Royall v The Queen (1990) 172 CLR 378, 423.
[12] Royall v The Queen (1990) 172 CLR 378, 444.
It is unnecessary to determine whether the deceased was alive when the accused was performing CPR. If the deceased was alive at the time and she sustained the flail chest as a result of CPR, I would not regard it as an intervening act breaking the chain of causation. The deceased had been badly beaten by the accused. Whatever his reason for applying CPR and whether that application was the ultimate cause of death cannot negate the conclusion that a substantial cause of death was the assault and injuries arising from that assault.
I am satisfied beyond reasonable doubt that the accused caused the death of the deceased. I am satisfied that the injuries to the deceased’s face and head were the result of an assault by the accused upon the deceased. I am satisfied that assault was a conscious and voluntary act and was committed without lawful justification or excuse.
However, I cannot be satisfied to the requisite standard, that the accused assaulted the deceased with the intention of killing her or causing her grievous bodily harm. Given the accused’s state of intoxication, I do not draw an inference that the accused intended to kill or do grievous bodily harm based on the injuries to the deceased’s face and head. As stated earlier, I cannot exclude the possibility that the accused performed CPR on the deceased. The conduct of performing CPR is, in my view, inconsistent with the accused having formed a specific intent to kill or do grievous bodily harm.
Accordingly, I find the accused not guilty of murder.
I turn to manslaughter.
A death that occurs whilst a person is committing an unlawful and dangerous act amounts to manslaughter. The prosecution is required to prove the following elements beyond reasonable doubt. First, that the accused killed the deceased. Second, that the act or acts of the accused causing the death were unlawful. Third, that the act or acts of the accused were dangerous, namely that a reasonable person in his position would have realised that his or her actions would have exposed the deceased to an appreciable risk of serious injury.
For the reasons stated above, I am satisfied that the first and second elements have been proved beyond a reasonable doubt. As to the third element, I am satisfied beyond reasonable doubt that the accused deliberately assaulted the deceased by striking her to the face and body. I am satisfied that the accused, albeit affected by alcohol, acted deliberately and intentionally when he struck the deceased. The accused had sufficient presence of mind to attempt CPR when he realised that the deceased was severely injured and did not appear to be breathing. He was able to apprehend the seriousness of the situation and the seriousness of his position to get dressed, leave the scene and walk to his house.
Turning to whether his conduct was dangerous, the prosecution must prove that a reasonable person in the circumstances of the accused, would comprehend that their conduct would expose the deceased to an appreciable risk of serious injury.[13]
[13] Wilson v The Queen (1991-1992) 174 CLR 313, 336.
I am satisfied that when the accused committed the assaults, he did so intentionally, and that his conduct was unlawful. His acts were dangerous in that a reasonable person in the accused’s situation would have realised that his acts carried with them an appreciable risk of serious injury to the deceased.
In considering the objective test of a reasonable person, that does not include the state of intoxication of the accused. In R v Wills, Lush J, with whom Murphy and Fullagar JJ agreed, explained the test as follows:[14]
If the circumstances in which the accused man’s or reasonable man’s appreciation of danger are to be assessed are to be regarded as including the ephemeral emotional and mental conditions of the accused man, the test begins to take on a subjective appearance. If it were extended to matters relating for instance, to alcohol and drugs, it would in my opinion become clearly subjective.
In my opinion it is sufficient for the present case to say that the circumstances relevant to the question whether a reasonable man would appreciate danger include the physical features of the situation and of the action of the accused man involved. I would not, for my part, include the idiosyncrasies of the accused man or his ephemeral emotional or mental state. They are matters peculiar to him which would affect his judgment of danger but the relevant judgment must be, by definition, the judgment of a reasonable man.
[14] (1983) 2 VR 201, 212.
Fullagar J observed:[15]
For the rest, I am clearly of the opinion that the circumstances of the accused’s situation which may be taken into account, whether or not they can include anything personal to him, cannot include anything personal to him which is sought to be included because it may affect his reasoning and his judgment on the question of whether the act is dangerous or not. It may be that facts of the kind sought here to be got in, which are personal to the accused man, might be got in in some circumstances if they were calculated to affect the actual qualify of the act itself as dangerous or not when viewed by the reasonable man above, as it were – a question which is wholly unnecessary to decide in this case. (That the firer of a gun knew he suffered from a palsy might provide a case in point.) But, like the learned presiding Judge, I am of the opinion that the scenario, as it were, the state of the stage on which the act is committed which must be considered, cannot include matters which are calculated to influence the judgment of the actor himself as to whether the act was dangerous or not, because that would be to bring into the equation a judgment by a man whose reason and judgment are in a morbid and clouded condition, whereas the reasonable man for the purposes of this particular rule of law is a man who judges with the unclouded reasoning power of a healthy and reasonable mind. I entirely agree with the judgment which has been delivered.
[15] (1983) 2 VR 201, 214.
I refer to the decision of Redlich J in R v Besim,[16] in which His Honour considered the development of the common law, both in the United Kingdom and Australia, concerning manslaughter by unlawful and dangerous act. Redlich J referred to the leading authority of Wilson v The Queen.[17] The High Court determined that the degree of potential harm required to render an act dangerous is serious harm, not merely any harm. Redlich J considered the objective test. He concluded:[18]
The expression “a reasonable man in the accused’s position performing the very act the accused performed” relates to the physical circumstances of the accused and the nature of the act performed by the accused as viewed by a reasonable person. It is an objective test concerned with forseeability of serious harm to the victim. Emotions passions or the mental state of the accused at the time the act was performed and which may have impaired the accused’s capacity to assess the risk are not to be attributed to the reasonable person.
While the idiosyncrasies or mental state of the accused which may diminish the accused’s capacity to reason are not to be taken into account, any knowledge possessed by the accused that would bear upon which the act was dangerous is to be attributed to the reasonable person. R v Wills and R v Dawson.
[Citations omitted.]
[16] (2004) 148 A Crim R 28.
[17] (1992) 174 CLR 313.
[18] R v Besim (2004) 148 A Crim R 28, [38]-[39].
The accused was 51 years of age at the time of the deceased’s death. He was employed for many years as a fitter and turner at BHP and later OneSteel, having completed an apprenticeship there after leaving high school. In my view a reasonable person in the position of the accused would have known that an assault consisting of repeated blows to the face of a person would expose that person to an appreciable risk of serious bodily harm.
Accordingly, I find the accused guilty of manslaughter.