R v Dupas (Ruling No. 6)
[2004] VSC 287
•5 August 2004
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1503 of 2003
| THE QUEEN |
| v |
| PETER NORRIS DUPAS |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | ||
DATE OF RULING: | 5 August 2004 | |
CASE MAY BE CITED AS: | R v Dupas (Ruling No. 6) | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 287 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Hillman S.C. with Ms M. Williams | Ms Kay Robertson, Solicitor for Public Prosecutions |
| For the Defendant | Mr J. Montgomery with Ms C. Gwynn | Mr Domenico Conidi, Victoria Legal Aid |
HIS HONOUR:
The accused man, Peter Norris Dupas, has pleaded not guilty to one count of murder that at Somerton on 4 October 1997 he murdered Margaret Josephine Maher. The Crown case has closed. Mr J Montgomery of counsel on behalf of the accused man has submitted that he has no case to answer and that I should therefore direct the jury to acquit the accused man.
The Crown case against the accused is essentially circumstantial. There were no eyewitnesses to her death. Her deceased body was found by the side of Cliffords Road, Somerton, at about 1:45 p.m. On 4 October 1997. She was lying on her side, her lower garments had been pulled down and her upper garments had been pulled up. Her left breast had been cut off after she died and had been stuck in her mouth.
The pathologist who examined her that evening, Dr Lynch, estimated that the probable time of her death was between 9 p.m. On 3 October 1997 and 7 a.m. On 4 October 1997. He also found other injuries. One injury inflicted before death was a wound above the right eyebrow caused by blunt trauma. I shall return to the other injuries later.
Dr Lynch gave evidence as to the result of the autopsy and as to toxicological analysis of specimens taken from Ms Maher's body. He made three findings of significance.
First, he found that there were signs of compression of the neck of the deceased before her death. On external examination he noted linear petechial marking on the right side of her neck. On internal examination, when he dissected the muscles of the neck, he found a small amount of bruising on the right side of the neck in a position where the mark on the skin was; that is, near the voice box. He concluded from that that there had been some form of compression of the neck before death. Beyond that he could not be more specific and, in particular, he could not postulate what had caused or brought about the compression of the neck.
The second finding of significance by Dr Lynch was that he found that Ms Maher's coronary artery was significantly blocked and that she had quite significantly advanced coronary artery disease.
The third finding of significance was based on the toxicological analysis. That analysis showed that there were traces of methadone, methamphetamine and benzodiazepines in the bloodstream of the deceased woman. Dr Lynch stated that methamphetamine, or speed, can cause the heart to beat irregularly. He noted that Ms Maher had advanced heart disease and he stated that patients with heart disease are at even greater risk of something happening to their heart if they use methamphetamine.
In relation to the methadone, Dr Lynch noted that that medication can cause respiratory depression and he stated that the ingestion of benzodiazepines can also affect the breathing.
Dr Lynch postulated that there had been three possible causes of death. First, the heart disease; second, the drugs; and third, compression to the neck.
In his evidence and in cross-examination he stated that any one of those three possible causes, either acting alone or acting in tandem with the others, could have caused death. Beyond that he was unable to say on his clinical examination that any one of those processes was the sole explanation of why Ms Maher had died.
There are three principal issues between the parties at the trial of this case, namely, first, whether the Crown establishes beyond reasonable doubt that a person caused the death of Margaret Maher by compression of her neck. Secondly, if so, whether the Crown establishes beyond reasonable doubt that the person who caused the death of Margaret Maher by compression of her neck did so with the intention to kill her or cause her really serious injury, in which case there would be a case of murder; or, arguably, by an unlawful and dangerous act which might entitle a finding of manslaughter. The third and very real issue at the trial is, in any event, whether the Crown establishes beyond reasonable doubt that it was the accused man who caused the death of Margaret Maher.
The "no case" submission made by Mr Montgomery on behalf of the accused man focused on the first two issues and centred on the evidence of Dr Lynch, which I have briefly summarised but which may be more fully found in the transcript of his evidence.
I shall first briefly consider the principles relating to and applicable to the question which is before me, that is, whether the defence has a case to answer.
The authorities make it plain that the question for me is not whether on the evidence the accused man should be convicted. That is essentially an ultimate question of fact for the jury. Rather, the question which I must determine at this stage is a more refined one of law, namely, whether on the evidence so far led by the Crown, and as it stands, the accused man could lawfully be convicted. I refer to May v O'Sullivan[1]; Zanetti v Hill[2].
[1](1955) 92 CLR 654 at 658.
[2](1962) 108 CLR 433 at 442.
Further, the authorities state that the test for me is not whether a verdict of guilty would be unsafe or unsatisfactory and thus would be set aside on appeal. Even if a Crown case is weak it must, nevertheless, be left to the jury unless on the evidence as it stands the accused man could not be lawfully convicted. I refer to R. v Doney[3]; Attorney-General's Reference (No. 1 of 1983)[4].
[3](1990) 171 CLR 207 at 215.
[4][1983] 2 VR 410 at 417.
As I have noted, the Crown case, and in particular the Crown case on the three critical issues in this case, is essentially a circumstantial case. Mr Montgomery has contended that the Crown has not excluded a reasonable hypothesis on the facts which is consistent with innocence, namely, that Margaret Maher died either from the effect of drugs ingested by her, or from her heart disease, or indeed from a combination of both factors working together, and that the signs of compression of her neck were only incidental to her death.
Mr Montgomery contends that the effect of Dr Lynch's evidence is that that hypothesis, consistent with innocence, has necessarily remained open and that it is necessarily a reasonable hypothesis. Accordingly, he has argued the jury could not lawfully convict the accused man as it could not conclude beyond reasonable doubt either that the accused man caused the death of Margaret Maher by compression of her neck, or indeed if he did so, that he did it with the requisite murderous intent or by unlawful and dangerous act.
It is necessary to briefly consider the principles relating to a "no case" submission where the Crown case is essentially a circumstantial case. Those principles were first considered authoritatively by the then Full Court of the Supreme Court in Attorney-General's Reference (No. 1 of 1983) to which I have referred. In that case the accused man was the receiver and manager of the Farmers and Graziers Co-operative. He was charged on a number of counts of theft from that co-operative. At the conclusion of the Crown case the trial judge concluded that there was a reasonable hypothesis consistent with innocence, that is, there was a reasonable hypothesis that the accused man had acted honestly and not dishonestly, and therefore he directed the jury to acquit. The Attorney-General then referred the question of law to the Full Court under s.450A of the Crimes Act, namely, concerning the entitlement and ability of a trial judge to direct an acquittal in circumstances where he forms the view that there is a reasonable hypothesis consistent with innocence at the close of the Crown case. The Full Court unanimously held that the trial judge was wrong to direct the acquittal. It held that a trial judge is neither bound nor entitled to direct an acquittal where, at the close of the Crown case, he considered that there was a reasonable hypothesis consistent with the innocence of the accused man capable of being inferred from the evidence. At p.415 the Full Court stated:
"The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury, and therefore if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude."
In its full might, and applied literally, that proposition would be fatal to the submission advanced by Mr Montgomery. However, it seems clear that that bald proposition so stated by the Full Court has been qualified to some extent in subsequent cases. And, in particular, in the decision of the Court of Appeal in R v Cengiz[5]. In that case the accused man had been charged with the murder of her disabled twin brother by driving over his body with a car. In fact, as the Crown case proceeded it became evident that the twin brother had already passed away before the accused had run over him. Thus the trial judge directed an acquittal on the count of murder. It was contended on behalf of the accused at that trial that the trial judge should also direct an acquittal on the alternative count of attempted murder, on the hypothesis reasonably open on the evidence that the accused actually believed her brother to be already deceased when she ran him over. Not surprisingly in the circumstances of that case, the Court of Appeal unanimously rejected that submission and upheld the trial judge's refusal to direct an acquittal.
[5][1998] 3 VR 720.
In considering the circumstances in which a trial judge should in a circumstantial case direct an acquittal, Ormiston, J.A. stated at p.721:
"If it can be shown that it is open to the jury to hold that all other hypotheses should be excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue, because, as is later stated in Doney, the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters."
Similarly, Harper, AJA stated the relevant test as follows[6]:
"It sometimes happens in a circumstantial case that the evidence is not in dispute but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases the judge must take the case away from the jury if, and only if, an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded."
[6]At 735.
I also refer to but do not quote passages from His Honour's judgment[7].
A similar approach is evident in the decision of the Court of Criminal Appeal of South Australia in Case Stated by Director of Public Prosecutions (No. 2 of 1993) 70 A.Crim.R. 323 at p.327. King, C.J. Stated in relation to the role of the trial judge:
"He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence."
[7]At 737-8.
Thus, on my review of the authorities, it seems clear that the test for me is whether a reasonable mind, in other words a reasonable jury, could reach the conclusion that any inference consistent with innocence was not reasonably open on the evidence. In applying that test it is important for me to bear in mind that the drawing of inferences is essentially the province of the jury as the sole judges of fact. The rationale of the jury system is that it brings into court as judges 12 ordinary persons who, based on their life experience and on their common sense, make judgments and draw inferences about facts which are presented to them. As the High Court observed in Doney and as both Ormiston, J.A. And Harper, A.J.A. Observed in Cengiz, it is the purpose and the genius of the jury system that it allows for the ordinary experiences of ordinary people to be brought to bear on questions of fact such as whether particular inferences are reasonably open on a given set of facts which are put before them.
Mr Montgomery in, if I may say so, a very skilful and forceful submission, contended that Dr Lynch's evidence was that, while there were three possible causes of death, he simply could not elevate any one of them as a cause of death. Mr Montgomery pointed to the evidence of Dr Lynch that any one of the three causes which he postulated might alone have caused death. Thus, in particular, Mr Montgomery pointed out that the effect of Dr Lynch's evidence was that Ms Maher, from a clinical point of view, might have died from advanced heart disease and/or the effect of drugs or, indeed, from the effect of the drugs acting on her heart disease.
Thus, Mr Montgomery contended that the jury could not reasonably reject Dr Lynch's evidence that Margaret Maher could have died from either heart disease or drugs or both. He stated that at the end of the Crown case that conclusion must remain open as a reasonable hypothesis.
In addition, Mr Montgomery also pointed out that there was no evidence as to how the neck compression had occurred. As I have already noted, Dr Lynch stated that the injury was non-specific and the marks which he observed could not lead to any conclusion as to how they were occasioned. He could only say that they resulted from pressure applied to the neck and that pressure was applied while Ms Maher was still alive.
Mr Montgomery contended that, insofar as the Crown relies on the cut over the right eyebrow of the deceased, which clearly occurred before her death and indeed which bled somewhat profusely, it was a matter of speculation whether that mark was caused by human intervention or whether it might have been occasioned by some other circumstances, such as a fall by the deceased onto a blunt surface.
Thus, Mr Montgomery has contended that the surrounding circumstances do not assist the Crown in elevating the compression of the neck from a possible cause to being proven beyond reasonable doubt to have been a substantial cause of her death.
Mr Montgomery also contends that Dr Lynch had all the relevant circumstances before him, such as the mutilation of the body and, in particular, the cutting off of the breast after Ms Maher died, the cut to her forehead and the dumping of the body by the roadside. Based on that, Mr Montgomery contended that the jury would not be acting reasonably or rationally if they rejected the evidence of Dr Lynch and did not act on it.
He also contended that if, contrary to those submissions, the jury could conclude that a substantial cause of death was compression to the neck, the jury could not conclude beyond reasonable doubt that that compression was caused with intent to kill or cause really serious injury, or by an unlawful and dangerous act.
In response, Ms M. Williams, of counsel, who appeared on behalf of the Crown, contended that the submission of Mr Montgomery ignored the surrounding circumstances. Ms Williams stressed the fact that this is a circumstantial case in which no single fact ought to be viewed or could be viewed in isolation. It is for the jury to draw legitimate inferences based on all of the circumstances drawn together and not considered in isolation.
In particular, Ms Williams contended that the jury would have before them the following facts, inter alia, which would be viewed as a totality and not simply as single isolated units.
Firstly, there was the fact that Ms Maher was in apparent good health before she met her death. Although on clinical analysis she had advanced heart disease, her general practitioner, Dr Marsh, and drug counsellor, Mr Dieini, had not detected any signs of cardiac disease, or indeed any untoward signs of ill-health.
Secondly, Ms Williams points to the circumstances in which Ms Maher's body was dumped and mutilated, and contended that those circumstances clearly bespeak human involvement of another person or persons at the time of death and afterwards.
Thirdly, Ms Williams points out that in those circumstances it is salient that the mark on the neck was occasioned by compression to the neck and compression while Ms Maher was alive.
Next, she points to other injuries on the deceased. In particular, while she was alive she suffered the laceration to the right eyebrow which bled profusely and was apparently not staunched before she died.
Secondly, the injury to the wrist, which according to Dr Lynch was occasioned by a sharp instrument such as a knife and which occurred at or near the time of death, in other words, at the peri-mortem stage.
Finally, Ms Williams referred again to the mutilation of the breast and stressed the importance of that as a relevant circumstance. In particular she contended that a jury could reject as fanciful the hypothesis that the person who excised the breast of Margaret Maher after she died had done so without being involved in the bringing about of her death. As a matter of common sense, she contended, forcefully, that that act of mutilation simply is not the act of a person in whose presence the deceased had died of unrelated causes, and of a person who simply happened to be there or come across the body shortly thereafter.
In relation to the issue of murderous intent, Ms Williams again pointed to the mutilation of the body, in particular, and pointed out that that act bespoke hostility and virulent hatred of the perpetrator towards the deceased. It indicated contempt for the deceased and for her life, and she submitted was powerful evidence on which a jury could infer murderous intent
It is apparent that the Crown case is based on a chain or a series of inferences principally drawn from facts which are wholly or at least substantially uncontroversial, and particularly facts relating to injuries to the deceased before and after her death and the position of her body after she died.
Applying the relevant test I must determine whether it would be irrational for a jury to conclude that there was no reasonable inference inconsistent with the inferences on which the Crown relies and will submit the jury should make.
The first issue, and one which is very much at large in the trial of course, is that of causation. In order that the jury find that the act of a person caused the death of Margaret Maher, the jury need not find beyond reasonable doubt that such an act was the sole or even the principle cause of her death. It is sufficient if it was a substantial cause, that is, it must have had more than a coincidental effect on the death of Margaret Maher, or an insignificant effect on it.
The authorities establish that such an act must make a substantial contribution to the death and that the issue of causation is viewed in a practical and common sense way. I refer to Royall v R[8], per Brennan, J. and 441 per McHugh, J. and the decision of the New South Wales Court of Criminal Appeal in R v Moffat[9].
[8](1991) 172 CLR 378 at 398.
[9][2000] New South Wales Court of Criminal Appeal 174 at paragraphs 69-72.
Based on those principles I now turn to the inferences on which the Crown's case is based.
The first inference in the Crown's chain of reasoning is that there was human involvement in the disposal and mutilation of Margaret Maher's body after she died. That inference is self-evident and irresistible and no competing inference could even be mounted to it.
The second inference is that the person who mutilated the body of Margaret Maher and who left it at Cliffords Road, was with her at the time when she died. Again, I consider that a jury is reasonably entitled to draw that inference as a reasonable inference.
Further, I would consider that a jury would be entitled to infer that any contrary inference consistent with innocence would be unreasonable, in other words, it would be open to a jury to consider that it was fanciful to infer that the person who mutilated the body simply happened along after death, found the dead body and mutilated it.
The third inference in the Crown's chain of reasoning is that the person who mutilated the body and who was with Ms Maher when she died was not simply an innocent casual bystander in the processes which brought about her death. That inference is based on a number of factors including, but not limited to, the injury to the wrist of Margaret Maher by a knife at or about the time of her death. Clearly that injury could not have been self-inflicted; clearly it must have been inflicted by someone else very close to or shortly after the time of death.
The Crown relies on the injury to the face as evidence of trauma. The Crown relies again on the mutilation of Ms Maher's body after death. In tandem, and not simply in isolation, the Crown relies on those factors as supporting a reasonable inference that the person who was present at the time of death and who then proceeded to mutilate Margaret Maher and dump her body by the roadside, was involved in physical acts of some violence towards her before she died.
In my opinion, a jury would not be acting unreasonably if it accepted that inference.
More significantly, I do not consider that a jury would be acting irrationally if it rejected the contrary inference; in other words, if the jury were to find it fanciful to infer that the person who was present and who then proceeded to mutilate the body and dispose of it, had simply been a casual bystander, uninvolved in the death. The mutilation of the body, considered in tandem with the injury to the face and the wrist, in my submission, would entitle the jury to infer that the contrary inference was fanciful.
It is in the context of those three inferences that the Crown then contends that the jury should infer that that same person applied pressure to the neck of Margaret Maher before she died. Clearly that injury was occasioned before death; that is beyond doubt. Again, Ms Williams submits, and in my view correctly, that that injury and the marks should not simply be considered in isolation. It is part of the collection of circumstances surrounding the death of Margaret Maher. In that context I consider that it would be reasonable for the jury to infer that the injury to the neck was caused at or about the time of the injury to the wrist and face, and by the same person who cut her wrist and proceeded to mutilate her.
Further, and more relevantly for the present exercise, I do not consider that a jury drawing on their experience of life and on the common sense which they bring to the jury room, would be acting irrationally if they rejected as fanciful the inference that in those circumstances the injury to the neck was either coincidental or unrelated.
I stress that the jury does not have to come to the conclusion. The question is: Is it open for them to conclude that the countervailing inference is not open? It is the drawing of inferences and the rejection of countervailing inferences, such as the type which I have been discussing, that is quintessentially the role which has been entrusted to juries for centuries.
It is for the jury and not for me to judge whether the countervailing inference consistent with innocence is reasonably open. I cannot, however, conclude that the jury must, in acting rationally, conclude that such a countervailing inference is open. In other words, I cannot conclude a jury would be acting irrationally if it were to reject the countervailing inferences consistent with innocence.
That then leads me to the conclusion that it is open to the jury to accept by a process of inferences that the person who mutilated Margaret Maher was with her when she died, acted with some force towards her and applied pressure or caused pressure to be applied to her neck. In other words, it is open to a jury to reject as unreasonable inferences inconsistent with that conclusion.
Mr Montgomery contended that, even if that were so, nevertheless, the jury could not on the evidence of Dr Lynch go any further. In other words, Mr Montgomery contended that, even if the jury were to conclude that the person who mutilated the body of Margaret Maher was with her at the time of death and before death applied pressure to her neck, they could not, nevertheless, reasonably conclude that that pressure was the cause of death. This contention again was based on the evidence of Dr Lynch who, as I have stated, concluded that Margaret Maher could have died from one or two causes which were unrelated to the compression of her neck, and in particular from the advanced heart disease and/or the effect of drugs.
Mr Montgomery contended that Dr Lynch was seized of all the relevant facts from which the Crown will invite the jury to draw inferences about the cause of death. Therefore he contends that, if the jury accept the compression to the neck caused the death of Margaret Maher, the jury would be acting irrationally and contrary to the uncontradicted and unimpeached evidence of Dr Lynch.
I do not accept that submission. It is, I consider, clear that Dr Lynch expressed his views as to the cause of death without drawing inferences as to how and in what circumstances the compression injury to the neck might have occurred. It was not for the pathologist to reconstruct events, or to draw inferences in the manner in which a jury is entitled to do so. It seems clear on the evidence of Dr Lynch that he did not venture into that field.
By contrast, the jury, by the process of inferences which I have referred to, is entitled to take various steps of reasoning to reach the conclusion, inter alia, that at or about the time of death pressure was applied to the neck of Margaret Maher by the person who later proceeded to mutilate her body.
Thus, the jury is entitled to consider the evidence and the opinions of Dr Lynch in light of whatever inferences they legitimately draw from the events and circumstances surrounding Margaret Maher's death. Of course they may not, in the upshot, draw the inferences I have referred to and they will view Dr Lynch's evidence otherwise. The question for me however is whether it is open for them to do so.
It is clear that Dr Lynch properly did decline to undertake the processes of inference drawing which is the province of the jury. It is necessary for me to refer to some passages of his evidence at p.674 of the transcript, lines 30 and following. When asked in terms of cause or possible causes of death, what did he say about it? His evidence was, "The cause of death that I've concluded, and perhaps it might help if I explain, essentially, when I'm performing a post-mortem in circumstances like that, but essentially circumstances where someone has died and there's not a very good description of what's likely to have happened around the time they died, I perform my post-mortem and look at what I find; I attach significance to those findings. Then I look at the circumstances and I reach a conclusion. Sometimes, medically, I can answer all the questions, or most of them, but sometimes the important questions I can't answer medically, the circumstances are incomplete and I'm not able to fill in those gaps. So what I constructed here was a cause of death and it is a complex sentence, it says, 'Combined drug toxicity', then I have listed some drugs, perhaps I will go back to those, 'in a woman with coronary artery atherosclerosis and subtle signs of neck compression.' So I have identified three important processes in my mind in Ms Maher. She has got evidence of a neck injury, some form of compression; she has got evidence of natural disease in the form of a blockage of one of the blood vessels to her heart; and then she also has some drugs in her system."
In cross-examination, it was put to Dr Lynch by Mr Montgomery that Ms Maher had the heart disease at such a stage that because of it she was at risk of sudden death. In answer Dr Lynch responded , "In appropriate circumstances I might be concluding that Ms Maher had a heart attack and died."
In re-examination Dr Lynch was asked to clarify what he meant by the words "in appropriate circumstances". He said that he did not have sufficient information to medically or pathologically arrow his conclusion as to cause of death, and by appropriate circumstances might mean a patient with the findings in Ms Maher, the drugs, a bit of a bruise, who is walking down the street, seen to clutch her chest and collapse. He stated in those circumstances he would be likely to reach a conclusion that Ms Maher had some form of heart attack and the coronary artery disease would be elevated into significance. He then concluded as follows, "Given I don't have an adequate description of what's happened immediately around the time of death I can only try and reconstruct so far from a pathological perspective."
In my opinion, those passages from the evidence of Dr Lynch mean that Dr Lynch did not draw the type of inferences or have the information as to the events and circumstances surrounding the death which I have found a jury are entitled to draw and find.
As I have stated, I have formed the view that a jury is reasonably entitled to infer that, shortly before the time of death, there was a compressive injury to the neck which was inflicted by the act of a person who subsequently mutilated her and dumped her body.
If the jury accept that line of reasoning, which is open to them, and only if they do so, they will then conclude that the same person who was carrying out those acts was a person ill-disposed to Margaret Maher, that he cut off her breast, put it in her mouth as a sign of contempt and hatred, and dumped her body.
In those circumstances, if the jury draws the conclusions to which I have referred, I consider that the jury would be reasonably entitled to infer that it was not merely a matter of random chance or coincidence that, at or about the time pressure was so applied to the neck of Margaret Maher, she suddenly died from unrelated causes, that is, from the heart disease or drugs.
In those circumstances, I consider the jury would be entitled to infer that the pressure to the neck was a substantial contribution to death. I also consider that the jury would be reasonably entitled to reject the countervailing inference, that is, that death in those circumstances was coincidental and was only related to the heart or drugs, as improbable and fanciful.
Once again, I stress this is a matter for the jury and not for me. It is a matter for their common sense and their good judgment. It is for them to determine whether the countervailing inference of the types contended for by Mr Montgomery are reasonable or unreasonable. But I do not consider a jury would be acting irrationally if they found that the countervailing inferences were not reasonably open in the circumstances.
Thus, for those reasons I do not accept that there is no case to answer on the basis that the jury could not reasonably consider the countervailing inference contended for by the jury to be unreasonable.
I then turn to the issue of intent.
Mr Montgomery has submitted that the jury could not infer that the person who applied pressure to Ms Maher's neck did so with the intention to kill or to cause her really serious injury. He relied on the evidence of Dr Lynch that the signs of compression on the neck were only subtle signs. He also pointed out that there was little other injury before death. The major injury, if I could call it that, before death, was the mark to the forehead. That may not have been the result of human intervention.
Mr Montgomery contended that the mutilation after death was violent but there was no comparable degree of violence before death evident on the findings of Dr Lynch. He also relied on the evidence of Dr Lynch when considering the alternative proposition of neck pressure, that Dr Lynch rejected strangulation as a possible or probable cause of death. Rather, the view of Dr Lynch was that, if Margaret Maher had died because of pressure to her neck, the mechanism by which she died was because of the stimulation of the neck under the jawbone which caused the heart to beat irregularly and then to stop.
Based on that evidence, Mr Montgomery contended that a jury would be acting unreasonably if it were to find beyond reasonable doubt by way of inference that the person who applied the pressure to the neck did so with intent to kill or to cause really serious injury. Equally, he contended that the jury could not on that evidence find that the pressure on the neck was dangerous in order to constitute an unlawful and dangerous act and, thus, manslaughter.
The submissions of Mr Montgomery in this respect do have some attraction. However, I conclude that it would not be unreasonable for the jury to reject the inference that the pressure applied to the neck was applied without intent to kill her or cause her really serious injury. Once again, as Ms Williams correctly points out, the evidence of Dr Lynch must be considered in the context of the totality of the circumstances surrounding Margaret Maher's death and not in isolation from them. As I have pointed out, albeit repetitively, there were injuries before and at the time of death, there was mutilation of the body and there was dumping of it after death. All of those form part of the circumstances in which the pressure will be argued to have been applied to the neck before death. In those circumstances, I consider that it would not be irrational for the jury to reject as unreasonable the inference that in those circumstances the pressure was applied without intent to kill or to do really serious injury.
Once again, I do emphasise that the assessment of the countervailing inference consistent with innocence and consideration of whether it is reasonable is essentially the role of the jury and not mine. I cannot usurp it. At this stage I have a more limited role and, exercising that role, I cannot conclude that the jury would be acting irrationally or unreasonably if they rejected such as a hypothesis of innocence as being unreasonable.
For the reasons which I have set out, albeit at quite some length, I dismiss the application on behalf of the accused man to direct the jury to bring in a verdict of not guilty.
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