R v Fleming; R v Maher (No 2)
[2017] SASC 17
•16 February 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FLEMING; R v MAHER (NO 2)
Criminal Trial by Judge Alone
[2017] SASC 17
Judgment of The Honourable Justice Doyle
16 February 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
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 - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - CAUSATION
Trial by judge alone. The defendants, Mr Fleming and Mr Maher, are charged with murder. The Information alleges murder under s 12A of the Criminal Law Consolidation Act 1935 (SA) (statutory murder), or in the alternative under s 11 of that Act (common law murder).
The defendants disembarked from a train at Woodville railway station at about 12.30 am on 29 October 2014. They intended to walk to an address in Ottoway, where Mr Fleming was staying at the time. At some point between 2.00 am and 2.30 am, the defendants were involved in an altercation with the deceased near the corner of Thirteenth Avenue and Hanson Road. The deceased’s body was subsequently found at that location.
The particulars of the charge of statutory murder are that on 29 October 2014, at Woodville North, the defendants committed an intentional act of violence while acting in the course of or furtherance of an offence, namely aggravated robbery, and thus caused the death of the deceased. The prosecution case is that the deceased died from a hypoxic ischaemic injury resulting from neck compression and consequential obstruction of the venous outflow of blood from his brain, and that the neck compression was the result of a headlock applied by Maher during the course of the defendants’ altercation with the deceased. It is alleged that the defendants were engaged in a joint enterprise or common purpose to rob Mr Collins when the altercation occurred and the headlock was applied. The defendants denied any such common purpose. While not conceding that they robbed the deceased, they also contended that it was reasonably possible that any such robbery was an afterthought to the altercation, rather than part of a common purpose.
In the alternative, the prosecution alleges common law murder. In relation to Mr Maher, it is alleged that he applied the headlock while intending to inflict grievous bodily harm. So far as Mr Fleming is concerned, it is alleged that when applying the headlock, Mr Maher was acting pursuant to a common purpose to inflict grievous bodily harm. Mr Maher denied any intention to cause grievous bodily harm; Mr Fleming denied any common purpose.
In the further alternative, the prosecution alleges that the defendants are guilty of manslaughter. In this respect, the prosecution case is that Mr Maher, in applying a headlock to Mr Collins, committed an unlawful and dangerous act. So far as Mr Fleming is concerned, it is alleged that when applying the headlock, Mr Maher was acting pursuant to a common purpose to commit an unlawful and dangerous act.
By way of defence, or potentially partial defence, the defendants raised the possibility that when applying the headlock, Mr Maher was acting in the defence of another (Mr Fleming) within the meaning of s 15 of the Criminal Law Consolidation Act.
In respect of all charges, the defendants denied that Mr Maher’s headlock was a substantial cause of the deceased’s death. While the pathological findings included neck compression, they also included findings that the deceased had atherosclerosis and had taken methylamphetamine in the hours leading up to his death.
Consideration of the relevance of the defendants’ intoxication to their intentions and beliefs for the purpose of the alleged offences, and defence of another under s 15 of the Criminal Law Consolidation Act.
Held:
1. The prosecution has proved beyond reasonable doubt that Mr Maher applied a headlock to the deceased and that this was a substantial cause of the death of the deceased.
2. The prosecution has not proved beyond reasonable doubt that the headlock was applied in the course or furtherance of a common purpose to rob the deceased.
3. The prosecution has not proved beyond reasonable doubt that in applying the headlock Mr Maher intended to cause grievous bodily harm, or that there was a common purpose to cause grievous bodily harm.
4. Mr Maher’s headlock was dangerous; however, it was not unlawful as the prosecution has not disproved that Mr Maher was acting in defence of another within the meaning of s 15 of the Criminal Law Consolidation Act.
5. The defendants are not guilty of statutory murder, common law murder or manslaughter.
Criminal Law Consolidation Act 1935 (SA) ss 11, 12A, 15, 15B, 137; Juries Act 1927 (SA) s 7, referred to.
McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 219 CLR 1; Miller v The Queen (2016) 90 ALJR 918; R v Tangye (1997) 92 A Crim R 545; R v Bikic [2002] NSWCCA 227; R v Ford [2016] SASC 112; Wilson v The Queen (1992) 174 CLR 313; Royall v The Queen (1991) 172 CLR 378; R v Hallett [1969] SASR 141; R v Moffatt (2000) 112 A Crim R 201; The Queen v Puckeridge (1999) 74 ALJR 373; Director of Public Prosecutions v Smith [1961] AC 290; R v Childs (2007) 98 SASR 111; The Queen v Lavender (2005) 222 CLR 67; R v Gillman (1994) 62 SASR 460; R v Clothier [2002] SASC 9, considered.
R v FLEMING; R v MAHER (NO 2)
[2017] SASC 17Criminal
DOYLE J:
INTRODUCTION
Overview
Prosecution case
Elements of the alleged offences
Joint enterprise liability
Statutory murder
Common law murder
Unlawful and dangerous act manslaughter
Defence of anotherPreliminary matters
Course of the trial
Presumption of innocence
Circumstantial evidence
Separate consideration
Assessment of witnessesEVENTS SURROUNDING THE ALTERCATION
Mr Collins and his movements prior to the altercation
Evidence of Ms Kropinyeri
Evidence of Ms Chilton
Evidence of methylamphetamine useThe defendants’ movements
Evidence of Ms Maynard
Evidence of Mr Vincent
CCTV at Adelaide railway station, on the train and Woodville railway station
Evidence of Mr Hodgson
CCTV at Liberty service station on Hanson Road and then Grand Junction Road
Evidence of Ms Reid
Evidence of Officer Bland
Items seized from Mr Fleming and Mr Maher
Forensic examinations of Mr Fleming and Mr MaherEvidence in relation to Mr Collins’ body
Evidence of Mr Harvey
Evidence of Mr Taylor
Evidence of Mr BayleyEvidence of Officer Stasic
Other evidenceEVIDENCE OF THE SCENE
DNA EVIDENCE
THE DEFENDANTS AND THEIR RECORDS OF INTERVIEW
Mr Fleming’s interview
Mr Maher’s interview
INTOXICATION OF THE DEFENDANTS
Evidence of Professor White
The back calculation
Consumption based calculation
The further bottle of rum
Effects of alcoholFINDINGS OF FACT
Mr Collins
The defendants and their movements
Timing and location of the altercation
Circumstances of the altercation
Events following the altercation
CAUSATION
Legal principles governing causation
Overview
Dr Heath’s evidence
Soft tissue injuries
Blood vessels in the neckAtherosclerosis
Post mortem examination of Mr Collins
Conclusions drawn by Dr HeathProfessor Blumbergs’ evidence
Analysis and findings
STATUTORY MURDER
COMMON LAW MURDER
The case against Mr Maher
The case against Mr Fleming
MANSLAUGHTER BY UNLAWFUL AND DANGEROUS ACT
The case against Mr Maher
The case against Mr Fleming
VERDICTS
INTRODUCTION
The defendants, Mr Tyson Fleming and Mr Arley Maher, are charged with the murder of Mr Frederick Collins. The Information alleges murder under either s 12A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (statutory murder) or in the alternative under s 11 of that Act (common law murder).
The particulars of the charge of statutory murder are that on 29 October 2014, at Woodville North, the defendants committed an intentional act of violence whilst acting in the course of or furtherance of an offence, namely aggravated robbery, and thus caused the death of Mr Collins.
The particulars of the charge of common law murder are that on 29 October 2014, at Woodville North, the defendants murdered Mr Collins.
Overview
As at October 2014 Mr Fleming and Mr Maher were 24 and 23 years of age respectively. They had been friends for a number of years. Mr Fleming was living at his cousin’s house at 55A Rosewater Terrace, Ottoway.
At around midday on 28 October 2014, Mr Maher visited Mr Fleming at that address. After spending the afternoon together, at around 5.00 pm they travelled to the Magill house of Mr Maher’s younger half-brother. They stayed at his house for a few hours, during which time they drank beer and Jim Beam with Coke as a mixer. They left between about 10.30 pm and 11.00 pm, taking with them the balance of the Jim Beam in a Coke bottle.
Mr Fleming and Mr Maher then travelled by bus into the city. They caught a train from the Adelaide railway station to the Woodville railway station. They disembarked at about 12.30 am. Shortly before 2.00 am they were walking on Hanson Road, not far from the corner of that road and Thirteenth Avenue.
At some point between about 2.00 am (when Mr Collins was last seen alive) and about 2.50 am (when the defendants were walking down Grand Junction Road towards Mr Fleming’s Ottoway address), the defendants were involved in an altercation with Mr Collins. The altercation occurred near the corner of Hanson Road and Thirteenth Avenue. Mr Collins was later found dead in the same vicinity.
Following the altercation, Mr Fleming and Mr Maher walked in a northerly direction along Hanson Road. They turned left (or west) down Grand Junction Road, ultimately making their way on foot to where Mr Fleming was staying in Ottoway.
The following morning the defendants became aware that a dead body had been located on Hanson Road. They presented themselves to the police. During the course of the afternoon both defendants participated in lengthy interviews by the police. Later in the day they were arrested.
Prosecution case
The prosecution case is that Mr Collins died from an hypoxic ischaemic injury resulting from neck compression and consequential obstruction of the venous outflow of blood from his brain through the jugular veins in his neck; and that the neck compression was the result of a headlock applied by Mr Maher during the course of the defendants’ altercation with Mr Collins.
So far as count 1 is concerned, it is alleged that Mr Fleming and Mr Maher were engaged in a joint enterprise or common purpose to rob Mr Collins when the altercation occurred and the headlock was applied.
In the alternative to count 1, and hence in the event that it is not established beyond reasonable doubt that the headlock was applied by Mr Maher pursuant to a common purpose to rob Mr Collins, it is alleged in count 2 that the defendants are guilty of common law murder. So far as Mr Maher is concerned, it is alleged that he applied the headlock while intending to inflict grievous bodily harm. So far as Mr Fleming is concerned, it is alleged that when applying the headlock, Mr Maher was acting pursuant to a common purpose to inflict grievous bodily harm.
If neither count 1 nor count 2 is made out, then it will become necessary to consider whether the defendants, or either of them, are guilty of manslaughter. In this respect, the prosecution case is that Mr Maher, in applying a headlock to Mr Collins, committed an unlawful and dangerous act. So far as Mr Fleming is concerned, it is alleged that when applying the headlock, Mr Maher was acting pursuant to a common purpose to commit an unlawful and dangerous act.
By way of defence, or potentially partial defence, the defendants have raised the possibility that when applying the headlock, Mr Maher was acting in defence of another (Mr Fleming) within the meaning of s 15 of the CLCA.
Elements of the alleged offences
As mentioned, the prosecution’s primary case is one of statutory murder. In the alternative, it is contended that the defendants are guilty of common law murder. If neither of these offences is made out, it will be necessary to consider the alternative verdict of manslaughter.
Before turning to the elements of these offences, given that the prosecution case includes allegations of joint enterprise liability, it is appropriate to commence with a consideration of what this entails.
Joint enterprise liability
In the case of joint enterprise liability, liability is imposed upon one or more defendants where those defendants acted together pursuant to a common purpose or agreement to commit an offence, and between them committed each element of that offence.[1]
[1] McAuliffe v The Queen (1995) 183 CLR 108 at 114; Gillard v The Queen (2003) 219 CLR 1 at [110]; Miller v The Queen (2016) 90 ALJR 918 at [4].
In this way, a defendant may be convicted of an offence despite his not having engaged in any of the physical elements of the offence. However, in order to be convicted it must be established that he was party to an agreement to engage in the conduct constituting the offence, and that he participated in some way in the common purpose.
A common purpose arises where a person reaches an understanding or arrangement, amounting to an agreement between that person and another or others, that they will commit a crime. The understanding or arrangement need not be express. It may be inferred from all the circumstances, including from the commission of the offence itself. It need not have been reached before the crime is committed.[2]
[2] R v Tangye (1997) 92 A Crim R 545 at 556-557.
In determining the scope of the joint enterprise or common purpose, the focus is on the acts or omissions which the parties agreed upon (or contemplated might occur, in the case of so called extended joint enterprise), rather than the identification of the particular crime constituted by those acts.[3]
[3] Gillard v The Queen (2003) 219 CLR 1 at [124].
Statutory murder
Turning to statutory murder (or constructive or felony murder, as it is sometimes called), under s 12A of the CLCA:
A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder.
The elements of constructive murder are thus:
1. an intentional act of violence;
2. the act causes the death of the deceased;
3. the act was committed while in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more.
The prosecution case is that the headlock applied by Mr Maher was an intentional act of violence that caused the death of Mr Collins. It is further alleged that the headlock was applied in the course or furtherance of a common purpose to commit an aggravated robbery[4] of Mr Collins, this being a major indictable offence punishable by imprisonment for ten years or more.
[4] Under s 137 of the CLCA, robbery involves theft accompanied by the use of force. The robbery is aggravated if committed in company.
The defendants dispute the existence of a common purpose to rob Mr Collins. They also dispute causation.
Common law murder
There are four elements of the offence of murder under s11 of the CLCA:[5]
1. an act or acts of the accused caused the death of the deceased;
2. the act or acts were voluntary (i.e. deliberate);
3. the act or acts were performed with the intent to kill or cause grievous bodily harm to the deceased, or with knowledge that the act would probably cause death or grievous bodily harm;
4. the act or acts were performed without lawful justification or excuse.
[5] R v Ford [2016] SASC 112 at [5].
Mr Maher denies that in applying a headlock to Mr Collins he intended to kill or cause grievous bodily harm to the deceased. He also denies that the headlock was applied without lawful justification or excuse, contending that it is a reasonable possibility that he was acting in defence of Mr Fleming under s 15 of the CLCA.
So far as Mr Fleming is concerned, he also denies the existence of any common purpose to inflict grievous bodily harm.
Both defendants also dispute causation.
Unlawful and dangerous act manslaughter
The elements of unlawful and dangerous act manslaughter are:[6]
1. an act or acts of the accused caused the death of the deceased;
2. the act or acts were voluntary (i.e. deliberate);
3. the act or acts were unlawful;
4. the act or acts were dangerous, i.e. a reasonable person in the position of the accused would have realised that his or her actions would expose the deceased to an appreciable risk of serious injury or harm.
[6] R v Ford [2016] SASC 112 at [10].
Mr Maher denies that the headlock he applied was either dangerous or unlawful. He contends that it was not unlawful because it is reasonably possible that it was applied in defence of Mr Fleming under s 15 of the CLCA.
Mr Fleming also denies the existence of any common purpose to commit an unlawful and dangerous act.
Again, both defendants also dispute causation.
Defence of another
As mentioned, in response to the allegations of common law murder and unlawful and dangerous act manslaughter, Mr Maher contends that his application of a headlock was not unlawful because it was applied for a defensive purpose, that is, in defence of Mr Fleming.
The operation of this defence, or in some situations partial defence, is governed by s 15 of the CLCA. That section provides:
15—Self defence
(1) It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist .
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a) in self defence or in defence of another; or
(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4) However, if a person—
(a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Relevantly for present purposes, s 15(1) requires consideration of two limbs. The first is that the defendant genuinely believed his conduct was necessary and reasonable for a defensive purpose. Defensive purpose is defined to include the defence of another. The second is that the defendant’s conduct was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. Under s 15B of the CLCA, the requirement in this second limb does not imply that the force used by the defendant cannot exceed the force used against him.
The first limb of s 15(1) involves a subjective test. The second limb involves an objective test (albeit by reference to the circumstances and threat that the defendant genuinely believed to exist).
A partial defence to murder would arise under s 15(2) if I were satisfied as to the first limb but not the second limb. The appropriate verdict in that circumstance would be guilty of manslaughter (i.e. excessive self-defence manslaughter).
As set out in s 15(5), if, as in this case, a defence under s 15 is raised, the onus lies on the prosecution to disprove the defence beyond reasonable doubt.
Preliminary matters
Course of the trial
The defendants elected for a trial by judge alone pursuant to s 7(1) of the Juries Act 1927 (SA). The trial proceeded before me over a period of 10 days, including the voir dire.
On the second day of the trial, I conducted a view of the location where Mr Collins’ body was found, the area of Fawk Reserve where certain belongings of Mr Collins were located, and the Woodville railway station. While the observations made on the view assisted me in understanding the evidence subsequently received during the trial, those observations are not evidence in the trial.
The prosecution called a number of police and lay witnesses. The prosecution also called expert evidence from two pathologists in relation to Mr Collins’ injuries and cause of death (Professor Blumbergs and Dr Heath), and a forensic scientist (Ms Mitchell) in relation to the DNA evidence relevant to this matter.
At the close of the prosecution case, both defendants made a no case to answer submission, contending that the prosecution had not established a case to answer on the issue of causation. I rejected the no case to answer submission. I indicated at the time that I would give reasons for this ruling at a later date. I have set out my reasoning in relation to the causation issue later in these reasons. It is for those reasons that I held that there was a case to answer in relation to causation.
Mr Fleming called expert evidence from a pharmacologist (Professor White) in relation to the likely level of his alcohol intoxication, and the general effects of alcohol and methylamphetamine upon a person’s functioning and behaviour.
Neither of the defendants gave evidence, and they did not call any other evidence other than the expert evidence referred to in the preceding paragraph.
Presumption of innocence
The defendants are entitled to the presumption of innocence. They can only be found guilty if I am satisfied that the prosecution has proved beyond reasonable doubt each and every element of the relevant offence.
The defendants do not have to prove anything. They are not required to put forward a positive defence, to give an explanation or to prove their defence. It is for the prosecution to disprove it.
As mentioned, the defendants elected not to give evidence. They were not required to give evidence. They have the right to decline to give evidence. I do not draw any inference adverse to them or the case they put forward as a result of their exercise of that right. There may be many reasons why they did not give evidence and I do not speculate about them.
Circumstantial evidence
The prosecution case against the defendants is in many respects circumstantial. In approaching the circumstantial aspects of the case, I must first consider the facts upon which the prosecution relies as circumstantial evidence, and decide which facts I accept as established by the evidence. I must then consider what inferences I am prepared to draw from those facts. In so doing, I must consider the totality of the circumstances, and the combined force of all the circumstances put together, regardless of the direction in which each individual circumstance may point.
Neither defendant is to be found guilty unless there is no reasonable explanation for all the accepted evidence other than that the particular defendant is guilty of the offence in question. To put that another way, if there remains any reasonable hypothesis consistent with the innocence of a defendant, that defendant must be acquitted.
Separate consideration
I must be careful to ensure that the case against each of the defendants is considered separately. The evidence may warrant the conviction of one defendant and not the other.
The need to ensure separate consideration of the case against each defendant is of particular significance when considering the police interviews of the respective defendants given that statements made in those interviews are admissible only in the case against the defendant who made the relevant statement.
Assessment of witnesses
Expert evidence was given by Professor Blumbergs, Dr Heath, Ms Mitchell and Professor White. It is a matter for me to assess the weight to be attached to their opinions having regard to their qualifications. I am entitled to accept or reject their evidence in whole or in part as I see fit.
I accept the expertise of the expert witnesses called by the parties (Professor Blumbergs, Dr Heath, Ms Mitchell and Professor White), and the evidence they gave. The inferences and conclusions that I consider can be drawn from their evidence, when considered in combination with the other evidence in the case, is the subject of detailed consideration later in these reasons.
I accept the evidence of each of the police witnesses called by the prosecution. That said, I do not understand any of the matters about which they gave evidence to be a matter of contest. Their evidence was largely as to formal matters.
I accept that each of the lay witnesses called by the prosecution (Ms Kropinyeri, Ms Chilton, Ms Maynard, Mr Vincent, Mr Hodgson, Ms Reid, Mr Harvey, Mr Bayley and Mr Taylor) were honest and reliable witnesses. Again, the substance of their evidence was not a matter of contest between the parties. Most of the issues in this case turn more on the inferences that can be drawn from the evidence, including the oral evidence.
As will became apparent during these reasons, the prosecution submitted that I should reject various aspects of the versions of relevant events given by the defendants when interviewed by the police on 29 October 2014. In assessing the reliability of their versions of events, I have taken into account my later findings to the effect that both defendants were affected by alcohol throughout the relevant events. This may have affected their perception and recollection of those events. As will become apparent, I have ultimately accepted some parts of their versions, and rejected other parts. While rejection of aspects of their versions of events is relevant to my assessment of the creditworthiness of the defendants and hence the reliability of the balance of their versions of events, it was not submitted that I should find that they told any lies that amounted to an implied admission of guilt (or reflected a consciousness of guilt) and that were hence themselves probative of the relevant defendant’s guilt of the offences charged.
EVENTS SURROUNDING THE ALTERCATION
There were a number of witnesses and items of evidence from which the events surrounding the altercation between the defendants and Mr Collins can be ascertained. A summary of that evidence follows. I have later set out the relevant findings that I have made as to the circumstances surrounding the altercation.
Mr Collins and his movements prior to the altercation
Mr Collins was born on 9 April 1965 and so was 49 years of age when he died on 29 October 2014. Upon post mortem examination he weighed 79 kilograms and was 176 centimetres in height.
Evidence of Ms Kropinyeri
Ms Joanne Kropinyeri was in a relationship with Mr Collins for about eight years. The relationship ended during 2013, although they continued to live in the same house in Second Avenue, Woodville Gardens.
On the night he died, Mr Collins left the house between about 10.00 pm and 11.00 pm. Ms Kropinyeri did not know where he was going.
At the time, Mr Collins had a Sony mobile phone that Ms Kropinyeri has not seen since. He also carried a wallet that she has not seen since. He had a set of keys that were returned to her by the police. She identified these keys in a photograph of a set of keys found next to Mr Collins’ body.
Mr Collins had glasses that he used for reading, but wore tucked on his shirt when he was not reading. He had an Adidas jacket with detachable press stud sleeves.
As at October 2014, Mr Collins was not employed. He had not been to a doctor to Ms Kropinyeri’s knowledge during their relationship. The only exception to this related to an issue with his appendix in about 2008 that required that he attend hospital. She was not aware of him taking any prescription medication, except on one occasion when he went to the dentist and was given antibiotics and panadeine forte. She was not aware of him taking diazepam or valium.
I interpolate that documents tendered at trial revealed that Mr Collins did not make any claim on Medicare or the Pharmaceutical Benefits Scheme in the approximately three year period from 1 November 2011 through to his death.
Ms Kropinyeri was not aware of Mr Collins using drugs when they commenced their relationship. However, by the end of their relationship she was aware of him smoking marijuana and “towards the end” using methylamphetamine. However, he did not use methylamphetamine in front of her and she did not know how he used it.
Ms Kropinyeri said that Mr Collins’ taking of property to get money for drugs became an issue between them. She confirmed that the Cash Converters receipt in evidence related to her computer that she shared with him, and that it was missing.
Evidence of Ms Chilton
Ms Amanda Chilton is a relative of Ms Kropinyeri, and knew Mr Collins. The last time she saw him was in October 2014. On the night in question, she saw him, and briefly spoke to him, at about 2.00 am on Hanson Road, out the front of the Finsbury Hotel. He was on the same side of the road as the Finsbury Hotel, and was walking away from the Arndale Shopping Centre.
Evidence of methylamphetamine use
As mentioned in my later summary of Dr Heath’s evidence, during her post mortem examination of Mr Collins she observed a marking in the pit of his left elbow that appeared to be an injection site. There were signs of multiple injections at that site, including one that was relatively recent (but at least about an hour or two prior to Mr Collins’ death).
Dr Heath also gave evidence of a toxicology report indicating a reading for Mr Collins of 0.31 mg per litre of methylamphetamine and 0.02 mg per litre of amphetamine. The potential relevance of this in relation to the cause of Mr Collins’ death is considered later in these reasons. However, in terms of the likely effect of the methylamphetamine taken by Mr Collins on his behaviour prior to his death, this was the subject of evidence by Professor White.
Professor White observed that the concentration given in a post mortem toxicology report reading is not always exactly the same as the concentration immediately before death. As to the significance of the concentration reported for Mr Collins, Professor White said that users of methylamphetamine commonly achieved a concentration between 0.1 and 0.3 mg per litre, but also achieved higher concentrations. At this level a person would be affected by the drug. The nature and extent of the effect would depend on the person’s tolerance and a range of other factors, but in general the person would be more alert than usual, more active, and possibly talking a bit faster. Methylamphetamine can also have a profound effect upon a user’s behaviour. They may be agitated, and may experience psychotic symptoms, particularly paranoia.
Professor White added that while repeated use resulted in tolerance to some effects, in the case of psychotic effects they often became more prominent with repeated use. A lot of very experienced methylamphetamine users experience some degree of psychotic effect on most occasions they use the drug. That experience can become more common with repeated use.
Another effect of the drug is that it may increase self-confidence and thus lead to risky behaviour. A user may also become prone to aggression, either because of their exaggerated confidence or because the psychotic effects of the drug lead to them thinking they are acting defensively, but based on irrational fears. They may act quite unpredictably because of their paranoia or psychotic symptoms, and associated delusions or irrational beliefs.
The defendants’ movements
Evidence of Ms Maynard
Ms Tamara Maynard is Mr Fleming’s former partner. On 28 October 2014 she received a text message from Mr Fleming, asking her to take him to BoysTown, a provider of employment services in Elizabeth. She collected Mr Fleming and Mr Maher in her car and took them there. After waiting for them there, they returned to her car. With the defendants in her car she drove to the Elizabeth Shopping Centre, and then to collect a friend of hers. After that she dropped the defendants at Semaphore Beach as they said they wished to go for a swim.
The defendants did not drink any alcohol while in Ms Maynard’s presence that afternoon.
Evidence of Mr Vincent
Mr Heathcliff Vincent is Mr Maher’s younger half-brother. At the time of giving evidence he was 23 years of age. Mr Vincent knew Mr Fleming through Mr Maher.
Mr Vincent recalls that Mr Maher and Mr Fleming visited him in October 2014. He believed they travelled to his house by bus. It was a Tuesday, which was Mr Vincent’s payday. They arrived late afternoon. At around 7.00 pm they walked to Liquorland where Mr Vincent purchased a bottle of Jim Beam (either 750 ml or 1 litre) and two bottles of Coke (each 2 litres). They then went to Hungry Jacks where Mr Vincent purchased the three of them some food. Mr Vincent said that buying drinks and food for Mr Maher and Mr Fleming was typical of the mutual generosity between them, depending upon who had money available on a given occasion.
They returned to Mr Vincent’s house, and started drinking. They were each drinking Jim Beam with Coke as a mixer. Mr Vincent said he was drinking fairly quickly, and that he had about eight drinks. He was not sure how much or how quickly Mr Maher and Mr Fleming were drinking, although he said that because he normally drank spirits a lot stronger than them, they probably did have a little bit less than he did. He later qualified this, saying that while they may have had more drinks than him, theirs were weaker drinks. Mr Maher and Mr Fleming stayed a total of four or five hours at Mr Vincent’s house.
Mr Vincent said that Mr Maher and Mr Fleming did not seem to him to be affected by alcohol when they arrived at his house, although Mr Maher did tell him that they had shared a six pack of what Mr Vincent assumed was beer. However, by the time they left later that evening, they were “as you would be after having a few drinks, but they weren’t overly intoxicated or anything like that. They weren’t falling over each other or anything like that.”
Mr Maher and Mr Fleming left together. There was some Jim Beam left, and they took it with them. Mr Vincent said that he had two or three beers in the fridge which were no longer there when Mr Maher and Mr Fleming left, although he could not recall if they drank them at his place or took them with them. Mr Vincent later clarified that they left with about half the bottle of Jim Beam, a litre of Coke and four 375 ml bottles of beer.
One of the defendants said to him they were headed towards the Arndale area, and Mr Vincent gave them the number of the bus that headed that way. His recollection is that they left before the last couple of buses, and so at about 10.30 pm or 11.00 pm.
CCTV at Adelaide railway station, on the train and Woodville railway station
The prosecution tendered a disc containing a compilation of CCTV footage taken in the early hours of 29 October 2014 from various cameras located at the Adelaide railway station (between about 11.55 pm and 12.15 am), on the train travelling from the Adelaide railway station to the Woodville railway station, at the Woodville railway station (between about 12.27 am and 12.29 am), at the Liberty service station on Hanson Road (between about 1.57 am and 2.00 am) and on Grand Junction Road near its intersection with Hanson Road (at about 2.49 am).
The quality of the footage varies; however, I am satisfied that the defendants can be seen in the footage at each of those locations. I am satisfied of this from my own observations of the footage. Mr Hodgson also identified the defendants in the portions of the footage from the Adelaide and Woodville railway stations. The defendants did not dispute that they appeared in the footage.
The CCTV footage not only provides evidence of where the defendants were at the various times indicated, but also enabled some observations to be made of the defendants’ actions that are relevant in determining the defendants’ levels of intoxication.
At the Adelaide railway station, Mr Fleming is shown jumping the turnstile and at one point leap frogging Mr Maher. Both of these manoeuvres involved some level of coordination or athleticism on the part of Mr Fleming. That said, and in the case of the latter in particular, as explained by Professor White, the manoeuvres may also be indicative of some level of disinhibition on the part of Mr Fleming associated with intoxication. Mr Maher is shown carrying a two litre bottle of Coke, which other evidence suggests contained a mixture of Jim Beam and Coke. Mr Fleming is seen drinking from the bottle while they were speaking with the ticket officer. Mr Fleming is also seen placing a ticket in the slot at the turnstile, and then removing the ticket without any apparent difficulty.
At the Woodville railway station, the defendants are shown disembarking from the train and then talking with Mr Hodgson, and walking along the platform. Mr Fleming can be seen carrying the Coke bottle while they are at the Woodville railway station.
The footage of Mr Fleming and Mr Maher at the Adelaide and Woodville railway stations does not demonstrate any obvious or significant impairment of either of the defendants’ physical movement. There is no readily discernible abnormality in their gait. In that respect my observations accord with those made by Professor White, namely that he did not observe any impairment of their gross motor function. That said, I approach these observations with some caution. The reasons for this caution include the fact not only that the footage is of variable quality, but also that most of the footage is at an enhanced speed. These defects may have disguised or distorted observations that might otherwise have been made of the defendants’ movements. The reasons for caution also include the evidence of Professor White, which reflects common experience, namely that a person’s perception, thinking and behaviour can be affected by alcohol without any significant outward sign of their movement or coordination being affected. A person’s level of tolerance to alcohol is significant in this context.
Evidence of Mr Hodgson
Mr David Hodgson is 25 years of age. He gave evidence of an encounter he had with the defendants in the early hours of 29 October 2014. He caught a train from Smithfield to Woodville, which included changing trains at the Adelaide railway station. He thought it was a little past 12 midnight when he passed through the Adelaide railway station. He identified himself on the CCTV footage from that station, at a time of 12.10 am. He disembarked from the train at the Woodville railway station, from where he walked to a friend’s house.
Mr Hodgson travelled on the train by himself. After disembarking he spoke to two males. He did not know them, but saw them get off the train he had been on. He spoke to them on the platform. When they parted company, the two men were in possession of an unopened 700 ml bottle of rum that they had obtained from Mr Hodgson.
>From the witness box, Mr Hodgson identified the two men as the defendants in the dock. He also recognised their faces in the footage he was shown of the defendants at a ticket counter at the Adelaide railway station at 11.58 pm.
CCTV at Liberty service station on Hanson Road and then Grand Junction Road
The Liberty service station is on the eastern side of Hanson Road, and the opposite side of Hanson Road to the intersection with Thirteenth Avenue where Mr Collins’ body was found. The service station is about a block and a half south of that intersection.
In the CCTV footage taken from the Liberty service station between about 1.57 am and 2.00 am, both Mr Fleming and Mr Maher are seen walking towards the Liberty service station on the eastern footpath and in a southerly direction. That is, they were walking away from the intersection where Mr Collins’ body was found and towards the Arndale Shopping Centre end of Hanson Road. There is no indication of any significant impairment of the defendants’ gait. Neither of them appears to be holding a bottle, or anything of significant size in their hands.
In the CCTV footage from the intersection of Grand Junction Road and Hanson Road (at about 2.49 am), although the quality of the footage is again poor, the defendants can be seen walking in a westerly direction along the northern footpath of Grand Junction Road. They were headed away from Hanson Road and in the general direction of Mr Fleming’s Ottoway residence.
Again, neither of the defendants appears to be carrying any bottle or anything else of significant size in their hands. Their gait appears relatively normal. They appear to be walking at a relatively normal walking pace.
Evidence of Ms Reid
Ms Krystal Reid was in a relationship with Mr Maher for about five and a half years. She said that Mr Maher had been working as a cook, but had stopped doing so sometime prior to his arrest on 29 October 2014. She knew Mr Fleming through Mr Maher.
Turning to the night before Mr Maher’s arrest, she recalled speaking by telephone to Mr Maher and Mr Fleming (briefly) while they were at Mr Vincent’s place. In her conversation with Mr Maher he seemed “like normal” to her.
She next saw Mr Maher at about 7.00 am on the morning of 29 October 2014 when she picked him and Mr Fleming up on Main North Road. She did so as a result of a phone call informing her that they had been pulled over by the police and asking her to pick them up.
Ms Reid said that Mr Maher and Mr Fleming both seemed fine to her when she picked them up. She drove them to Mr Fleming’s house, where she dropped Mr Fleming off. She and Mr Maher then returned to their house in Brighton. She noticed that Mr Maher had a mark on one of his arms and a bruise, and could not recall whether they had been there the previous day. When she asked him about them he said that “they got into a scruffle and he got hit”. During cross-examination, she agreed that Mr Maher also said that Mr Fleming had fought with another bloke and that he (Mr Maher) had tried to break it up.
The following morning she received a phone call from Mr Fleming. She did not speak at any length to Mr Fleming, but rather handed the phone to Mr Maher who then spoke on the phone.
Ms Reid could not recall when she received this phone call, but it was an agreed fact at trial that Ms Reid’s telephone records recorded receiving a voice call from a number belonging to Mr Fleming at 11.14 am on 29 October 2014. The call was recorded as lasting seven minutes and 40 seconds.
During the course of the phone call, a news feed came on the television to the effect that a person had been found dead on Hanson Road. After the phone call finished, Ms Reid asked Mr Maher what had happened, and he gave her a little more detail. She agreed in cross-examination that he said something to the effect that they were walking along Hanson Road and met a guy who was mouthing off at Mr Fleming; that Mr Fleming and the guy started fighting; that Mr Maher did not know how it had started; that he tried to split it up and restrain the guy; and that during his struggle with the guy, the guy said “all right”, and Mr Maher told him “don’t move, I’m gonna get off you”; that he got up and that Mr Fleming then kicked the guy. Ms Reid said that Mr Maher said to her a few times that morning that the guy was talking back to him while he was holding him, as if he could not understand how the guy might have wound up dead.
Ms Reid then drove Mr Maher to Mr Fleming’s house to collect him before taking them both to the police station. While at Mr Fleming’s house, Mr Fleming and Mr Maher had a brief conversation in her presence. Ms Reid could not remember what they discussed, but having refreshed her memory from the statement she gave to the police when the events were fresh in her memory, she agreed that Mr Maher said something to the effect that “the bloke was talking to me when I got off him”, and also said to Mr Fleming “you didn’t have to kick him in the head”.
Evidence of Officer Bland
Officer Bland was on duty at the Ottoway Police Station on 29 October 2014. At about 12.50 pm, two males attended, whom he ascertained were Mr Fleming and Mr Maher. Mr Maher said “I think we know something about the incident on Hanson Road”. When Officer Bland asked whether Mr Maher was a witness, Mr Maher responded that they had a scuffle with someone. Officer Bland cautioned him and said that he would get someone down to interview them.
Mr Maher and Mr Fleming were separately interviewed during the afternoon of 29 October 2014. I consider these interviews in detail later in these reasons.
Items seized from Mr Fleming and Mr Maher
The police seized various items from the Ottoway address where Mr Fleming was staying, including the notice of licence disqualification and alcotest results from when he was pulled over by police on Main North Road in Hillbank on the morning of 29 October 2014. These documents showed that Mr Fleming was pulled over at 5.14 am. His blood alcohol concentration was measured at 0.099 per cent at 5.36 am, and 0.097 per cent at 5.40 am.
The items seized also included some items of clothing worn by Mr Fleming on the night of 28 October 2014, including a pair of trainers. The clothes worn by Mr Maher on that night were also seized by police during the afternoon of 29 October 2014.
Forensic examinations of Mr Fleming and Mr Maher
During the afternoon of 29 October 2014, samples of DNA were taken from Mr Fleming and Mr Maher. Both men were also photographed.
The photographs of Mr Fleming show some relatively minor cuts and abrasions on various parts of his body, including his forearms, right elbow and legs. He had a more significant abrasion or wound on his left knee.
The photographs of Mr Maher also showed some relatively minor cuts and abrasions on various parts of his body, including his hands, forearms, elbows and abdomen. He had a more significant abrasion or wound on his left forearm.
Evidence in relation to Mr Collins’ body
Evidence of Mr Harvey
In the early morning of 29 October 2014, Mr Bruce Harvey was driving around the Woodville area with a friend of his. He is a collector of scrap metal, and they were searching for scrap metal in the hard rubbish on the footpaths in the area.
As they turned left off Hanson Road into a side street he saw a male person lying on the street. They drove past slowly, in first gear, but did not stop. The person was lying on his back on the road. One arm was up on the footpath, one arm was on the ground. His legs were straight on the road as well. Mr Harvey could not tell whether the male was breathing.
Mr Harvey described the male as wearing a flannelette shirt, but nothing on the bottom half of his body. His pants were about two metres away near a tree on the footpath. His shoes and socks were on the footpath as well.
Mr Harvey said the time was between 3.00 am and 3.30 am when he made these observations. He did not see anyone else in the vicinity at the time. When shown a photo of Mr Collins’ body taken by the police the following day, he said that this was the position the body was in when he saw it.
Evidence of Mr Taylor
In October 2014, Mr Richard Taylor was living in a caravan parked in the driveway of the premises at 8 Thirteenth Ave. This address is four houses west of Hanson Road, on the northern side of Thirteenth Avenue.
The police spoke to Mr Taylor at 6.35 am on the morning of 29 October 2014. The prosecution did not adduce any evidence-in-chief from Mr Taylor, but made him available for cross-examination by the defendants.
Mr Taylor recalled that on the night of 28 October 2014 he went to bed around midnight. As was his practice, he left the door of his caravan ajar to enable his cats to come and go during the night. He awoke that night to the sound of a car pulling up on Thirteenth Ave, closer to Hanson Road than his caravan. He said that this occurred at about 3.00 am. He heard two car doors open. The car continued running or idling. He then heard “a bit of an argument.” He explained that he often heard people arguing and swearing in the area, but this was “pretty over the top, yelling.” He could not hear what they were saying; it was a bit muffled. There were two voices he could make out, and they lasted for about two to three minutes. About five to 10 minutes in total after the car had pulled over, he heard two car doors slam, and the car left. Mr Taylor heard the car drive up towards Hanson Road and then turn left in a northerly direction along Hanson Road.
Evidence of Mr Bayley
Mr Damien Bayley lived in the Woodville North area in October 2014. On the morning of 29 October 2014, he was being driven to work by his partner. He was due to commence work at 6.00 am and he estimated that he travelled down Thirteenth Avenue to the intersection with Hanson Road at about 5.40 am. As they approached that intersection, he saw something in the southern gutter of Thirteenth Avenue. When his partner stopped the car and reversed slightly he saw there was a half-naked man lying in the gutter, with clothes scattered all over the grass. As they got out of car and approached the body, he saw that the man was wearing only a shirt. He described the body and clothing as being in the locations depicted in the photographs subsequently taken by the police. They did not touch the body. His partner rang triple zero. They stayed there until the police and then ambulance arrived.
Evidence of Officer Stasic
Officer Stasic and his partner were on mobile patrol in the early hours of 29 October 2014. At between 5.45 am 5.50 am they were tasked to attend Thirteenth Avenue in Woodville North. They found a man lying in the gutter on the southern side of Thirteenth Avenue, near the intersection with Hanson Road. Some clothes were strewn around on the footpath. The man had a shirt on, but was naked from the waist down. Officer Stasic checked for signs of life, but concluded that the male was dead. An ambulance soon arrived.
The scene was cordoned off and secured within two or three minutes of his arrival, preventing anyone other than the ambulance officers from approaching the body and clothing. The man was in the position shown in the photographs subsequently taken. Officer Stasic did not see any police officer move the body. He believed the various items shown in the photographs were in the positions shown when he arrived on the scene.
Other evidence
Various police witnesses gave evidence of a relatively formal nature in relation to the steps taken to ensure the integrity of the scene after the police had arrived and taken control, the items that were collected from the scene and from the defendants, the various photographs that were taken (of the scene, Mr Collins, the defendants and the items collected from Mr Fleming’s house) and the interviews of the defendants.
One of the police officers who interviewed Mr Fleming was Officer Ganley. He was an experienced police officer, and gave evidence that Hanson Road was a road along which prostitutes often picked up clients. He said it was also an area well known for drugs and violence.
EVIDENCE OF THE SCENE
Mr Collins’ body was located in the gutter of Thirteenth Avenue, adjacent to the grass verge on the southern side of the road and a few metres west of the intersection with Hanson Road. The scene was the subject of evidence from police witnesses, as well as a bundle of photographs.
Mr Collins was found lying on his back, parallel to the gutter and with his head towards the eastern or Hanson Road end of Thirteenth Avenue. His hips and legs were turned slightly to his right, and his feet were on the grass verge. He was wearing a white long sleeve top with a blue shirt over the top. He was naked from the waist down.
There were various blood stains on the road and gutter area where Mr Collins’ body was found. According to Officer Veldhoen, who gave evidence about the location and nature of the blood stains observed, most of the blood stains were consistent with Mr Collins bleeding while in the position he was found. He said that there was only one stain which was not easily attributable to Mr Collins’ positioning, and which indicated that Mr Collins was bleeding while moving. But he added that not a lot of movement would have been required to explain that blood stain.
Mr Collins had a pair of bud-style earphones around his neck. Various items of clothing were strewn around the verge or footpath within a few metres of where he was positioned. A dark cap with white trim was found on the footpath close to the intersection with Hanson Road. Closer to Mr Collins, and on the grass verge, was a pair of glasses. Alongside Mr Collins, and also on the grass verge, were an Adidas jacket (which was torn, and with the zip broken off and lying nearby), a pair of press-stud sleeves (which had been removed from the jacket), a pair of sneakers, an inside out pair of jeans with a belt and torn rear pocket, an inside out pair of socks and a pair of boxer shorts. A set of keys was found in the gutter near Mr Collins’ feet.
Later in the day, further items belonging to Mr Collins were located in Fawk Reserve. Fawk Reserve is on the western side of Hanson Road, a few hundred metres north of the intersection with Thirteenth Avenue. A number of cards and documents belonging to Mr Collins were scattered in an area of that reserve adjacent to the Hanson Road footpath. The items included a driver’s licence in Mr Collins’ name, two Medicare cards in Mr Collins’ name, a Cash Converters card in Mr Collins’ name, an EB Games card and various other cards (some of which were also in Mr Collins’ name).
The items located in Fawk Reserve also included a Centrelink income statement in the name of Mr Collins, and some receipts (four from Cash Converters and one from Cash Busters) in the name of Mr Collins. The most recent of these receipts was a Cash Converters receipt dated 28 October 2014. It evidenced a loan of $150 made at 1.03 pm in favour of Mr Collins, with an Acer laptop computer provided by way of security for that loan.
DNA EVIDENCE
Ms Natasha Mitchell is a forensic scientist from the Forensic Science Centre. She works in the biology division that examines and tests exhibits and bodily fluids for the purpose of DNA analysis. In her role as a reporting officer, she considers, analyses, interprets and reports on the DNA test results in the context of a particular case.
Before addressing the DNA testing of significance to the present case, Ms Mitchell explained in general terms the process of extracting, testing, analysing and interpreting DNA evidence in a case such as the present. She explained that in carrying out its testing, the Forensic Science Centre targeted 24 particular regions or loci of the DNA, three of which facilitated gender determination, and 21 of which are known to vary widely amongst individuals.
Ms Mitchell explained the use of a population database in DNA testing. She said that in order to determine the extent of variation in the targeted regions, the Forensic Science Centre used a statistical analysis based upon a database of information as to the frequency or rarity of the relevant segments of DNA, or alleles, in a particular region. Given that there may be differences based upon ethnicity, ancestry or race, the population database included databases of Caucasian, Aboriginal and Asian people. The results obtained are subjected to a stratification process reflective of the South Australian population across those three databases. While these databases were subsets of the entire population, the statistical analysis carried out took account of this.
Ms Mitchell also explained that when comparing two DNA profiles for the purposes of arriving at an applicable likelihood ratio, the Forensic Science Centre used a computer software program known as STRmix that assisted in performing the statistical calculations. The resulting likelihood ratio is expressed as a number. It compares two scenarios, and is an expression of the probability of a person being a contributor to the DNA profile in question, as against that person not being a contributor and hence the DNA profile originating from an unknown person.
In this case, the Forensic Science Centre obtained reference samples of DNA from Mr Fleming, Mr Maher and Mr Collins. Ms Mitchell gave evidence as to the results from the DNA analysis carried out on Mr Fleming’s trainers, Mr Maher’s forearm and t-shirt, Mr Collins’ jeans and socks, and the EB Games card found in Fawk Reserve.
The results may be summarised as follows:
Sample Description Presumptive Tests Number of contributors to profile Potential contributors Likelihood ratio Mr Fleming’s trainers
Tapelift – inner heel and inner tongue of the right shoe N/A Mixed DNA profile – four contributors
Largest contributor 80%; Contributor 4 17%
Collins is a contributor
Fleming is a contributor
Maher is a contributor
> 100 billion
> 100 billion
8500
Swab – blood-like stain on the outer upper right side of the right shoe Positive reaction to a presumptive test for blood Single source DNA profile Collins is a contributor > 100 billion Swab – blood-like stain on the outer right side of right shoe Mixed DNA profile – two contributors
Contributor 2 contributed approximately 99% of the DNA
Collins is a contributor
Fleming and Maher excluded
> 100 billion
Mr Maher’s forearm
Swabs Positive reaction to a presumptive test for blood and saliva
Mixed DNA profile – three contributors
(Maher assumed to be one of the contributors)
Unable to tell whether the contributions came from blood or saliva
Collins is a contributor
The hypotheses of whether Fleming is a contributor or not are equally supported.
> 100 billion Mr Maher’s t-shirt
Cutting – blood-like stain on outer front right sleeve Positive reaction to a presumptive test for blood Mixed DNA profile – three contributors Collins is a contributor
Maher is a contributor
The hypotheses of whether Fleming is a contributor or not are equally supported.
> 100 billion
> 100 billion
Mr Collins’ jeans
Tapelift – inner and outer opening of rear left pocket
N/A Mixed DNA profile – four contributors Maher is a contributor
Collins is a contributor
Fleming
> 100 billion
> 100 billion
Excluded
Cutting – blood-like stain on front left knee Positive reaction to a presumptive test for blood Single source DNA profile Fleming is a contributor > 100 billion Cutting – blood-like stain above left rear pocket Positive reaction to a presumptive test for blood Mixed DNA profile – three contributors Fleming is a contributor
Collins is a contributor
The hypotheses of whether Maher is a contributor or not are equally supported.
16 billion
> 100 billion
Mr Collins’ first sock
Stain on the outer upper foot Positive reaction to a presumptive test for blood Mixed DNA profile – two contributors Fleming is a contributor
Collins and Maher excluded
> 100 billion Mr Collins’ second sock
Stain on outer toe region Positive reaction to a presumptive test for blood Mixed DNA profile – two contributors Fleming is a contributor
Collins and Maher excluded
> 100 billion EB Games card
Swab – surface of EB Games card N/A Mixed DNA profile – three contributors Maher is a contributor
Collins is a contributor
Fleming is not a contributor
3.7 million
> 100 billion
> 100 billion
I note the following matters by way of elaboration upon the results summarised in the above table.
· The determination of the number of contributors to the DNA profiles obtained involved an assessment of the number of contributors by considering the number of peaks per locus on the electropherogram. This number was thus determined by the scientist and was an input or assumption fed into the STRmix calculations. Based on this information, STRmix was then used to determine the approximate percentage contribution to the mixed DNA profile by each contributor. For example, in the case of the tapelift from the inner heel and inner tongue of Mr Fleming’s right shoe, the scientist determined that the DNA profile obtained was a mixed one, with four contributors. STRmix assessed that the largest contributor provided 80 per cent of the DNA in the sample, with the next largest contributor (contributor 4) providing 17 per cent of the DNA.
· In giving evidence as to the likelihood ratios associated with the potential contributors to the DNA samples identified in the table above, Ms Mitchell was careful in her articulation of the meaning or significance of the numbers provided. For example, in the case of the tapelift from the inner heel and inner tongue of Mr Fleming’s right shoe, she explained that the likelihood ratio of greater than 100 billion from Mr Collins in respect of this sample meant that it was greater than 100 billion times more likely to have obtained this mixed DNA profile if Mr Collins and three unknown individuals were the source of the DNA than if four unknown individuals were the source. She said that a “verbal equivalence” of this was that the analysis provided “extremely strong” support for Mr Collins having contributed DNA to the sample.[7] She articulated the likelihood ratio in relation to Mr Fleming in equivalent terms. In the case of Mr Maher the only difference was that the “verbal equivalence” of the likelihood ratio of 8,500 was “very strong” support rather than “extremely strong” support for him having contributed to the sample.
· In the case of the single source DNA profiles, such as the swab of the blood-like stain on the upper right side of Mr Fleming’s right shoe, the result indicated that it was 100 billion times more likely to have obtained that DNA profile if Mr Collins were the source of the DNA rather than an unknown individual.
· The presumptive tests for blood or saliva were, as the name suggests, presumptive rather than conclusive. In respective of both there was a risk of false positives on account of the testing agent reacting with other substances. The risk was higher in relation to the presumptive test for blood because of the greater number of reacting substances.
· In the case of the swabs from Mr Maher’s arm, the approach was slightly different because it was assumed by reason of the source of the swabs that Mr Maher was a contributor. Thus the likelihood ratio for Mr Collins being a contributor to that sample (greater than 100 billion) was articulated by Ms Mitchell in terms that it was greater than 100 billion times more likely to have obtained that mixed DNA profile if Mr Maher, Mr Collins and one unknown individual were the source of the DNA, rather than Mr Maher and two unknown individuals being the source of the DNA. In respect of that same sample, the two hypotheses of Mr Fleming being a contributor or not being a contributor were equally supported. In that sense, the sample was inconclusive as to whether Mr Fleming was a contributor.
· The results from a particular sample do not identify the cellular material that was the source of the DNA question. It may have been skin, sweat, blood or saliva.
· The results also do not enable determination of whether the DNA was present by reason of the direct contact or deposit of that cellular material at the site in question, or by reason of a secondary transfer via another individual acting as an intermediary, or indeed a tertiary transfer.
· There was also a danger in relying on the precise location of DNA on an exhibit as indicative of contact with that particular location because of the risk of movement or transfer of DNA. For example, DNA may move from one area of an exhibit to another area through the process of it being stored or moved in an exhibit bag.
[7] Ms Mitchell used the same description of “extremely strong” in respect of all likelihood ratios of greater than 100 billion, as well as the likelihood ratio of 16 billion for Mr Fleming as a contributor to the stain above the left rear pocket of Mr Collins’ jeans.
Ms Mitchell was cross-examined extensively as to the accuracy and reliability of the STRmix software and calculations. She acknowledged that certain criticisms of the software had been made by other scientists, particularly in the context of the interpretation of DNA profiles involving four or more contributors where one or more of the contributors contributed less than 20 per cent of the DNA sampled. However, Ms Mitchell maintained her belief in the accuracy and reliability of the results about which she gave evidence, explaining that the STRmix software used by the Forensic Science Centre had undergone an extensive validation process to address some of the criticisms made, and this had demonstrated its accuracy and reliability. Further, and whilst aspects of the software’s algorithm remained a ‘black box’, much of the methodology used had also been published in peer reviewed journals. Ms Mitchell did not accept that there was a risk that the samples which she concluded in this case were DNA profiles with four contributors in fact came from more or less contributors. Her assessments of the number of contributors in this case had been peer reviewed and she considered them to be accurate.
Ms Mitchell acknowledged that the determination of the number of contributors to a DNA profile was ‘subjective’ in the sense that it was determined by the forensic scientist and was included as an input to the STRmix calculation rather than being an ‘objective’ output of the STRmix software. However, as she explained, this determination involved the informed application of the scientist’s experience and expertise in interpreting DNA profiles. Any subjectivity was therefore informed subjectivity. While a scientist might decide to remove or ignore a particular peak in interpreting a profile, they would only do so as a result of a process involving two independent scientists and for good reason (for example, identification of an artefact).
Ms Mitchell was cross-examined as to the limitations of the population databases used by the Forensic Science Centre. She said that the Aboriginal database used included around 400 individuals, but she did not know off the top of her head how many indigenous groups were included in the database. While accepting that different populations or ethnicities might have differing allele frequencies, or differing variations in certain parts of the DNA profile, she did not accept that this rendered the results unreliable in respect of an indigenous group (or some other ethnicity) not represented in the database. She explained that the likelihood ratio calculation made allowance for this “sampling variation”. She added that, particularly in cases where there was quite a strong likelihood ratio and a lot of DNA profile information, the application of a different population database would not generally change the likelihood ratio significantly. While information as to ethnicity might enable further calculations to be carried out, she regarded the results obtained in this case as reliable and accurate.
THE DEFENDANTS AND THEIR RECORDS OF INTERVIEW
As mentioned, both defendants were separately interviewed during the afternoon of 29 October 2014. The prosecution tendered an audio-visual recording of each interview. While the Court was provided with transcripts of the interviews as aide memoires, the video recordings (and not the transcripts) constitute the evidence of what was said during the course of those interviews.
I also remind myself that while each defendant’s record of interview is admissible in evidence against him, they are not admissible as against the other defendant. Further, while the record of interview of each is admissible on the basis they contain admissions, it is accepted that the entirety of those records of interview are admissible in the case against the particular defendant the subject of the interview. In other words, both the inculpatory and exculpatory aspects of the interview of Mr Fleming are admissible in the case against him, but not in relation to the case against Mr Maher. Similarly, both the inculpatory and the exculpatory aspects of the interview of Mr Maher are admissible in the case against him, but not in relation to the case against Mr Fleming.
Mr Fleming’s interview
Mr Fleming said that he was 24 years of age and of Aboriginal background. He had known Mr Maher since he was about 12 years of age. As at 28 October 2014, Mr Fleming was staying at his cousin’s house at 55A Rosewater Terrace.
On that day, Mr Maher came to his at about midday. During the afternoon his former partner, Ms Maynard drove them to BoysTown in Elizabeth so that he could get a food voucher. Ms Maynard then drove them to do some food shopping, and to drop the shopping at Mr Fleming’s house. She subsequently drove them to Semaphore where they planned to go swimming.
Mr Fleming said that he did not usually drink and had not done so for a couple of weeks. However, they each purchased a six pack of beers from a bottle shop in Semaphore which they drank. They commenced drinking at about 3.00 pm that afternoon.
Mr Fleming and Mr Maher travelled by train and bus to the home of Mr Maher’s brother, Mr Vincent, in Magill. They continued to drink with Mr Vincent. Mr Fleming and Mr Maher each had a beer from Mr Vincent’s fridge. They also started drinking a bottle of Jim Beam that they bought from a nearby bottle shop. They were drinking it mixed with Coke.
After a few hours, Mr Fleming and Mr Maher left Mr Vincent’s house. They walked to the bus stop and caught a bus then train. While he did not remember being in the city, Mr Fleming thought they passed through the city and then ended up getting off the train in Woodville. He could recall getting in trouble on the bus for being too loud. They were still drinking the Jim Beam at that stage, but from a Coke bottle.
Mr Fleming said that when they got off the train he was not sure where they were, and a man in his late forties in a red car gave them a lift to a service station near the Arndale Shopping Centre end of Hanson Road. Mr Maher bought a packet of cigarettes from the service station. He gave some to the man in the red car who then drove off. Mr Fleming thought that Mr Maher left his phone in that man’s car.
Mr Fleming recalled walking north along Hanson Road, on the left hand side of the road. They had finished drinking by that stage. They came across a man who was initially walking in the opposite direction, but then ended up walking with them. He and the man were talking.
When first asked to describe the altercation that ensued, Mr Fleming described it in the following terms:
And then a male, a male approached us and then I was walking along and then we ended up in a scuffle and then the bloke ended up on top of me and then the mate of mine went up to him like come up to us and then grabbed him and pulled him off me and put him into a head lock and then I kicked him and then that was it, really, and then we just left and then we heard about this and then we said that’s probably what, that’s probably us, so we obviously had to come down here and let yous know.
Mr Fleming later said that they “got confronted by a male”, and that he and the man ended up in a scuffle. He could not recall what they were talking about, but did not think they were fighting. He said he did not have a clue how the fight started. Mr Fleming described the man as pretty big and maybe Aboriginal.
Mr Fleming said the fight was on the footpath of Hanson Road, on the corner of a street. He later said they left the man on the grass verge. He said that no punches were thrown; the man threw him to the ground and landed on him; Mr Fleming was on his back and the man was on Mr Fleming’s stomach; they were wrestling. Mr Fleming went to ground and that is when Mr Maher became involved, and put the man in a headlock and pulled him off Mr Fleming.
Mr Fleming then said:
QArley [Maher] came from behind, his arm locked around this other guy’s neck
AYep
QAnd do you know if the other guy could breathe
AWell obviously not if he’s in a headlock
QOk, no I just didn’t know how tight the headlock was
AOh I don’t know
QOk all right so what happened next
AUm then I kicked him and then I
QSo you would have had to have stood up
AYeah I stood up
QAnd kicked him
AYep
QWith your
AShoe like with my foot, oh
QYeah, yep which foot do you know
ARight foot
QWith your right foot, right foot, how many times
AJust once, but I don’t know why I done it, yeah just once
QWhere did you kick him
AIn the face
QOk, did you know what impact that made
ANo I didn’t leave no marks or any blood or anything
QIt didn’t
ANah
Mr Fleming later added:
QSo Arley was holding him in the headlock when you kicked him
AYep
QSo he wasn’t able to move
ANo
QOr was he able to protect his face
AUm yeah he had his, he had his hands
QOk so even though he was in the headlock he was able to get his hands up, did your kick connect with his face or his hands or
AIt definitely got his hands, it would have, I’m guessing it would have got his face
QOk but can you be certain where you kicked him in the face or not
AI did, I did try and kick him in the face
QOk do you know what side, or what part of the face
ANo
QWas it not, not the back of the head but the actual front of the face
AYes
QOk and just the 1 time
AYeah
QOkay and then what happened next
AAnd then he was, Arley was just holding him in the headlock
QYep
AAnd then
QHow much longer did Harley, Arley hold him for
AUm a little bit
QYou’re talking seconds or minutes
ANo not minutes, no I don’t think, no it wasn’t minutes no way
QWhat was the guy, the other person saying
AHe wasn’t talking, he couldn’t breathe obviously
QWas, was he conscious
ANot when he let him go
QHe was unconscious
AYeah
QWas he, was he breathing
AI didn’t see, I don’t know
QWas he, did you check
ANo
QYou didn’t, yeah I know, it might be an unusual question
A(undecipherable) we just got scared and took off
QBut did you attempt to do any first aid
A(undecipherable) no
QTo see if he was all right
AWe just got scared and then just took off
QWere you concerned that he might have been seriously injured
AYeah, it’s like we just got scared and left
Mr Fleming also said:
QOk and you, you, you thought that maybe he was unconscious
AYeah he was, he wasn’t talking
QWas he conscious before you kicked him in the head
ANo
QYou think he was already unconscious when you kicked him in the head
AYeah
QDo you think he was unconscious as a result of the headlock being applied
AI would not have a clue
QAll right, so he wasn’t saying anything
ANo
QGesturing you to try and stop, why, why did you kick him in the head if he was already unconscious.
ACause I was drunk
QOk
AI think that’s pointless, there was no point really
QWhat, what were you intending to do when you kicked him
AJust getting him back for chucking me to the ground
Mr Fleming recalled the man’s jacket coming off during the altercation. But he did not recall any of his other clothes coming off or being removed. He said that the man was clothed when they left him. When asked whether in the scuffle he had “ripped anything off”, Mr Fleming answered “possibly”. But he again later denied removing or taking the man’s clothes, whether to embarrass him or otherwise. He acknowledged that the man’s jacket came off, but said “I’m pretty sure his pants didn’t end up coming off”.
Mr Fleming said he did not know whether the man had a wallet, phone or money. He denied taking anything from him. Later in the interview, he said that he felt the man’s front pockets but that he had nothing, and that he (Mr Fleming) took nothing. He said that he felt his pockets before he kicked him and so while Mr Maher had him in a headlock. His intention in doing so was “probably” to take any money he had. He clarified that he did not put his hands in the man’s pockets, but rather patted him down.
Mr Fleming said that after kicking the man he then left, and after a short while Mr Maher joined him. They continued walking along Hanson Road in a northerly direction towards Grand Junction Road, before turning left (west) down Grand Junction Road towards the house where he was staying. He denied that he or Mr Maher threw any items from Mr Collins into a reserve on Hanson Road (i.e. Fawk Reserve).
In response to further questioning about the headlock and the searching of the man, Mr Fleming said:
QSo how long do you think Arley had him in that headlock for
AA bit
QSo if we, we talk about time I know it’s a difficult but we talk about 30 seconds or a minute longer
AProbably longer I’d say
QOk
AYeah
QWas this guying having difficulty breathing do you know
A I’d say so
QOk was he trying to say anything
ANot that I can recall
QOr was he clawing at Arley’s
AYeah
QArm or anything like
AYep
QWas Arley injured at all in this fight
AI’m not too sure
QOk it was at that time you decided to go through the pockets, didn’t find anything
AYep
QBut clearly the man was no longer a threat to you, but you still decided to kick him in the face
AYeah
QPurely because of
AMm
QThe inconvenience he put you through
ABecause he put me on the ground and I thought …
QSure did, did you think he started the fight
APossibly
QYeah
AThere was no reason
QNot, not a case that you two decided to rob him
ANo
QOn the way home
ANo
QFor some money
AYeah
QNo
ANo definitely no
QOk
AArley had money
QArley had money, how much did Arley have
AI don’t know
QBut he had some
Having mentioned above that the headlock lasted for more than 30 seconds to a minute, Mr Fleming later said that the entire scuffle lasted “a couple of minutes”.
According to Mr Fleming, after arriving back at the house where he was staying, they then drove out towards Munno Para to meet a Facebook friend of his, Ms Tia Baracloff. He denied returning to the scene of the altercation. Ms Baracloff did not turn up and they were driving back to Mr Fleming’s house when they were pulled over by the police. Mr Fleming failed the alcotest, lost his licence and had his car impounded. Mr Maher’s partner, Ms Reid, collected them and drove Mr Fleming to his house.
So far as Mr Fleming is concerned, my finding that Mr Collins was unconscious by the time the headlock was released is supported by his admissions to this effect in his police interview.
In summary, I find beyond reasonable doubt that Mr Collins fell unconscious while in the headlock applied by Mr Maher. I also find beyond reasonable doubt that the headlock and consequential neck compression caused Mr Collins’ death.
STATUTORY MURDER
I have earlier set out the elements of this offence.
The first two elements have been established beyond reasonable doubt. I am satisfied beyond reasonable doubt that Mr Maher subjected Mr Collins to a headlock and that this constituted an intentional act of violence that caused the death of Mr Collins.
However, so far as both defendants are concerned, guilt of statutory murder also requires that I be satisfied beyond reasonable doubt that this headlock was applied in the course of, or in furtherance of, a common purpose to commit an aggravated robbery of Mr Collins. I have earlier explained that the existence of this common purpose requires an agreement or understanding that they would rob Mr Collins, albeit that the agreement or understanding need not have been express and may be inferred from all the circumstances, including the commission of the offence.
In support of its case that I should find a common purpose on the part of the defendants to rob Mr Collins, the prosecution relies upon an inference drawn from a combination of the following matters: the lack of detail in the versions given by the defendants in their police interviews of their movements in the lead up to the altercation, and of their interaction with Mr Collins prior to the altercation commencing, despite the proximity in time of these interviews to the events in question; the evidence suggesting that the defendants did not have any, or at least not much, money available to them that night; the evidence to the effect that Mr Collins was searched (in an apparently thorough manner) and that his wallet and its contents were taken; and in the case of Mr Fleming, his admission that during the altercation he felt Mr Collins’ pockets and that his intention in doing so was probably to take any money he had.
The defence case, on the other hand, is that the prosecution has not excluded as a reasonable possibility that the altercation occurred as the defendants said in their interviews, and hence without any agreement or common purpose to rob Mr Collins; and that it was reasonably possible that they did not rob him, or alternatively that any robbery by them of Mr Collins occurred as an opportunistic afterthought. In support of this, the defendants rely not only upon their records of interview and their intoxicated states, but also the evidence to the effect that Mr Collins was affected by methylamphetamine at the time he encountered the defendants and hence the possibility that this explained, or at least contributed to, the commencement of the altercation.
The defendants emphasise both the content of their respective police interviews (with both of them attributing the commencement of the altercation to Mr Collins), as well as their conduct in voluntarily presenting themselves to the police station and agreeing to be interviewed. The prosecution, on the other hand, contends that I should attach little significance to these matters, and particularly the self-serving aspects of those interviews. In support of this contention the prosecution points to the opportunities on the morning of 29 October 2014 for the defendants to have colluded as to what they would tell the police. The prosecution contends that I should reject the defendants’ versions of the commencement of the altercation, and find instead that the altercation (including the headlock) occurred pursuant to an agreement or understanding between the defendants to rob Mr Collins.
I have earlier rejected the contention that I should find that the defendants colluded, or that I should otherwise reject the general effect of their statements as to the circumstances of the altercation. In making the findings set out earlier in these reasons, I have accepted some aspects of their versions and rejected other aspects.
I have earlier made findings as to the defendants’ movements in the period leading up to the altercation. While I have found that they had little or no money available to them at the relevant time, I am not prepared to find that they were wandering around Hanson Road looking for an opportunity to rob someone. Even taking into account my finding that the defendants (or at least one of them) did subsequently take Mr Collins’ wallet and its contents from him, I am not prepared to find beyond reasonable doubt that either of them intended to rob Mr Collins prior to the altercation commencing, let alone that they had an agreement or common purpose to rob him.
In my view, given that the defendants were intoxicated and that Mr Collins was affected by methylamphetamine, it is reasonably possible that the altercation commenced in the relatively spontaneous and unexplained way described by the defendants. I accept that it is reasonably possible that upon crossing paths with Mr Collins, Mr Fleming attempted to engage him in conversation. I accept that it is reasonably possible that Mr Collins interpreted Mr Fleming’s conduct in this respect as posing some threat to him, or as otherwise unwelcome. As Professor White explained, the potential effects of methylamphetamine include not only aggressive and unpredictable behaviour, but also paranoia and psychosis (particularly in experienced users). Such effects may have resulted in Mr Collins misinterpreting any exchange with the defendants, and responding aggressively. Professor White agreed, for example, that if Mr Fleming had put his arm around Mr Collins’ shoulder, then Mr Collins may have misinterpreted this as an aggressive move on the part of Mr Fleming. Given Mr Fleming’s intoxicated state, it is entirely possible that he made contact with Mr Collins, or otherwise invaded his personal space, in a manner that Mr Collins might have interpreted as being aggressive. It is also entirely possible that some misunderstanding of this nature led Mr Collins to act aggressively himself.
I have taken into account my earlier finding that one of the defendants did take Mr Collins’ wallet, and that one or other of them may have been responsible for removing his clothing after the conclusion of the altercation. While these are consistent with, and indeed probative of, an earlier intention and agreement or common purpose to rob Mr Collins, I do not consider them sufficient to enable me to be satisfied of this beyond reasonable doubt. I am not satisfied that the prosecution has excluded as a reasonable possibility that the theft of the wallet, and any search by the defendants of Mr Collins, occurred as an afterthought. Any such afterthought may have been a product of not only greed (or a general desire for money) but also a desire to punish Mr Collins for the altercation.
In reaching this conclusion, I have relied to some extent on the defendants’ versions of the circumstances leading to the altercation. In so doing, I have not overlooked the doubts I have as to the truth and reliability of some aspects of their evidence, and the opportunities they had to discuss and agree to give an untruthful account of the altercation that placed the blame with Mr Collins rather than a common purpose of robbing Mr Collins. However, in the ultimate analysis, I cannot exclude as a reasonable possibility that the altercation occurred in essentially the circumstances described by the defendants in their interviews, and hence in the absence of any intention or common purpose to rob Mr Collins– with the theft of his wallet, and any search by the defendants of Mr Collins, occurring as an afterthought.
For these reasons, I am not satisfied that the third element of statutory murder has been established beyond reasonable doubt as against either defendant.
COMMON LAW MURDER
The four elements of common law murder have been set out earlier in these reasons. I shall address first the case against Mr Maher, and then the case against Mr Fleming.
The case against Mr Maher
I am satisfied that the first two elements have been established beyond reasonable doubt. I am satisfied beyond reasonable doubt that Mr Maher acted voluntarily in applying a headlock to Mr Collins, and that this caused Mr Collins’ death. While I have found that Mr Maher was affected by alcohol at the time he applied the headlock, it was not suggested (and I do not accept) that his level of intoxication was such as to give rise to any doubt as to the headlock being voluntary or deliberate (i.e. Mr Maher’s “basic” or “general” intention).
The third element requires proof beyond reasonable doubt that the act in question (the headlock) was performed with an intention to kill or cause grievous bodily harm to the deceased (Mr Collins), or at least with knowledge that the act would probably cause death or grievous bodily harm.
The concept of “grievous bodily harm” connotes a more serious type of injury than merely actual bodily harm. It connotes really serious bodily harm or injury.[20]
[20] Director of Public Prosecutions v Smith [1961] AC 290 at 334; R v Ford [2016] SASC 112 at [8].
In the absence of any admission of an intention to kill or cause grievous bodily harm, the issue must be approached as an inference to be drawn from circumstantial evidence. In some cases, findings as to the nature of the injuries or the manner in which they were inflicted will enable an inference to be drawn that the defendant acted with an intention to kill or cause grievous bodily harm.
The difficulty in this case for the prosecution in making out this element of the offence of murder is the limited nature of the findings I have been able to make as to the circumstances of the altercation, and in particular Mr Maher’s involvement in it. I have found that Mr Maher applied a headlock to Mr Collins, and that this caused Mr Collins’ death. However, I do not consider that I am able to make any specific findings as to the degree of force applied by Mr Maher, or the duration of that force.
The expert evidence – even assuming the correctness of my finding that the headlock was sufficient to render Mr Collins unconscious and then dead – does not take the matter very far. Neither Dr Heath nor Professor Blumbergs expressed any opinion as to the degree of force applied by Mr Maher, or the duration of that force. Dr Heath’s evidence was that she could not determine the degree of force applied from her post mortem examination of Mr Collins’ body. She described Mr Collins’ neck injuries as fairly minor, and could not exclude the use of a relatively low force. While it is implicit in my finding of causation that Mr Maher applied sufficient force to obstruct the flow of blood through Mr Collins’ jugular veins, the evidence does not establish that this required more than a relatively low level of force. Nor does the evidence reveal the impact that Mr Collins’ atherosclerosis or methylamphetamine consumption might have had on the force (or duration) of the headlock required to result in death.
As to the duration of the headlock, I have earlier summarised the relevant passages from Mr Maher’s police interview. In that interview, he described himself approaching Mr Collins from behind (while Mr Collins was on top of Mr Fleming), grabbing him in a headlock, and pulling (or “reefing” him) off Mr Fleming and onto him (Mr Maher), before rolling Mr Collins around so that he ended up on top of Mr Collins and holding him face down in a headlock. Mr Maher acknowledged that he held Mr Collins for “a good couple of minutes”. He later estimated that the scuffling in which he was involved lasted about “30 seconds to a minute, two minutes maybe”. Mr Maher denied that Mr Collins’ body ever went limp, stating that Mr Collins was trying to push up. Mr Maher said that he then told Mr Collins that he was going to get off him, telling him not to get up and try and hurt him. He said that Mr Collins replied, saying something to the effect that he was going to stop. Based on Mr Maher’s evidence I am satisfied that the headlock was more than momentary, and that it probably lasted for a couple of minutes. However, I do not consider that I can make any further or more precise finding than that.
For the reasons I have explained elsewhere, I am not satisfied that Mr Maher acted in any premeditated way, or with an intention at the outset to inflict harm upon Mr Collins. I am satisfied that it is at least possible that Mr Maher commenced with an essentially defensive mindset. A headlock is consistent with a defensive mindset. While a level of adrenaline may have taken over, there is no evidence to suggest that Mr Maher’s state of mind changed to an aggressive one. The evidence does not warrant any finding that he struck any blows.
Even if Mr Maher had been entirely unaffected by alcohol, I do not consider that on this limited evidential footing I could infer beyond reasonable doubt an intention on his part to cause grievous bodily harm, let alone an intention to kill, in applying the headlock that he applied to Mr Collins. On the evidence, it is reasonably possible that the headlock was applied for only a relatively short period of time and with only a relatively light force. In the absence of something more, I do not consider that I can infer beyond reasonable doubt from this an intention to cause grievous bodily harm. The position may well have been otherwise if there was evidence to support a finding that Mr Collins had fallen unconscious or gone limp, and that Mr Maher nevertheless continued to apply the headlock for a significant period of time. However, the evidence does not support such a finding. While my findings on causation mean I have found that Mr Collins was unconscious by the time the headlock was released, the evidence does not enable me to exclude as a reasonable possibility that Mr Collins was still conscious and able to talk, and to offer some physical resistance (for example, by trying to push up), until only moments prior to him being rendered unconscious. Indeed, I consider it likely that this is what did occur.
The evidence as to Mr Maher’s state of intoxication only adds to the evidentiary weakness of the prosecution case on this issue.[21] As explained earlier, I cannot be precise as to Mr Maher’s level of intoxication, let alone impairment. However, I am satisfied that Mr Maher’s perception and judgement were impaired to at least some extent. This underscores the possibility that Mr Maher did not appreciate the potential for harm associated with the headlock that he applied, and hence did not intend that such harm occur. Put another way, Mr Maher’s intoxication underscores the requirement for the caution that I have exercised in considering whether it is appropriate to draw an inference beyond reasonable doubt that Mr Maher intended to cause Mr Collins grievous bodily harm.
[21] As to the potential relevance of intoxication to a defendant’s “specific” intent, see R v Childs (2007) 98 SASR 111 at [71]-[76]; R v Ford [2016] SASC 112 at [19]-[23].
For these reasons, I do not accept that the prosecution has established beyond reasonable doubt the third element of the offence of murder.
In light of this failure to make out the third element, it is not necessary for me to consider the fourth element of common law murder, namely that the act (the headlock) was performed without lawful justification or excuse.
The case against Mr Fleming
As explained, the case against Mr Fleming is that Mr Maher applied a headlock to Mr Collins pursuant to a common purpose on the part of the defendants to cause death or grievous bodily harm upon Mr Collins.
Given my conclusion that the prosecution has failed to prove beyond reasonable doubt that Mr Maher applied the headlock with an intention to cause grievous bodily harm, it follows that the case against Mr Fleming in relation to common law murder must also fail.
Further, and in any event, as the prosecutor frankly and appropriately conceded during closing submissions, the prosecution case in relation to the relevant common purpose is problematic.
Having rejected the prosecution case that the defendants acted pursuant to a common purpose to rob Mr Collins, I do not consider there is a proper basis for finding that the defendants were acting pursuant to some other common purpose. Although I have found that both Mr Maher (in applying a headlock) and Mr Fleming (in kicking Mr Collins to the head) did act violently towards Mr Collins, I do not consider that their conduct is a sufficient basis for inferring that they agreed to act together in a violent way, let alone in a manner intended to cause grievous bodily harm. In my view, it is at least reasonably possible that each was acting individually.
MANSLAUGHTER BY UNLAWFUL AND DANGEROUS ACT
Having rejected the prosecution cases of murder against each of the defendants, it is necessary to consider the alternative offence of manslaughter. I have earlier set out the elements of manslaughter by unlawful and dangerous act. It is again appropriate to consider the case against each defendant separately.
The case against Mr Maher
I find the first two elements established beyond reasonable doubt, namely that the headlock applied by Mr Maher caused the death of Mr Collins, and that this was a voluntary or deliberate act on the part of Mr Maher. However, the third element (that the headlock was unlawful) and fourth element (that the headlock was dangerous) are in dispute.
Taking these in reverse order, the fourth element requires proof beyond reasonable doubt that a reasonable person in the position of the accused would have realised that his or her actions would expose the deceased to an appreciable risk of serious injury or harm. The test is thus an objective one. It is assessed by reference to a reasonable hypothetical person, but in the position of the defendant (that is, in the circumstances of the defendant, and imbued with the qualities of age, experience and knowledge of the accused[22]). And it does not require that a reasonable person would have realised that death or even grievous bodily harm would result. It is enough that a reasonable person would have realised that the application of the headlock would expose Mr Collins to an appreciable risk of serious injury.[23]
[22] The Queen v Lavender (2005) 222 CLR 67, albeit in the context of criminal negligence.
[23] Wilson v The Queen (1991) 174 CLR 313 at 332-333, 335.
I have mentioned the uncertainty in the evidence as to the degree of force involved in Mr Maher’s headlock, and the duration of that force. While I have held that this uncertainty stands in the way of any conclusion beyond reasonable doubt that Mr Maher intended to cause Mr Collins grievous bodily harm, I do not consider that it prevents me concluding beyond reasonable doubt that the headlock was dangerous. The test for the latter is objective and involves an appreciable risk of serious injury or harm, rather than an intention to cause grievous bodily harm.
In my view, a reasonable person in the position of Mr Maher would understand that even a relatively low force and duration headlock might interfere with the ability of the person being held to breathe, and with the flow of blood to their head and brain. It follows in my view that a reasonable person in the position of Mr Maher would understand that anything more than a relatively momentary headlock would expose the person being held to an appreciable risk of serious injury.
In circumstances where I have found that Mr Maher applied a headlock that lasted for a couple of minutes, I am satisfied beyond reasonable doubt that the application of the headlock was dangerous.
In relation to the third element, while the application of a headlock would ordinarily constitute an unlawful assault, that is not so if it occurred in circumstances attracting a defence under s 15 of the CLCA. I have earlier set out the terms of that section. Mr Maher’s counsel contended that it was at least reasonably possible that in applying a headlock to Mr Collins, Mr Maher was acting in defence of Mr Fleming, this being a defensive purpose within the meaning of s 15 of the CLCA. This defence having been raised, the s 15 defence is taken to have been established unless the prosecution disproves or negatives the defence beyond reasonable doubt.[24]
[24] Section 15(5) of the CLCA.
Mr Maher’s counsel points to Mr Maher’s explanation for his conduct in his police interview. According to Mr Maher, he was walking behind Mr Fleming and Mr Collins when the altercation between the two of them commenced. He did not know why or precisely how it commenced; all he knew was that there was an argument, following which Mr Collins grabbed Mr Fleming and commenced to scuffle with him, with the two of them going to the ground and Mr Collins ending up on top of Mr Fleming. It was at this point that Mr Maher intervened, and did so by applying a headlock while pulling Mr Collins off Mr Fleming and then restraining him face down for a period.
Under s 15(1), the defence requires: (a) that Mr Maher genuinely believed that his conduct in applying the headlock was necessary and reasonable for a defensive purpose; and (b) that his conduct in applying a headlock was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist. Again, the issue is whether the prosecution has negatived beyond reasonable doubt either or both of these limbs of the defence.
As to the first limb of s 15(1), it is entirely subjective. It requires consideration of Mr Maher’s subjective state of mind as to the nature of the threat posed to Mr Fleming and the surrounding circumstances. It then requires consideration of whether Mr Maher subjectively believed his response to be reasonable and necessary in light of his assessment of the threat and surrounding circumstances. Given the subjective nature of the enquiry, it is necessary to take into account the impairment of his perception and judgement by reason of his intoxication.[25]
[25] R v Gillman (1994) 62 SASR 460 at 466; R v Clothier [2002] SASC 9 at [73], [96].
It is not always necessary that a defendant relying upon a defence under s 15(1) make an express assertion of his defensive purpose. It is sometimes possible to infer such a purpose (or at least the reasonable possibility of such a purpose) from the evidence as a whole. In this case, it is apparent from Mr Maher’s description of the circumstances in his police interview that he purported to have acted for the purpose of defending Mr Fleming (and perhaps later himself[26]) from Mr Collins. It is also apparent from his references to his exchange of words with Mr Collins while holding him in a headlock that he was asserting a belief that it was reasonable and necessary to continue holding Mr Collins in a headlock until he was satisfied that Mr Collins had calmed down and would not resume his aggressive actions. The issue for me is whether I accept that it is reasonably possible that Mr Maher did in fact genuinely believe that his actions were necessary and reasonable for a defensive purpose.
[26] i.e. once he had removed Mr Collins from on top of Mr Fleming.
In terms of the nature of the threat posed by Mr Collins, it is relevant that he was 49 years of age, and a person of moderate size and build, being about 176 centimetres in height and about 79 kilograms in weight. Mr Fleming was slightly shorter and lighter, but was significantly younger in age, being 24 years of age. Mr Maher himself was shorter and lighter again, and 23 years of age. Further, and more importantly, having accepted that the altercation unfolded generally as Mr Maher described, he not only saw Mr Collins act in a relatively sudden and aggressive manner towards Mr Fleming, but he also saw them go to ground with Mr Collins on top of Mr Fleming.
In assessing the threat posed by Mr Collins, and in deciding how to respond, Mr Maher did not have the luxury of time. He was forced to make a quick assessment and decision. He knew nothing of Mr Collins other than his physical appearance and size, and his relatively sudden display of aggression that he had just witnessed. It is also relevant in this context that I have found that Mr Maher’s perception and decision-making skills would have been impaired to some extent by the alcohol he had consumed.
Against this background, I am satisfied that it is at least reasonably possible that Mr Maher believed that Mr Collins represented a threat to Mr Fleming’s safety, and that he decided to intervene for the defensive purpose of protecting Mr Fleming from Mr Collins. The existence of this defensive purpose is supported by the nature of Mr Maher’s intervention – namely, the application of a headlock. The evidence does not support any finding that Mr Maher acted in an overtly aggressive way, for example, by punching or kicking Mr Collins.
Having accepted that it is at least possible that Mr Maher acted for a defensive purpose, I also accept that it is possible that he considered that his conduct in applying a headlock and pulling Mr Collins off Mr Fleming was reasonable and necessary for that purpose. The issue that then arises is whether it is also possible that Mr Maher believed that it was reasonable and necessary for his defensive purpose to maintain the headlock with the force, and for the duration, that he did. In my view, it is possible that Mr Maher believed it was reasonable and necessary to not only remove Mr Collins from on top of Mr Fleming, but also subdue him for a period of time so as to ensure that he had calmed down, and was unlikely to continue his aggression towards Mr Fleming (or him (Mr Maher)). Further, given the lack of evidence as to the extent and duration of the force applied by Mr Maher through his headlock, and the absence of any basis for finding that he continued to hold the headlock for any significant period of time after Mr Collins had fallen unconscious, it is my view that the prosecution has not established beyond reasonable doubt that Mr Maher went beyond what he genuinely believed to be reasonable and necessary for his defensive purpose.
It follows that the prosecution has failed to negative beyond reasonable doubt the first limb of the s 15(1) defence.
Turning to the second limb of the s 15(1) defence, the issue is whether Mr Maher’s conduct in applying the headlock that he applied was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed to exist. The requirement that the defendant’s conduct be “reasonably proportionate” imposes an objective standard. However, it is again to be assessed by reference to the circumstances as Mr Maher genuinely believed them to be. In other words, the second limb requires an objective assessment of the proportionality of the force used, but against a background or foundation of the defendant’s subjective assessment of the threat and surrounding circumstances. It follows that, to the extent that Mr Maher’s intoxication affected his perception and assessment of the threat posed by Mr Collins, this is a relevant consideration even under the second limb.
I have already summarised the matters relevant to Mr Maher’s perception and assessment of the threat posed by Mr Collins. I am not satisfied that the prosecution has negatived the possibility that Mr Maher’s intervention and application of a headlock was a reasonably proportionate response to that threat. Further, given the uncertainty that I have described in relation to the force and duration of the headlock, I am also not satisfied that the prosecution has negatived the possibility that it was reasonably proportionate to maintain the headlock with the force, and for the duration, that Mr Maher did.
For these reasons, I do not consider that the prosecution has negatived either limb of the s 15(1) defence, meaning that the third element of unlawfulness has not been established.
The case against Mr Fleming
For related reasons, the prosecution case on the alternative offence of manslaughter by unlawful and dangerous act has also not been established against Mr Fleming. Having concluded that the prosecution has not established that the headlock was unlawful, it follows that the case against Mr Fleming has not been made out.
Further and in any event, even if Mr Maher were guilty of manslaughter, for essentially the same reasons I concluded that the prosecution has not proved beyond reasonable doubt that Mr Fleming acted with a common purpose of causing grievous bodily harm, I also conclude that the prosecution has not proved beyond reasonable doubt that he acted with a common purpose of acting in an unlawful and dangerous manner. I consider it at least reasonably possible that the defendants were at all relevant times acting individually, rather than pursuant to any common purpose.
VERDICTS
I find the defendant Mr Fleming not guilty of statutory murder under s 12A of the CLCA, not guilty of common law murder under s 11 of the CLCA, and not guilty of manslaughter.
I find the defendant Mr Maher not guilty of statutory murder under s 12A of the CLCA, not guilty of common law murder under s 11 of the CLCA, and not guilty of manslaughter.
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