R v Ford - [2016] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FORD
[2016] SASC 112
Judgment of The Honourable Justice Blue
1 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
Trial by Judge alone for murder.
On the night of 11-12 October 2014, an incident occurred between the accused and the deceased. On the prosecution case, while the deceased was lying on the floor the accused stomped on and kicked him and jumped up and down on him, including in the vicinity of the deceased’s head and neck. On the defence case, the deceased attempted to stab the accused with scissors and the accused punched him once in the jaw and kicked him once in the head.
The deceased was found dead the following morning. His blood alcohol reading was 0.34 per cent. At autopsy he was found to have injuries to his head and neck, including a fractured jaw and tooth, fractured hyoid bone, various lacerations, abrasions and contusions, and injury to the brain. A pathologist, Dr Charlwood, expressed the opinion that the cause of death was a combination of the injuries she observed and alcohol intoxication but that alcohol intoxication alone did not cause the death of the deceased.
The principal prosecution witness Mr Corbett who observed the incident had consumed a large quantity of alcohol. The reliability of his evidence was questioned in light of that consumption of alcohol.
The accused had been drinking alcohol and had also been smoking cannabis. Expert evidence was given concerning the effects of alcohol upon perception and state of mind.
Held:
1.       Caution needs to be exercised in relying up Mr Corbett’s evidence in light of his intoxication (at [18], [131]).
2.       The prosecution has proved beyond reasonable doubt that the accused attacked the deceased while he was lying on the ground, kicking him, stomping on him, and jumping up and down several times on him (at [160]).
3.       The prosecution has proved beyond reasonable doubt that the accused’s acts were a substantial cause of the death of the deceased (at [168]).
4.       The prosecution has proved beyond reasonable doubt that the acts of the accused were voluntary and deliberate (at [169]).
5.       Taking into account the potential effect of alcohol and drugs on the state of mind of the accused, the prosecution has not proved beyond reasonable doubt that the accused intended to kill or cause grievous bodily harm to the deceased (at [183]-[187]).
6.       The prosecution has proved beyond reasonable doubt that the acts of the accused were unlawful and dangerous (at [189]-[193]).
7.        Accused found not guilty of murder but guilty of manslaughter (at [194]).
Criminal Law Consolidation Act 1935 (SA) s 11, s 267A, s 268; Evidence Act 1929 (SA) s 34P, s 34R, referred to.
Edwards v R (1993) 178 CLR 193; Plomp v R (1963) 110 CLR 234; R v B, MA (2007) 99 SASR 384; R v Chamberlain (No 2) (1984) 153 CLR 521; R v Childs (2007) 98 SASR 111; R v Gardiner (2013) 117 SASR 143; R v Shinner (1993) 173 LSJS 384; R v Wingfield (1994) 176 LSJS 14, discussed.
Bedi v R (1993) 61 SASR 269; Campbell v R (1991) 172 CLR 378; Knight v R (1992) 175 CLR 495; Martin v Osborne (1936) 55 CLR 367; Peacock v R (1911) 13 CLR 619; R v Davies and Hyland (1995) 183 LSJS 186; R v Crabbe (1985) 156 CLR 464; R v Hallett [1969] SASR 141; R v Hillier (2007) 228 CLR 618; R v Micallef (2002) 136 A Crim R 127; Royall v R (1991) 172 CLR 378; Ryan v R (1967) 121 CLR 205; Shepherd v R (1990) 170 CLR 573; Wilson v R (1992) 174 CLR 313; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, considered.

R v FORD
[2016] SASC 112
Criminal: Trial by Judge Alone
BLUE J:

This is a trial by Judge alone. The accused, Luke Robert John Ford, is charged with the murder of Robert Mark Fitzsimmons on 11 October 2014 at Adelaide.[1] Mr Fitzsimmons died in room 6, 158 Carrington Street, Adelaide (room 6) during the night of 11-12 October 2014.
Directions of law
[1] Criminal Law Consolidation Act 1935 (SA) s 11.
Presumption of innocence
The accused is entitled to the presumption of innocence. He can only be found guilty if I am satisfied that the prosecution has proved beyond reasonable doubt each and every element of the offence.
The accused does not have to prove anything. He is not required to put forward a positive defence nor to give an explanation nor to prove his defence. It is for the prosecution to disprove it.
The accused elected not to give evidence. He was not bound to give evidence. He had the right to decline to give evidence. I must not draw any inference adverse to him or the case he puts forward as a result of the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate about them.
Elements of murder
There are four elements of the offence of murder:[2]
1an act or acts of the accused caused the death of the deceased;[3]
2the act or acts were voluntary (ie deliberate);
3the act or acts were performed with intent to kill or cause grievous bodily harm to the deceased;[4]
4the act or acts were performed without lawful justification or excuse.
[2]    Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 at 661-662 per Wilson, Dawson and Toohey JJ.
[3]    In special circumstances it may suffice that an omission or omissions of the accused caused the death of the deceased: The Queen v Hallett [1969] SASR 141 at 149 per Bray CJ, Bright and Mitchell JJ. However, it is no part of the Crown case that this applies in the present case, and it can be ignored.
[4]    In the alternative, the mental element is established if the act or acts were performed with knowledge that it was probable that death or grievous bodily harm would result: R v Crabbe (1985) 156 CLR 464 at 468-469 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ. However, it is no part of the Crown case that this alternative applies in the present case, and it can be ignored.
The first and third elements are contested. The second and fourth elements are not contested. I am required to be satisfied beyond reasonable doubt that the prosecution has proved each element before convicting the accused of murder.
In relation to the first element, the question whether an act or acts of an accused caused the death of the deceased is to be determined as a matter of common sense, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.[5] There may be two or more independent acts or events that cause death: the act or acts of an accused need not be the sole or immediate cause.[6] The question is whether the act or acts of the accused were a substantial or significant cause of the death of the deceased.[7]
[5]    Quoted from Campbell v The Queen [1981] WAR 286 at 290 per Burt CJ, approved by the High Court in Royall v The Queen (1991) 172 CLR 378 at 387 per Mason CJ, 411-412 per Deane and Dawson JJ, 423 per Toohey and Gaudron JJ and 441 per McHugh J.
[6]    Royall v The Queen (1991) 172 CLR 378 at 398 per Brennan J, 411 per Deane and Dawson JJ, 423 per Toohey and Gaudron JJ and 441 per McHugh J.
[7]    Royall v The Queen (1991) 172 CLR 378 at 398 per Brennan J (“contribute significantly”), 411 per Deane and Dawson JJ (“substantial or significant cause”), 423 per Toohey and Gaudron JJ (“substantially contributed”) and 441 per McHugh J (“sufficiently significant”).
In relation to the third element, grievous bodily harm means really serious bodily harm. The requisite intent must be concurrent with the performance of the act or acts that caused the death of the deceased.[8]
[8] Ryan v The Queen (1967) 121 CLR 205 at 218 per Barwick CJ, Royall v The Queen (1991) 172 CLR 378 at 393 per Mason CJ, 401 per Brennan J, 414 per Deane and Dawson JJ, 426 per Toohey and Gaudron JJ and 458 per McHugh J.
Elements of manslaughter
If an accused is acquitted of murder, it is necessary to consider whether he or she should be found guilty of the alternative of manslaughter by unlawful and dangerous act.
There are four elements of the offence of manslaughter by unlawful and dangerous act:[9]
1an act or acts of the accused caused the death of the deceased;
2the act or acts were voluntary (ie deliberate);
3the act or acts were unlawful;
4the act or acts were dangerous, ie a reasonable person in the position of the accused would have realised that his or her actions would expose the deceased to appreciable risk of serious harm.
[9] Wilson v The Queen (1992) 174 CLR 313 at 332-334 per Mason CJ, Toohey, Gaudron and McHugh JJ.
The first element is contested. It gives rise to the identical issue as in respect of the first element of murder. The other elements are not contested. I am required to be satisfied beyond reasonable doubt that the prosecution has proved each element before convicting the accused of manslaughter.
Section 268 Criminal Law Consolidation Act
Subsections 268(2), (3) and (6) of the Criminal Law Consolidation Act 1935 (SA) relevantly provide:
268—Mental element of offence to be presumed in certain cases
…
(2)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)     However, subsection (2) does not extend to—
(a)     a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or
(b)     except where the alleged offence is an offence against section 48 (rape)—a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
…
(6)A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.
Section 267A creates the following relevant definitions:
267A—Definitions
(1)     In this Part—
alleged offence means the offence with which the defendant is charged but also extends to any other offence of which the defendant could be found guilty on the charge;
consciousness includes—
(a)     volition;
(b)     intention;
(c)     knowledge;
(d)     any other mental state or function relevant to criminal liability;
drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;
objective element of an offence means an element of the offence that is not a subjective element;
subjective element of an offence means a mental element of the offence and includes voluntariness;
It is common ground that the effect of subsection 268(2) is that self-induced intoxication is not to preclude a finding of the voluntariness element of murder or manslaughter if at common law it would otherwise do so. It is common ground that the effect of the combination of subsections 268(2) and (3) is that self-induced intoxication is to be taken into account in assessing whether the intent to kill or cause grievous bodily harm element of murder is satisfied. These matters of common ground reflect the interpretation of section 268 adopted by the Full Court in R v Childs[10] and R v B, MA.[11]
[10] [2007] SASC 195, (2007) 98 SASR 111 at [71]-[73] and [82] per Doyle CJ and Vanstone J (with whom Kelly J agreed).
[11] [2007] SASC 384, (2007) 99 SASR 384 at [27] per Gray and Sulan JJ and [72] per David J.
While subsection 268(2) modifies the common law in respect of the element of voluntariness, I have reached my conclusions regarding this element without recourse to that subsection.
Intoxication
It is common ground that, at the time of the incident each of the accused, Mr Fitzsimmons and Mr Corbett had been drinking alcohol and the accused had been smoking cannabis.
It is common experience that taking alcohol or other drugs can affect the mental state of the person taking them. It can affect their perceptions, beliefs and intentions at the time and their memory afterwards.
In assessing Mr Corbett’s evidence, I must take into account the effects or potential effects of alcohol on his perception and recollection of events, just as I must take into account all other conditions affecting his perception and recollection.[12] Expert evidence was given by Professor White about the effects of intoxication upon memory. It is necessary to consider all of the evidence bearing on Mr Corbett’s intoxication and state of mind when considering his evidence.
[12] See, for example, Bedi v The Queen (1993) 61 SASR 269 at 273 per Duggan J (with whom Bollen and Mullighan JJ agreed); The Queen v Davies and Hyland (1995) 183 LSJS 186 at 190 per Prior J (with whom Doyle CJ agreed).
In determining whether it has been proved beyond reasonable doubt that the accused acted at the relevant time with intent to cause grievous bodily harm to Mr Fitzsimmons, I must take into account the effects or potential effects of alcohol and other drugs on his perception and state of mind. While it might be safe in a given set of circumstances to draw an inference beyond reasonable doubt that a person unaffected by alcohol or other drugs formed an intention to cause grievous bodily harm, it might not be safe to draw such an inference if the person is substantially affected by alcohol or other drugs. This requires me to approach the question of drawing such an inference with additional caution based on the common experience referred to above.
The need for such caution has been emphasised in several authorities. In R v Shinner,[13] King CJ (with whom Debelle and Millhouse JJ agreed) said:
The deceased's death undoubtedly arose out of a drunken episode of sudden unpremeditated violence. The three participants were drunk. Whether the cause of the quarrel was contribution to the cost of another cask of wine or the deceased's behaviour to Rinaldi, the quarrel was sudden and the cause was not of a kind which would be likely to cause a person to form an intention to inflict death or grievous bodily harm. Clearly liquor played an important part in what occurred. In those circumstances a clear direction was needed as to the distinction between the basic intent to punch or kick and the specific intent to cause death or grievous bodily harm, and as to the bearing of intoxication upon the inferences as to intention which could be drawn from the appellant's conduct. The defence was that although the appellant intended to punish the deceased he did not intend death or grievous bodily harm. It was a critical aspect of the defence case that the intoxication of the appellant rendered it unsafe to draw the inference as to his state of mind which might otherwise be drawn from his actions. It was important that that aspect be clearly explained to the jury…
There was therefore an issue for the jury as to whether the appellant intended to make contact with the head. That inference might readily be drawn from the appellant's actions if he were sober. The inference might not as readily be drawn in the light of his intoxicated state as it would be, if he were sober. If he did intentionally and repeatedly kick the deceased's head, the inference that he intended at least grievous bodily harm might readily be drawn if he were sober. It might be less readily drawn by reason of his intoxication.[14]
[13] (1993) 173 LSJS 384.
[14] At 385, 386.
In R v Wingfield,[15] King CJ (with whom Bollen and Mullighan JJ agreed) said:
The intention of the appellant was a crucial issue. The injuries which he caused were grievous. If caused by a sober rational man, the inference that they were caused with the intention of doing grievous bodily harm would be strong. The appellant, however, had no rational cause to do grievous bodily harm to the child and the appellant was drunk. These circumstances demanded a careful direction to the jury as to nature of the intention which was required for a verdict of murder and as to the bearing of intoxication upon the issue of intention…
The appellant's intoxication was an important element in the case. The nature of the injuries were such that, if the perpetrator were sober and otherwise in his right mind, the inference that grievous bodily harm was intended would be almost inevitable. This appellant, however, was not sober. He was undoubtedly drunk. …
.. the jury … did not have the advantage of a direction which directly brought to bear the directions as to intoxication upon the vital issue which they had to decide. Deliberations of the jury would have been greatly assisted, in my opinion, by being reminded directly that inferences to intention which might be readily drawn from the nature of the injuries inflicted if the perpetrator is sober, might not as readily be inferred if the perpetrator is drunk, and that the critical issue for their consideration was whether, by reason of his drunkenness, the appellant might have inflicted these grievous injuries notwithstanding the absence of an intention to inflict that degree of harm.[16]
[15] (1994) 176 LSJS 14.
[16] At 15, 17, 18.
In R v Gardiner,[17] Peek J (with whom Nicholson J agreed) said:
There are obviously various dangers in assuming that a person on any particular occasion of performing an action in fact intended to thereby bring about what might be thought to be, on sober consideration, the natural or likely consequences of that act. One such danger is that persons acting under the influence of stress or heightened emotion may not in fact intend consequences which, on calm ex post facto analysis, appear obvious…
The correct role of intoxication is in some ways similar to the above example of stress or heightened emotion: its effect may have an influence on the mental processes of an accused on the particular occasion such that one should pause before drawing the inference of a specific intent that one might otherwise draw from the proven facts.[18]
[17] [2013] SASCFC 53, (2013) 117 SASR 143.
[18] At [180], [182].
Expert evidence was given by Professor White about the effects of intoxication upon memory and state of mind. It is necessary to consider all of the evidence bearing on the accused’s intoxication and state of mind when considering whether I am satisfied beyond reasonable doubt that he intended to cause grievous bodily harm at the relevant time.
Expert evidence
Expert opinion evidence was given by Brevet Sergeant Peter McKenzie, Ms Oliva Handt, Dr Cheryl Charlwood and Professor Jason White. It is a matter for me to judge 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.
Circumstantial case

The prosecution case that the accused acted with the intention of causing grievous bodily harm to Mr Fitzsimmons is necessarily a circumstantial case.
First, I must look at the facts upon which the prosecution relies as circumstantial evidence in the case, and decide which facts I accept as established by the evidence. Then I must consider what inference or inferences I am prepared to draw from those facts. 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.
I cannot find this mental element of murder proved beyond reasonable doubt unless the circumstances exclude any reasonable explanation consistent with innocence, ie other than that the accused acted with the requisite intent. I must be satisfied not only that his acting with that intent is a rational inference but that it is the only rational inference that the circumstances I find proved enable me to draw.
Indispensable intermediate steps in the reasoning process must be established beyond reasonable doubt.
In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[19] I ought not stretch credulity or engage in tortuous reasoning to explain away each and every individual circumstance as being consistent with innocence.[20]
[19] Shepherd v The Queen (1990) 170 CLR 573.
[20] R v Micallef [2002] NSWCCA 480 (2002) 136 A Crim R 127 at [42] per Dunford J.
In The Queen v Chamberlain (No 2),[21] Gibbs CJ and Mason J said:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”. [22]
[21] (1984) 153 CLR 521.
[22] At 535. (Citations omitted)
In Plomp v The Queen,[23] Dixon CJ (with whom Kitto, Taylor and Windeyer JJ agreed) said:
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.[24]
[23] (1963) 110 CLR 234.
[24] At 242.
Lies
The Director invites me to find that, when interviewed by the police the following day, the accused told lies concerning the events that occurred in room 6 and that the telling of the lies amounts to an implied admission of his guilt and hence is evidence probative of his guilt of murder.
Evidence that the accused allegedly told a lie about a material issue can only be used as probative of guilt of murder or of an element of murder if:
1I am satisfied that the accused made a false statement about a material issue;
2I am satisfied that the false statement was a lie, ie a deliberate untruth;
3my satisfaction in this regard is independent of a finding on the element of murder in respect of which the prosecution seek to use the alleged lie as probative (ie the reasoning cannot be circular);
4I am satisfied that the accused told the lie out of a consciousness of guilt, ie because he knew that the truth of the matter about which he lied would implicate him in the offence of murder;
5by way of corollary of 4, I am satisfied that I can exclude the possibility that the lie was told for some other reason than a consciousness of guilt of murder, such as out of panic, to escape an unjust accusation or out of consciousness of guilt of some other offence than murder.
In Edwards v The Queen,[25] Deane, Dawson and Gaudron JJ said:
There is a difference between the mere rejection of a person's account of events and a finding that a person has lied. A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. ...
Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. … When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" or as corroborative evidence.
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. …
…Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.
…
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence...
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. … And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.[26]
[25] (1993) 178 CLR 193.
[26] At 208-209, 210-211.
Discreditable conduct
Evidence was adduced by the Director without objection by the accused that arguably tended to suggest that the accused engaged in discreditable conduct within the meaning of section 34P of the Evidence Act 1929 (SA) (the Evidence Act).
That evidence comprised:
1evidence by Mr Corbett that in the course of the incident he was punched by the accused, and photographs and other witnesses’ observations relating to an injury in the vicinity of Mr Corbett’s eye;
2evidence by three residents of an address in Gladstone Street, Adelaide (the Gladstone Street address), namely Lee Taylor, Peter Isaacson and Uwe Schanz, about an incident at that address between the accused and a fourth Gladstone Street resident, Mark, as to which Mr Taylor said that the accused was yelling at and attempted to kick Mark and Messrs Isaacson and Schanz said that the accused was yelling at Mark and invited him to step out in the laneway;
3evidence that the accused had active ingredients of cannabis in his blood on 12 October 2014 and evidence that he said when interviewed on 12 October 2014 that he had smoked cannabis the previous day.
As the accused did not object to the leading of this evidence, I was not called on to rule on its admissibility pursuant to section 34P of the Evidence Act.
I am required by section 34R of the Evidence Act to identify and explain the purpose for which the evidence may, and may not, be used. I address this below.
View
On the second day of trial, I conducted a view of 154-160 Carrington Street, Adelaide. What I saw and heard during the view is not evidence, but can be used to assist me to understand the evidence given in court.
Background
Carrington Cottages comprises four Victorian townhouses situated at 154-160 Carrington Street, Adelaide. Carrington Cottages is situated on the north-western corner of Carrington and Pulteney Streets. A BP On The Run service station (the BP service station) is situated within the same block on the corner of Angas and Pulteney Streets.
Carrington Cottages is operated by Housing SA to provide accommodation for single men. There are 12 bedrooms on the ground floor, comprising three bedrooms within each townhouse. They have shared kitchens and bathrooms. There are areas at the rear where residents can smoke and socialise and where they also on occasion drink (the courtyard).
There are 14 bedrooms on the first floor, comprising three bedrooms in each of the inner townhouses (156 and 158 Carrington Street) and four bedrooms in each of the outer townhouses (154 and 160 Carrington Street). Each townhouse has one shared bathroom and one shared kitchen. There is a balcony at the front overlooking Carrington Street, to which each of the six bedrooms fronting onto Carrington Street have access via French doors.
Room 6 (part of 158 Carrington Street) has a frontage onto Carrington Street. It has two sets of French doors, although in practice Mr Corbett used the eastern set of French doors (the French doors) for access to the balcony. Immediately to the east of room 6 is a room (room 5) that in October 2014 was occupied by Mark Thalbourne (part of 160 Carrington Street). Immediately to the east of room 5 is a room (room 6 east) that in October 2014 was occupied by Terrence Twaits (part of 160 Carrington Street).
Immediately to the west of room 6 is a room (room 7) (part of 156 Carrington Street). Immediately to the north of room 7 is a room (room 6 north) that in October 2014 was occupied by Branko Kostovic. Further to the north (beyond the shared kitchen and bathroom) is a room (room 5 north) that in October 2014 was occupied by Edward Rankine. Immediately below room 6 north is a room (room 2) that before October 2014 had been occupied by “German”. Room 2, room 7, room 6 north and room 5 north are all part of 156 Carrington Street.
Further to the west of room 7 is a room (room 6 west) (part of 154 Carrington Street) that in October 2014 was occupied by Steven Wright.
In late 2013/early 2014, Peter Corbett moved into room 6. This was arranged for him by the Sisters of Mercy in Hutt Street. The furniture inside the room included a single bed, a lounge chair covered by a patchwork blanket (the patchwork chair), a small rectangular formica-topped table, a white swivel chair (the swivel chair) on the other side of the table from the patchwork chair and a small white cupboard. The furniture outside the room on the balcony comprised a small oval wooden table, a vinyl-covered chair and a cloth-covered chair. Mr Corbett is now 56 years old. He described himself as “more or less” an alcoholic. If he had sufficient money to buy wine or beer, he would usually start drinking in the morning soon after getting up to settle his nerves and stop the shakes.
A few months before October 2014, Mr Corbett met up with Mr Fitzsimmons at the Sisters of Mercy. Mr Fitzsimmons was 52 years old. They had first met about 10 years earlier at a detox unit in Darwin. Over the few months leading up to October 2014, Mr Fitzsimmons was either living at Angas Lodge or living on the streets. Over that period, Mr Corbett and Mr Fitzsimmons often met up to talk and drink. On a few occasions, Mr Fitzsimmons spent the night sleeping on the floor of Mr Corbett’s bedroom. Mr Corbett described Mr Fitzsimmons as more or less an alcoholic like himself.
Approximately three months before October 2014, the accused commenced living at an address in Bellinger Road, Elizabeth East (the Bellinger Road address).
On Thursday 9 October 2014, the accused moved into room 2 (156 Carrington Street). He still had some belongings at the Bellinger Road address.
On Friday 10 October 2014, Mr Corbett bought a 5 litre cask of Fruity Lexia (or moselle). He had a few drinks from the cask on the Friday. He met the accused downstairs in the smoking area at the back of the Carrington Cottages. They introduced themselves and had a discussion and a drink.
11 October 2014
On Saturday 11 October 2014, Mr Corbett awoke and drank a couple of cups of the Fruity Lexia. Mr Fitzsimmons came around and they spent the day talking and drinking the Fruity Lexia.
The accused visited the Gladstone Street address on that day, talking and drinking with the residents. An altercation occurred between the accused and one of the Gladstone Street residents, Mark.
While Mr Corbett and Mr Fitzsimmons were downstairs in the courtyard of Carrington Cottages, they met the accused. They went up to Mr Corbett’s room and went out onto the balcony. Mr Corbett and Mr Fitzsimmons were drinking the Fruity Lexia. The accused was also drinking alcohol. Mr Corbett was not sure whether it was also the Fruity Lexia or it was beer. I find that it was beer. They were also smoking cigarettes.
Late that evening, an incident occurred between the accused and Mr Fitzsimmons. On the prosecution case, the accused stomped on, kicked and repeatedly jumped on Mr Fitzsimmons. On the defence case, Mr Fitzsimmons attacked the accused with a pair of scissors and the accused punched him in the head once and kicked him in the head once. At the end of the incident, Mr Fitzsimmons was lying on the floor. The accused left the room. Mr Corbett fell into bed and immediately fell asleep.
12 October 2014
In the early morning of Sunday 12 October 2014 at 12.37 am, the accused entered the BP service station shop. The movements of the accused between 12.37 am and 1.03 am are shown on surveillance video recordings from the service station that were tendered in evidence. The accused walked up and down the aisles looking for an item, found an item, put it in his backpack, and walked to the front of the shop. He had a discussion with staff and other customers in the shop. He walked outside and had further discussions with shop staff.
At approximately 12.50 am, police officers arrived, including Senior Constable William Humphris, Constable Kristen Georgiou and Sergeant Kieren Baggoley. They spoke to the accused for several minutes. Initially the accused was agitated, argumentative and angry, yelling intermittently at staff members at the doorway of the shop. After a while, he calmed down. They had a discussion with him about what had occurred in the shop. He was coherent, not slurring and not unsteady on his feet. Senior Constable Humphris observed that he had markings on his knuckles which Senior Constable Humphris thought were grazes.
At 1.03 am, the police directed the accused to leave the service station. He walked away southwards (toward Carrington Cottages). At the service station, the accused was wearing a black t-shirt on the front of which was emblazoned the words “Jet Pilot” and a distinctive logo (the Jet Pilot T-shirt).
At some point after 1.03 am, the accused returned to Mr Corbett’s room and left his Jet Pilot T-shirt rolled up on the white swivel chair. At some point, either before he left the room following the incident or on his return when he left his T-shirt, the accused rolled Mr Fitzsimmons onto his side and placed a towel under his head.
At approximately 3 am, Mr Kostovic, who was asleep in his room, being room 6 north, was awoken by a knock on the door. He opened the door and saw “the new guy” who had moved into Carrington Cottages a couple of days earlier. His description of the man matches that of the accused. I find, and it is not contentious, that the man was the accused. The accused told Mr Kostovic that he was looking for “Pete” or a name that sounded like “Pete”. Mr Kostovic told him that there was no one in his room. They both went downstairs to the courtyard for a smoke.
In the courtyard, the accused told Mr Kostovic that he had locked himself out of his room and did not have the key to get back in. The accused left the courtyard, saying that he wanted to go to his room. Mr Kostovic continued smoking. He then heard a banging noise. The accused returned and said good night and that he had got into his room.
Later that morning, the police found that the bottom right-hand panel of the door to room 2 had been kicked in and a sheet had been draped on the back of the door across the opening. I find, and it is not contentious, that the accused kicked in the door panel to gain access to his room because he had locked himself out and did not have the key to get back in.

On the morning of Sunday 12 October 2014, Mr Corbett awoke. Mr Fitzsimmons was still lying in the same position as when Mr Corbett last saw him the previous night. Mr Corbett went outside onto the balcony for a smoke and drank one or two cups of Fruity Lexia. He told Mr Fitzsimmons to wake up but received no response. He saw that Mr Fitzsimmons was lying face down in a pool of blood. He felt that Mr Fitzsimmons was cold and saw that he did not appear to be breathing.
Mr Corbett saw Steven Wright, who lived in room 6 west, at the other end of the balcony. Mr Corbett beckoned Mr Wright over and, when he saw Mr Fitzsimmons, Mr Wright telephoned an ambulance. The telephone call was made at 8.17 am. Mr Wright noticed that Mr Corbett’s left eye was red and swollen and he had scratches and blood on the left side of his face and blood on his jeans.
At 8.22 am, a paramedic, Justin Cowan, arrived and concluded that Mr Fitzsimmons was dead. He was followed by another paramedic, Maryanne Elsby. Other paramedics, Timothy Sara and Harrison Barolo, treated an injury to Mr Corbett’s left eye, being a 3 cm long laceration to the left eyebrow/eyelid area. Mr Barolo described the injury as having clotted, that it was scabbing and that it did not appear recent. Mr Corbett was conveyed by paramedics to the Royal Adelaide Hospital.
At 8.47 am, the accused left 156 Carrington Street on foot. He was seen by a police officer as he left.
At 9.20 am, Mr Corbett provided an alcotest at the Royal Adelaide Hospital, the reading of which was 0.192 per cent.
During the morning, Dr Cheryl Charlwood, a pathologist, attended at room 6 and viewed Mr Fitzsimmons’ body and the blood on the floor in the vicinity of his head.
At about 12.50 pm, the accused arrived at the Bellinger Road address. At about 3.38 pm Detective Senior Constable Melanie Burke attended in company with other officers. She arrested the accused for murder and cautioned him.
At about 4.43 pm, Detective Burke and Detective Brevet Sergeant Amanda Bridge conducted a formal interview of the accused at the Elizabeth police station. The interview was recorded by audiovisual camera and the recordings were tendered. The accused gave an account of the incident which I address in detail below.
At about 9.00 pm, a blood sample was taken from the accused. It did not contain any alcohol. It contained approximately 0.2 milligrams of diazepam and 0.1 milligrams of nordiazepam per litre. It contained 3 micrograms of D⁹tetrahydrocannabinol (THC) and 74 micrograms of 11-nor-9-carboxy D⁹tetrahydrocannabinol (carboxy-THC).
At about 10.10 pm, a series of photographs were taken of the accused at the Elizabeth police station.
13 October 2014
On 13 October 2014 at about 9.30am, Doctor Charlwood commenced an autopsy of Mr Fitzsimmons. Samples were taken of his blood, vitreous humour and urine. They were subsequently tested for alcohol and readings of 0.34 per cent for blood, 0.41 per cent for vitreous humour and 0.45 per cent for urine were obtained. Diazepam and nordiazepam were detected in sub-therapeutic concentrations.
The prosecution and defence cases
The prosecution case is that, while Mr Fitzsimmons was lying on the floor, the accused stomped on and kicked him; jumped up and down several times on him; sat on the swivel chair; and then resumed jumping up and down on him. This occurred inside room 6. The accused’s actions caused multiple injuries to Mr Fitzsimmons, including a fractured jaw, fractured tooth, fractured hyoid bone, various lacerations, abrasions and contusions to the head and neck, and injury to the brain. After going to the BP service station, the accused returned to room 6 and left his Jet Pilot T-shirt on the chair. On that occasion, or alternatively before he left room 6 after the incident with Mr Fitzsimmons, the accused placed a towel beneath Mr Fitzsimmons’ head and rolled him onto his side in the “recovery position”. While alcohol was a contributing factor, the injuries inflicted on Mr Fitzsimmons by the accused were a substantial cause of Mr Fitzsimmons’ death. The accused inflicted the injuries with the intention of causing grievous bodily harm. In the alternative, the accused is guilty of manslaughter by unlawful and dangerous act.
The defence case is that an argument occurred between Mr Fitzsimmons and the accused on the balcony. Mr Fitzsimmons tried to stab the accused with a pair of scissors three times, making contact with the side of his abdomen. The accused punched Mr Fitzsimmons in the jaw and he fell to the ground. Mr Fitzsimmons picked up the scissors again and, as he was getting up, the accused kicked him in the head. The accused put Mr Fitzsimmons on his side with his head on a towel before he left. The accused’s actions were not a substantial cause of Mr Fitzsimmons’ death or at least this has not been proved beyond reasonable doubt. The accused did not intend to cause grievous bodily harm to Mr Fitzsimmons or at least this has not been proved beyond reasonable doubt.
The evidence
Evidence was given by Messrs Corbett, Thalbourne, Twaits, Rankine and Kostovic principally about events at Carrington Cottages on 11-12 October 2014. A statement by Mr Wright was read on the basis it represented his evidence. Senior Constable Brett Kingshott gave evidence about a statement he took from Mr Thalbourne on the morning of 12 October 2014.
Statements by Messrs Taylor, Isaacson and Schanz were read on the basis that they represented their evidence. Their evidence related to a visit by the accused to the Gladstone Street address on 11 October 2014 and dealings they had with him earlier in that week.
Senior Constable Humphris and Constable Georgiou gave evidence of their dealings with the accused at the BP service station in the first hour of 12 October 2014. Surveillance video recordings were tendered. A statement by Sergeant Kieren Baggoley was read on the basis that it represented his evidence relating to his dealings with the accused at the BP service station.
Statements by Maryanne Elsby, a paramedic, and Constable Emma-Jane Pagett were read on the basis that they represented their evidence. They related to their attendances at room 6 on the morning of 12 October 2014.
Detective Burke gave evidence of her observations at room 6 on the morning of 12 October 2014 and her arrest and interview of the accused that afternoon.
Brevet Sergeant Michael Strange gave evidence of observations he made and photographs that were taken of blood and other matters in room 6 on the morning of 12 October 2014. Brevet Sergeant Peter McKenzie gave expert evidence of opinions he formed, looking at those photographs, concerning the type of blood spatter on the floor, French door and walls of room 6 and the direction of travel of that blood.
Oliva Handt gave expert evidence concerning DNA found on clothing of the accused, Mr Fitzsimmons and Mr Corbett and in blood located in room 6 and the common bathroom shared by room 6.
Dr Charlwood gave evidence of her observations in room 6 on the morning of 12 October 2014, her findings at the autopsy of Mr Fitzsimmons on 13 October 2014 and her opinion as to the cause of death.
Professor Jason White gave expert evidence concerning the effects of alcohol, cannabis and diazepam on mental state and mental and bodily functions.
There were 60 agreed facts. Various documents and photographs were tendered.
I found all witnesses who gave evidence to be honest witnesses. I address their reliability where necessary below.
Findings as to the incident
Prosecution case
The prosecution case relies essentially on the evidence of Mr Corbett in conjunction with the evidence about blood and injuries to Mr Fitzsimmons and Mr Corbett. The prosecution contends that Mr Corbett’s evidence is reliable and is consistent with and supported by the other evidence and by the evidence given by Mr Thalbourne and Mr Rankine.
Mr Corbett
Mr Corbett gave evidence that he and Mr Fitzsimmons were downstairs in the courtyard having a smoke and a drink when they saw the accused. The accused joined them. After a while, the three of them went upstairs to room 6 and went out on the balcony, where they were smoking and drinking. Mr Corbett and Mr Fitzsimmons were drinking the Fruity Lexia. The accused was also drinking. Mr Corbett thought he was also drinking the Fruity Lexia but accepted that he may have been drinking beer. I find that he was drinking beer.
Mr Corbett gave evidence that at some point Mr Fitzsimmons lay down in the corner just inside the French doors. Mr Corbett and the accused moved inside, going onto the balcony from time to time to have a smoke. Mr Corbett was sitting in the patchwork chair and the accused was sitting in the white swivel chair. Mr Corbett and the accused continued talking and drinking for some time.
Mr Corbett gave evidence that the accused suddenly jumped up out of the swivel chair, abused Mr Fitzsimmons by saying “you fucking dog, get up, get up” and stomped on him a few times (in the order of two or three times). Mr Corbett demonstrated the motion as bringing one’s lower leg down more or less vertically. The accused kicked Mr Fitzsimmons a few times (in the order of two or three times). Mr Corbett demonstrated the motion as moving one’s lower leg more or less horizontally outwards. The accused then jumped up and down on Mr Fitzsimmons several times (in the order of 10 or 12 times). Mr Corbett tried to stand up to intervene but experienced difficulty doing so due to his crook left leg. He reached forward trying to grab the accused. He said to the accused “calm down mate, calm down, settle down, what’s going on?”
Mr Corbett gave evidence that the accused stopped jumping on Mr Fitzsimmons, sat down on the swivel chair and relaxed for a while. He then jumped up and started jumping on Mr Fitzsimmons again. Mr Corbett tried to stop him by putting his arms around him. The accused turned around, said “You keep out of this” and punched Mr Corbett a few times (in the order of four or five times) with his right fist to the left-hand side of Mr Corbett’s face.
Mr Corbett gave evidence that the accused then sat in the swivel chair again, collected his thoughts and walked out through the door. Mr Corbett hobbled towards the door behind him. Mr Corbett then fell into bed asleep. He almost passed out before he got to the bed.
Mr Corbett estimated that the first episode whereby the accused stomped, kicked and jumped on Mr Fitzsimmons lasted in the order of one minute or one minute and a half and the second episode whereby the accused jumped on Mr Fitzsimmons lasted about the same time or perhaps a bit less. Mr Corbett estimated that the interval between the two episodes was in the order of two minutes.
Mr Corbett gave evidence that he awoke the next morning with the left-hand side of his face feeling sore. He had a smoke and a drink. When he felt Mr Fitzsimmons’ back and it was cold, he went into a state of shock. After speaking to Mr Wright, who called the ambulance, Mr Corbett went to the bathroom and attempted to wash the blood off his face. The police on that morning took a sample of the blood from the wash basin and it was later found to contain DNA in respect of which there was a very high likelihood that it was Mr Corbett’s blood. Photographs taken by the police showing injuries to the left side of Mr Corbett’s face were tendered. Photographs showing blood on Mr Corbett’s pillow were also tendered.
Mr Corbett gave evidence that on the Saturday night he had not realised that Mr Fitzsimmons was badly injured. Mr Corbett said that he did not put the towel under Mr Fitzsimmons’ head.
Other Carrington Cottages witnesses
Mr Thalbourne gave evidence that during the evening of 11 October 2014 he heard conversation from room 6 over a substantial period. He was trying to go to sleep. At a late period, he heard a voice say firmly about three sentences including words to the effect “You are being a fool. Go away.” He thought it was Mr Fitzsimmons’ voice. After a short time (which he estimated to be in the order of a few minutes), he heard the sound of smashing glass and then a group of rapid heavy bangs. There was then another sound of breaking glass, followed by another group of rapid heavy bangs. There was then a short period of silence (which he estimated to be in the order of one and a half minutes), followed by another group of rapid heavy bangs. There was then a short period of silence (which he estimated to be in the order of one minute), followed by the sound of someone walking across the floor and exiting the front door down the stairs. Mr Thalbourne estimated that the first group of bangs comprised 14 or 15 bangs, the second group was the same, and the third group was eight or nine bangs. Mr Thalbourne thought that the incident that he described occurred at about 11 pm but did not identify how he estimated this.
Mr Twaits gave evidence that during the evening of 11 October 2014 he was watching a movie called Triangle. He heard people talking and then heard the sound of breaking glass coming from the west side of his room.
Mr Rankine gave evidence that he went to sleep at about 8 pm on the evening of 11 October 2014. He was awoken by the sound of loud banging, which continued for some time. He said that he had an alarm clock in his room and that he awoke at 11 pm. He estimated that the loud banging continued for a period in the order of 5 to 10 minutes. He then heard someone say loudly words to the effect “Oh Jesus Christ”. Mr Rankine thought that the sound was coming from downstairs.
Blood stains
Photographs showing a large pool of blood in the vicinity of Mr Fitzsimmons’ head were tendered. Photographs showing blood spatter on the skirting, architraves and wall in the vicinity of Mr Fitzsimmons’ head were tendered. Photographs showing blood spatter on the French door and door sill closest to Mr Fitzsimmons’ head were tendered.
Brevet Sergeant McKenzie gave evidence that he joined what is now known as the Forensic Response Section of South Australia Police in 1992. In 2000, he undertook a five-day course in blood pattern analysis at the Forensic Science Centre in Victoria. The course encompassed the characteristics and methods of recognition of the main categories of blood spatter, being projected blood stains (which has subcategories including expirated bloodstains); passive bloodstains (deposited through gravity alone); transfer blood stains (which has subcategories including wipe stains); and miscellaneous bloodstains (a residual category). The course encompassed methods of ascertaining the two-dimensional directionality of blood at the point of impact with a surface, ie whether it is moving from left or right and up or down. He has successfully completed a National Institute of Forensic Science proficiency test each year since 2000. He has formed opinions about blood spatter in about 200 cases since 2000.
The accused initially challenged Brevet Sergeant McKenzie’s expertise to give the evidence which he did. A voir dire was held and I initially received his evidence de bene esse. During cross-examination, reference was made to stringing, which involves ascertaining a specific point or points in three dimensions from which blood found on a surface or surfaces has emanated. While the course undertaken by Brevet Sergeant McKenzie in 2000 incorporated some aspects of stringing, there is an advanced course that was introduced since then that addresses stringing in greater depth. Brevet Sergeant McKenzie has used stringing principles only twice to ascertain a specific point or points in three dimensions from which blood has emanated. Ultimately, Brevet Sergeant McKenzie did not give any evidence in this case using stringing or about a specific point or points in three dimensions from which blood emanated. Ultimately, the accused did not pursue his initial objection to Brevet Sergeant McKenzie’s expertise. In any event, I am satisfied that Brevet Sergeant McKenzie has adequate expertise to express those opinions which he expressed during his evidence.
Brevet Sergeant McKenzie expressed his opinions on the basis of photographs of bloodstains taken on 12 October 2014 and did not see the bloodstains themselves. He visited room 6 shortly before giving evidence to check the context in which the bloodstains were found. Brevet Sergeant McKenzie used a scale contained within a standard sticker placed by the Forensic Response Section on the wall to ascertain the vertical and horizontal distance of bloodstains shown in the photograph. Despite criticism of this method in cross-examination, I accept that the measurements undertaken by Brevet Sergeant McKenzie using this technique were essentially accurate.
Brevet Sergeant McKenzie referred to an area of blood stains towards the top of the skirting board to the east of Mr Fitzsimmons’ head (area 1). He said that there were in excess of 30 elliptical stains in respect of which the blood was travelling from right to left (west to east), which fell within the projected category and either the impact or cast off subcategories. There was a transfer stain associated with and immediately below this group.
Brevet Sergeant McKenzie referred to an area of blood stains on the wall above the skirting in the vicinity of Mr Fitzsimmons’ head (area 2). This contained near circular stains, which fell within the projected category and the expirated sub-category. It fell within the category of a transfer stain, and the subcategory of a wipe stain. He expressed the opinion that, after the blood had been deposited on the wall and while it was still liquid, it had been subject to a downwards wiping motion.
Brevet Sergeant McKenzie referred to an area of blood stains on the skirting below area 2 (area 3) and another area of blood stains on the wall to the right, or west, of area 2 (area 4). He expressed the opinion that these were transfer stains.
Brevet Sergeant McKenzie referred to an area of blood stains immediately to the left (or east) of the architrave (area 5). He expressed the opinion that these were projected stains, and probably expirated stains (although the suggestion of expirated stains might have been an artefact of the flashlight) and, at the same time, it fell within the category of a transfer stain, and the sub-category of a wipe stain.
Brevet Sergeant McKenzie referred to an area of blood stains on the architrave (area 6). There were over 100 separate, primarily elliptical, bloodstains which he said fell within the projected category. The blood was travelling from left to right (east to west). In general terms, the bloodstains above approximately 200 mm above the floor were travelling upwards and the bloodstains below approximate 200 mm above the floor were travelling downwards. Brevet Sergeant McKenzie expressed the opinion that the blood travelling upwards was travelling in at least two different directions in a two-dimensional sense, indicating that it had come from two different sources in a two-dimensional sense. This opinion was expressed by drawing lines of convergence. I accept that Brevet Sergeant McKenzie has the expertise to express this opinion.
Brevet Sergeant McKenzie referred to an area of bloodstains on the left-hand (eastern) French door and door sill below that French door (area 7). He expressed the opinion that this fell within the projected category, that the blood was travelling from left to right and downwards, and that the blood deposited on the door and sill was travelling in the same direction and was deposited at the same time. He expressed the opinion that the door was closed when the blood spatter was deposited on the door and sill.
Brevet Sergeant McKenzie referred to an area of bloodstains on the left-hand (eastern) French door and door sill below that French door (area 7). He expressed the opinion that this fell within the projected category, that the blood was travelling from left to right and downwards, and that the blood deposited on the door and sill was travelling in the same direction and was deposited at the same time. He expressed the opinion that the door was closed when the blood spatter was deposited on the door and sill.
DNA evidence

Reference samples of DNA were extracted from mouth swabs taken by the police from the accused and Mr Corbett and from a blood sample taken from Mr Fitzsimmons at autopsy.
The jeans and shoes that the accused was wearing when arrested were seized by police and submitted to Forensic Science SA for DNA analysis. Ms Handt expressed the opinion that the probability was 800,000 to 1 in favour of the hypothesis that Mr Fitzsimmons was a contributor to a mixed DNA profile found in a blood-like stain on the hem of the jeans. Ms Handt expressed the opinion that the probability was greater than 100 billion to 1 in favour of the hypothesis that Mr Fitzsimmons was a contributor to DNA profiles found in blood-like stains on the accused’s right shoe. This blood may have been deposited on the accused’s jeans and shoes when he returned to room 6 after visiting the BP service station. This evidence does not therefore assist in determining what occurred during the incident.
The Jet Pilot T-shirt found in room 6 on 12 October 2014 was seized by police and submitted to Forensic Science SA for DNA analysis. Ms Handt expressed the opinion that the probability was greater than 100 billion to 1 in favour of the hypothesis that Mr Corbett was a contributor to the DNA profile obtained from blood-like stains detected on the lower rear of the t-shirt.
A swab of a blood-like stain from the bathroom sink was taken by police on 12 October 2014 and submitted to Forensic Science SA for DNA analysis. Ms Handt expressed the opinion that the probability was greater than 100 billion to 1 in favour of the hypothesis that Mr Corbett was a contributor to the DNA profile obtained from the blood-like stain.
Injuries to Mr Fitzsimmons
Photographs showing injuries to Mr Fitzsimmons were tendered. Dr Charlwood gave evidence that the blood that she saw in the vicinity of Mr Fitzsimmons’ head in room 6 emanated principally from the area in the vicinity of his mouth. Other sources of free-flowing blood were injuries to each of his ears, but the contribution from his ears to the pool of blood was relatively small compared to the contribution from the area in the vicinity of his mouth.
Dr Charlwood gave evidence that she took Mr Fitzsimmons’ rectal temperature at 11.19 am and expressed the opinion that he had died approximately 11 to 17 hours earlier.
84 autopsy photographs were tendered together with a chart prepared by Dr Charlwood showing the location of injuries on the front and back of Mr Fitzsimmons’ body and the left-hand side and right-hand side of his head. Dr Charlwood numbered apparent external injuries from 1 to 59.
Dr Charlwood expressed the opinion that Mr Fitzsimmons suffered 24 injuries to his head and neck and these were caused by a minimum of 14 separate blunt force contacts. Dr Charlwood gave evidence that she observed a distinctive linear or herringbone pattern of bruising and abrasion on the skin as part of six injuries, being those numbered 12, 13, 14, 15 (Dr Charlwood expressed the opinion that what was numbered 15 comprised two separate injuries) and 16. Number 12 (photo 25) comprised bruising to the right forehead and number 13 (photo 22) comprised bruising, laceration and abrasion ranging from above the right ear down to the upper part of the right-hand lower jaw. Number 14 (photos 31 and 32) comprised bruising to the left forehead; number 15 (photos 33 to 41) comprised bruising, abrasion and superficial laceration from the left ear to just left of the nose, and number 16 (photos 42 and 43) comprised bruising below the left-hand jaw. Dr Charlwood expressed the opinion that the bruising showing the linear or herringbone pattern was consistent with and strongly suggestive of having been caused by the underside of the sole of a shoe.
Dr Charlwood gave evidence that number 22 (photos 45 and 46) and number 23 (photo 47) comprised bruises and abrasions on the right- and left- hand sides of the back of the head respectively, and number 1 (photos 3 to 5) and number 17 (photos 6 and 7) comprised bruises and abrasions on the right- and left-hand sides of the front of the neck respectively. Dr Charlwood expressed the opinion that these injuries were consistent with having been caused by a kicking or stomping action.
Dr Charlwood identified on the chart of Mr Fitzsimmons’ head number 10 (photo 18) comprising bruising to his right upper eyelid and number 11 (photo 36) comprising bruising and abrasion to his left upper eyelid.
Dr Charlwood gave evidence that Mr Fitzsimmons suffered substantial injuries in the area of his mouth, chin and lower jaw (numbers 2 to 9) (photos 8 to 17). These injuries included a fracture of the right-hand lower jaw and a molar tooth in the same area; bruising on the right-hand side of the chin, lacerations and bruising to the lips and inside the mouth; tearing of the buccal mucosa inside the mouth; and a laceration through the lower lip probably caused by tooth penetration. Dr Charlwood expressed the opinion that these injuries resulted from more than one impact and were consistent with blows involving a combination of compression and tangential shearing.
Dr Charlwood gave evidence that the injuries to Mr Fitzsimmons’ head appeared to be relatively recent. Dr Charlwood accepted in cross-examination that, absent bruising displaying a yellow colour (which indicates that the bruising is at least 18 hours old), it is not possible to ascertain the time between an injury leading to a bruise and the time when the bruise is observed by a pathologist or other observer. In particular, absence of a yellow colour does not demonstrate that a bruise is less than 18 hours old. Dr Charlwood said that the lacerations she observed on Mr Fitzsimmons’ head, including the lacerations in and around his mouth and ears, did not show any sign of healing.
Dr Charlwood gave evidence that there were subdural and patchy subarachnoid haemorrhages over the surface of Mr Fitzsimmons’ brain and micro haemorrhages principally within the anterior corpus callosum (the structure that connects the two hemispheres of the brain). Dr Charlwood gave evidence that there was blood in Mr Fitzsimmons’ airways. Dr Charlwood expressed the opinion that the cause of death was the head and neck injuries with acute alcohol intoxication.
Dr Charlwood gave evidence that Mr Fitzsimmons had a number of bruises on his torso and limbs that appeared to be relatively old. I do not address those injuries.
Dr Charlwood gave evidence about injuries on the front left-hand side of Mr Fitzsimmons’ shoulder and chest. Numbers 24 and 46 (photo 51) comprised bruising and a combination of bruising and coarse haemorrhaging respectively. Number 25 (photos 49 and 50) comprised bruising and abrasions on the left-hand side of the chest. Dr Charlwood expressed the opinion that these injuries were caused by blunt force impact and, while non-specific, were consistent with having been caused by kicking or stomping. Dr Charlwood gave evidence about number 26 (photo 48), being a bruise on Mr Fitzsimmons’ lateral right flank.
Dr Charlwood gave evidence about injuries to Mr Fitzsimmons’ arms. Numbers 35 (photo 60) and 37 (photo 62) comprised bruises in the area of the back of the elbow and the back of the upper right arm respectively. Numbers 32 (photo 57) and 33 (photo 58) comprised bruises to the back and front respectively of the lower right arm. Numbers 27, 28 and 31 (photos 52, 53 and 56) comprised bruises or abrasions to the right hand. Number 29 (photo 54) comprised a dislocation of the metacarpal phalangeal index finger of the right hand. Numbers 39 (photo 64) and 41 (photo 65) comprised injuries to his left hand.
Dr Charlwood gave evidence about injuries to Mr Fitzsimmons’ legs. Number 53 (photo 77) comprised bruises and haemorrhages to his upper right thigh. Numbers 49 to 51 (photo 76) comprised bruises and abrasions in the vicinity of the front of his right knee. Numbers 56 (photo 80) and 57 (photos 82 and 83) comprised bruises to the back of his right knee and right calf respectively. Dr Charlwood showed in her diagram two small injuries on the front of Mr Fitzsimmons’ left leg but was not asked questions about them.
The autopsy photos also showed large areas of discolouration on Mr Fitzsimmons’ upper back and upper legs. Dr Charlwood gave evidence that this was the result of livor mortis after Mr Fitzsimmons’ body had been removed from room 6.
Defence case
The accused did not give evidence. The accused gave an account of the incident when interviewed by the police on 12 October 2014. The accused said that Mr Fitzsimmons attacked him with a big pair of scissors, he punched Mr Fitzsimmons once in the jaw and, when Mr Fitzsimmons went to stand up to attack him again, he kicked Mr Fitzsimmons once in the head.
During the interview, the accused said:
A.     I was, I was about to leave and ended up, I had an argument with the fella that was sitting there. He come up, pushed him on his arse at the start then he stood up out of, so I was pushing him back, he was standing, standing up to have a go at me so I pushed him back into his chair and I started grabbing a couple of beers which I had sitting in the fridge there and as I’ve come through the back door, he’s tried, he had a big pair of scissors in his hand and he’s tried to hit me a couple of times there and there’s a couple of tiny little marks that’s there, there and there. I’ve just reacted and turned around and hit him, I think I hit him in the jaw and he fell onto the ground - picked his - so swang back, picked his scissors back up and as he was getting up, I kicked him in the head so – that’s how he’s dead mate. Now the poor cunt’s dead.
…
A.     An argument come up. I can’t remember what the argument, come, even started, what it was over ’cause it was something ridiculous. The thing is he was, Pete’s mate said “You want to have a go, mate?” or something along them lines and he’s actually, he couldn’t even, he couldn’t even bloody stand up, you know, he was pretty drunk. So and I’ve stood up. I said ’cause I just said I said to Pete I said “I’m gonna go home, mate”. And I’ve walked, I’ve stood up and walked out towards the fridge to grab two ’cause I still had two beers in there so I grabbed my beers, but as I’ve come through the door, he’s come onto the side of me with a pair of scissors and gone like that, so. And I turned around and I, it’s not that he really hurt me but he went to do it again as well. He done, got me three times, like he’s got me once there, once there and once there. And that’s when I’ve, I, I just hit him, mate. I hit him, with my, with my left hand and he hit the ground pretty hard and he’s, by that stage he’s grabbed the scissors again ’cause they fell out pretty much at his feet and he’s got up to, I thought to try and stab me again so I just kicked him under the chin … Pretty sure this side of the face.
…
A.     That was it, mate. I just left. Oh, actually I’ve put him on his side. I said to Pete, I think I’ve, I’m not too sure if he rang an ambulance or not. I can’t really recall that. But I laid, I put him on his side and he was pretty much snoring so I said “You’re probably best to be” - I think I’ve, I’m pretty sure Pete rang the ambulance but I’m not hundred percent mate.
…
A.But it was, he was sitting there and he said something towards like “You, do you want to have a go mate”, or some shit. I was just, and I was sitting there, he’s gone to get up so I’ve got up and pushed him back down. And I’ve said I said “Oh fuck this. I’m going home.” So I’ve got, I’ve jumped up, gone to, so I grabbed my beers out of the fridge, gonna grab a couple of tall, tall long legs out of the fridge and yeah, as I’ve came, as I’ve turned around he’s come up and jabbed me in the side with a pair of scissors. He’s got me two or three times, so I turned around, hit him with my left hand. ’Cause I was, I think I held onto the door and just went whack. And then as he fell down, he was getting back up and he, by that stage he’s got the scissors back in his hand and I kicked him.
…
Q.    Where did the scissors come from?
A.    They were sitting in between us on the table.
…
Q.    Where exactly in the unit did it all happen?
A.    Out on the balcony.
…
Q.    Yeah, like when you left the unit, where did you see him?
A.    He was still laying on the ground, mate.
Q     Where exactly?
A.    Just out the front of, and I put a pillow under his head, I’m pretty sure I put a pillow or something and rolled him on his side ’cause I thought he was actually really hurt. And then he started snoring. Pete said “he’ll be alright”.
…
Q.    So when you say it started out on the balcony, is that where, and you said he was just laying on the ground, is that, where, where exactly cause there’s double doors that you mention that go out to the balcony?
A.    Straight in front of the double doors, I’m pretty sure.
Q.    On the inside or the outside.
A     On the outside.
The accused contends that Mr Corbett’s evidence is not reliable and is inconsistent with the evidence of Mr Fitzsimmons’ injuries and the evidence of Mr Thalbourne and Mr Twaits.
Directions
The onus of proof as to what occurred during the incident lies on the prosecution. I must be satisfied beyond reasonable doubt as to what occurred. The accused is not obliged to prove anything or to advance a positive case.
In considering the evidence given by Mr Corbett, I must take into account the effect of alcohol on perception and memory.
The evidence by Mr Corbett that in the course of the incident he was punched by the accused and evidence relating to an injury in the vicinity of his eye comprises evidence of discreditable conduct within the meaning of section 34P of the Evidence Act. I direct myself that this evidence may be used for the purpose of my having a complete account from Mr Corbett of what occurred during the course of the incident and for the purpose of assessing the credit of Mr Corbett as a witness and the credit of the account of the incident given by the accused during the police interview (the permissible purposes). I direct myself that this evidence may not be used for the purpose of reasoning that the accused is more likely to have committed the offence charged because he engaged in discreditable conduct, for the purpose of reasoning that the accused has a propensity to commit offences of violence and therefore is more likely to have committed the offence charged, or for any purpose other than the permissible purposes.
The evidence by Messrs Taylor, Isaacson and Schanz that on 11 October 2014 at the Gladstone Street address the accused became angry and yelled at Mark and according to Mr Taylor attempted to kick Mark and according to Messrs Isaacson and Schanz invited Mark to step out in the laneway comprises evidence of discreditable conduct within the meaning of section 34P of the Evidence Act. I direct myself that this evidence may be used for the purpose of showing that the accused was subject to an underlying angry mood on 11 October 2014 which may have predisposed his acting during the incident in a manner in which he would not otherwise have acted (the permissible purpose). I direct myself that this evidence may not be used for the purpose of reasoning that the accused is more likely to have committed the offence charged because he engaged in discreditable conduct, for the purpose of reasoning that the accused has a propensity to commit offences of violence or threats of violence and therefore is more likely to have committed the offence charged or for any purpose other than the permissible purpose. However, in the absence of evidence from Mark about his interaction with the accused on that occasion and more detailed evidence from the witnesses about what occurred, I consider that the evidence is in fact too vague to use for the permissible purpose and I do not in fact have regard to it.
The evidence of the BP service station video surveillance footage and the evidence of Senior Constable Humphris and Constable Georgiou that the accused displayed anger at the service station before calming down does not comprise evidence of discreditable conduct within the meaning of section 34P of the Evidence Act. Nevertheless, I direct myself that this evidence may be used for the purpose of showing that the accused was subject to an underlying angry mood on 11 October 2014 which may have predisposed his acting during the incident in a manner in which he would not otherwise have acted (the permissible purpose). I direct myself that this evidence may not be used for the purpose of reasoning that the accused is more likely to have committed the offence charged because he displayed anger or for the purpose of reasoning that the accused has a propensity to display anger and therefore is more likely to have committed the offence charged. However, in the absence of evidence from the customers and/or staff at the service station about their interaction with the accused on that occasion, I consider that the evidence is in fact too vague to use for the permissible purpose and I do not in fact have regard to it.
The evidence that the accused had active ingredients of cannabis in his blood on 12 October 2014 and that he said when interviewed on 12 October 2014 that he had smoked cannabis comprises evidence of discreditable conduct within the meaning of section 34P of the Evidence Act. I direct myself that this evidence may be used for the purpose of assessing the effect of drugs (including alcohol and cannabis) upon the accused’s state of mind at the time of the incident on 11 October 2014 and in particular whether he acted with the intention of inflicting grievous bodily harm on Mr Fitzsimons (the permissible purpose). I direct myself that this evidence may not be used for the purpose of reasoning that the accused is more likely to have committed the offence charged because he engaged in discreditable conduct, for the purpose of reasoning that the accused has a propensity to commit offences and therefore is more likely to have committed the offence charged, or for any purpose other than the permissible purpose.
Findings
Mr Corbett’s breath alcohol reading taken at 10.20 am on 12 October 2014 was 0.192 per cent. Professor White expressed the opinion that, assuming Mr Corbett drank one standard glass of alcohol in the morning, his blood alcohol reading at about 11 pm on the previous night would have been approximately 0.37 per cent. Professor White gave evidence that alcohol is a sedative drug, tending to inhibit or slow down brain activity; alcohol can also impair memory; and people whose memory has been impaired by alcohol may confabulate events, ie inadvertently fill in gaps in memory by imagination. Professor White gave evidence that alcoholics tend to build up a tolerance to alcohol and alcohol in a given concentration tends to have less effect for both physiological and psychological reasons on an alcoholic compared to a non-alcoholic person.
I was impressed by the manner in which Mr Corbett gave his evidence. He was a straightforward witness. I considered that he was neither understating nor overstating matters about which he gave evidence. He made appropriate concessions when he did not know or was not certain about something. He said that, while his recollection of other matters that occurred on 11 October 2014 may well have been vague in various respects, his recollection of the attack on Mr Fitzsimmons was clear. It is not surprising that Mr Corbett would have retained a clear recollection of the attack, assuming that it occurred as he narrated, because it was very unusual and highly emotive.
Mr Corbett’s version of events is not inconsistent with, or undermined by, the evidence of Mr Fitzsimmons’ injuries, including the evidence of Dr Charlwood. It is true that Mr Corbett gave evidence that the stomping, kicking and jumping by the accused were delivered in the region of Mr Fitzsimmons’ back and ribcage, whereas the predominant and most serious injuries to Mr Fitzsimmons were in the region of his neck and head. However, Mr Corbett said in evidence that they were delivered all over Mr Fitzsimmons’ back and it may have been close to the back of his neck. Mr Corbett said that he did not get a clear view of precisely where the accused was jumping because the accused was in the way. Mr Corbett said that he was sitting on the patchwork chair and it is likely that his view of Mr Fitzsimmons’ head and of precisely where the accused was jumping was impeded by the accused’s body. It is true that Mr Corbett said that Mr Fitzsimmons was lying on his front when the accused jumped on him but Mr Corbett also said that the impacts delivered by the accused had the effect of moving Mr Fitzsimmons’ body and this is readily understandable.

Dr Charlwood expressed the opinion that there were at least 14 separate blows delivered to the area of Mr Fitzsimmons’ head and neck. Dr Charlwood accepted that it was possible that an injury on one side of Mr Corbett’s head might have been caused by impact between his head and the floor as a result of a blow delivered to the opposite side of his head. Dr Charlwood also accepted that it was possible that what she regarded as two separate injuries had been caused by a single blow. Nevertheless, Dr Charlwood adhered to her opinion that there were multiple blows delivered to Mr Fitzsimmons. I am satisfied that there were multiple blows delivered to Mr Fitzsimmons. This supports the version of events given by Mr Corbett. It is also inconsistent with the version of events given by the accused during interview.
I am satisfied that the injuries to Mr Fitzsimmons’ head and neck were inflicted on the night of 11 October 2014. While Dr Charlwood could not age the bruising, she said that there were no signs of healing of the lacerations. There was no suggestion that Mr Fitzsimmons was walking around during the previous day with those head injuries and that is inconceivable. It is inconceivable that Mr Corbett and the accused would have simply socialised with Mr Fitzsimmons while he had those head injuries.
The amount and distribution of blood from Mr Fitzsimmons on the floor and wall is consistent with Mr Corbett’s version of events. Brevet Sergeant McKenzie gave evidence that an initial blow does not cause the projection of blood: this is only caused by a subsequent blow to an area of the body that is already bleeding. The account given by the accused during interview was that he only kicked Mr Fitzsimmons once after having punched him once. At most, this would have given rise to a single projection of blood. The blood stains on the wall, skirting board, architraves and French door are more consistent with multiple blows. It is true that the possibility of only one punch and one kick cannot be ruled out by the pattern of the blood stains, but the overall appearance of the blood on the floor and wall tends to support Mr Corbett’s version of events.
Mr Corbett’s version of the incident included that the accused punched him several times to the left-hand side of his head towards the end of the incident. This part of Mr Corbett’s version is corroborated by objective evidence. Photographs taken of Mr Corbett on the morning of 12 October 2014 clearly show injuries in the vicinity of his left eye. Mr Wright gave evidence that he observed Mr Corbett’s left eye was red and swollen and that there was blood on the left-hand side of his face and on his jeans. The accused during his interview with police said that there had been a fight between Mr Corbett and Mr Fitzsimmons earlier in the day. However, extensive blood was found by police on Mr Corbett’s pillow, Mr Corbett’s blood was found in the wash basin of the shared bathroom[27] and Mr Corbett’s DNA was found in blood-like stains on the lower rear of the accused’s Jet pilot T shirt.[28] It is very unlikely that these would all have occurred if the injury had happened earlier the previous day during a fight between Mr Corbett and Mr Fitzsimmons. It is an agreed fact that Mr Barolo, a paramedic, dressed and cleaned an injury in the vicinity of Mr Corbett’s left eye and that he described it as having clotted and was scabbing and that it did not appear recent. This is consistent with the injury having had overnight to begin healing and is not inconsistent with Mr Corbett’s evidence.
[27] Ms Handt expressed the opinion that the probability was greater than 100 billion to 1 in favour of the hypothesis that Mr Corbett was a contributor to the DNA profile. I am satisfied that it was Mr Corbett's blood that was in the bathroom sink.
[28] Ms Handt expressed the opinion that the probability was greater than 100 billion to 1 in favour of the hypothesis that Mr Corbett was a contributor to the DNA profile. I am satisfied that it was Mr Corbett's blood that was on the rear of the accused’s T-shirt.
The accused told the police during the interview that Mr Fitzsimmons attacked him with a big pair of green scissors. Mr Corbett denied that this occurred. If the account by the accused in this respect were true, it may be expected that a big pair of scissors would have been found on 12 October 2014 on the floor of room 6 in the vicinity of Mr Fitzsimmons. No such scissors were found. Only a small pair of manicure scissors were found in a drawer of the small cabinet in room 6. During the interview, the accused indicated three small marks on his abdomen which he said represented the result of the attack by Mr Fitzsimmons. Photographs of these marks taken by the police were tendered. There is nothing in the appearance of those marks which suggests that they were caused by such an attack and it is inherently unlikely that a stabbing motion three times as described by the accused would have caused three such limited marks.
Mr Thalbourne gave evidence that he heard a series of bangs. He described what he characterised as two lots of rapid bangs, followed by silence for a period of the order of one and a half minutes, followed by further rapid bangs. This evidence is consistent with, and tends to confirm, Mr Corbett’s version of events.
Mr Thalbourne gave evidence that, during the daytime while it was light, he went out on the balcony and saw three persons outside room 6, two sitting and one standing. The persons sitting were obscured by the person standing. He believed that the person standing was Mr Rankine. On the morning of 12 October 2014, Senior Constable Kingshott took a statement from Mr Thalbourne. In that statement, Senior Constable Kingshott recorded that this had occurred at about 10pm and that Mr Thalbourne did not recognise the person standing. Mr Thalbourne signed Senior Constable Kingshott’s notebook on that morning and signed in the presence of Detective Burke a witness statement to this effect prepared by Senior Constable Kingshott on 31 January 2015. In cross examination, Mr Thalbourne said that the police kept pressing him to say what time something happened and that Senior Constable Kingshott paraphrased rather than recorded the words used by Mr Thalbourne. Senior Constable Kingshott gave evidence that he did ask Mr Thalbourne to tell the whole story before he wrote out a statement in his notebook. While Senior Constable Kingshott gave evidence that he scrupulously attempts to get down exactly what a witness tells him, I have no hesitation in accepting Mr Thalbourne’s evidence that he in fact saw the three persons during the daytime rather than during the night time. His evidence in relation to the timing does not cause me to doubt his evidence about the bangs that he heard.
Mr Corbett gave an estimate that the accused jumped on Mr Fitzsimmons 10 or 12 times, followed by a break of about two minutes, followed by jumping on Mr Fitzsimmons for about the same time, or perhaps a bit less, as the first time. Mr Thalbourne gave an estimate that he heard 14 or 15 bangs, then a sound of breaking glass, followed by another 14 or 15 bangs, followed by an interval of about a minute and a half, followed by a further eight or nine bangs. It may be expected to be impossible for a witness in the position of Mr Corbett or Mr Thalbourne to be able to be precise in identifying the number of jumps he saw or bangs he heard. In addition, what Mr Corbett counted as one jump might have been heard by Mr Thalbourne as two bangs. Mr Thalbourne’s evidence of multiple bangs is consistent with and supports Mr Corbett’s evidence of multiple impacts. It is also inconsistent with the version given by the accused to the police.
It may be expected to be very difficult for a witness in the position of Mr Corbett or Mr Thalbourne to be precise about the time that elapsed while Mr Corbett was watching impacts or Mr Thalbourne was hearing bangs or during the interval between episodes. It is likely that a witness would tend to overestimate the time that elapsed. It is likely that in fact the time that elapsed was less than each witness estimated.
Mr Rankine gave evidence that he heard a series of bangs at about 11 pm, which he estimated continued for five to ten minutes. Mr Rankine thought that the sound was coming from downstairs, but it would have been difficult for him to place the vertical dimension of the sound. It is likely that what he heard were sounds generated during the incident but in fact the time that elapsed was less than five minutes due to the difficulties of a witness accurately estimating elapsed time.
Mr Corbett was not precise or accurate in his estimation of the time of other events that occurred on 11 October 2014. This is not surprising because he had no particular reason to notice or commit to memory the timing of those events. In particular, it is not clear when the accused first met up with Mr Corbett and Mr Fitzsimmons on that day. On Mr Corbett’s part, he was asked in evidence in chief if he could remember what time he saw the accused and he said he wouldn’t be sure and it was probably shortly after lunch sometime, early afternoon. In cross examination, he was asked what time he first saw the accused and he said it was probably mid-morning. He accepted that he told the police on 12 October 2014 that he wasn’t really sure but he thought it was mid to late afternoon. These different answers do not cause me to doubt the accuracy of his evidence as to what occurred during the incident.
It is impossible to determine precisely what time the accused did meet up with Mr Corbett and Mr Fitzsimmons. The accused himself said during his interview with the police that it was probably 3 pm or 4 pm when he met up with them. Statements by Mr Taylor and Mr Schanz were read in which they said that the accused left the Gladstone Street address at about 5pm. However, a statement by Mr Isaacson was read in which he said that the accused arrived sometime mid-morning or about lunchtime and stayed for a few hours and the accused and Mr Corbett both suggested that they met up significantly before 5pm. There is no reason why any of these witnesses had a particular reason to notice or commit to memory the time when the accused left Gladstone Street or met up with Mr Corbett and Mr Fitzsimmons. Nothing turns on the particular time when this occurred. It is likely that it was mid-afternoon.
Mr Corbett gave evidence that on 11 October 2014, while it was still daylight, he accidentally broke a pane of glass in the French door when he was walking in from the balcony. In the witness statement prepared by police on the morning of 12 October 2014, the police recorded that Mr Corbett told them that the glass broke during the incident when Mr Corbett tried to restrain the accused. Mr Corbett explained that statement in his evidence by saying that, when he gave the statement to police that morning, he was still groggy from the punches he had received the night before and his recollection was in fact that the glass had been broken earlier in the day.
The accused during his interview by police gave no account of any glass being broken in the French door in the course of the incident. If this had occurred, and the accused had noticed and recalled it, it would have been in his interests to have mentioned it to the police. The fact that the accused did not mention it does not prove that it did not occur, but it is consistent with Mr Corbett’s evidence that the glass was not broken during the course of the incident.
I accept Mr Corbett’s evidence that he in fact broke glass in the French door while walking in from the balcony while it was still daytime. At the time of the incident, the glass in or out of the French door may well have been further broken. This may be what Mr Thalbourne and Mr Twaits heard. Glass fragments being found underneath and on top of Mr Fitzsimmons are not inconsistent with Mr Corbett’s evidence. Even if Mr Corbett were mistaken in his recollection and no glass was broken until the time of the incident, it would not cause me to doubt his account of the incident itself.
Mr Corbett gave evidence that at some point Mr Fitzsimmons lay down in the corner just inside the French doors. Mr Corbett was unsure precisely when this occurred. He said variously that he thought that it might have been around 4 or 5 pm, while it was still daylight or a couple of hours before the incident. In the circumstances, it is not unlikely that Mr Fitzsimmons would have laid down with his feet across the doorway comprising the French doors and it is not unlikely that Mr Fitzsimmons would have laid down on broken glass. As to the former, room 6 is relatively small and there was limited room for Mr Fitzsimmons to lie down: it is not inherently unlikely that he lay down more or less in the position in which he was found the following morning. As to the latter, the broken glass observed the following morning to be underneath Mr Fitzsimmons was very small and it is not inherently unlikely that he did not notice it when he lay down, nor is it inherently unlikely that some very small fragments of glass ended up on top of his legs as a result of the incident or the movements of the accused or Mr Corbett in the area of the broken glass.
Mr Thalbourne gave evidence that while it was daylight he saw three persons on the balcony one of whom was standing. This evidence is not inconsistent with Mr Corbett’s evidence that Mr Fitzsimmons lay down at least a couple of hours before the incident. First, even if Mr Thalbourne saw the accused with Mr Corbett and Mr Fitzsimmons, I accept his evidence, notwithstanding the content of his written witness statement taken by the police, that he saw the three persons while it was still daylight. Secondly, Mr Thalbourne gave evidence that the person he saw standing was a person who he believes to be Mr Rankine. Mr Rankine and the accused are of quite dissimilar appearance. In his statement to the police, which was tendered by the accused, Mr Thalbourne gave a description of the person standing as being 35 to 40 years old with black short hair which was receding. This is an accurate description of Mr Rankine but a quite inaccurate description of the accused.
Mr Twaits gave evidence that he thought that he saw Mr Corbett with two other men on the balcony on the Saturday evening. He could not recall what time this was. His description of the other men was that one was mid-30s and about 5 foot 8 or 9 inches tall and the other was a bit over 30, 5 foot 7 or 8 inches tall with fair hair. In cross examination, he accepted that he had told the police on the morning of 12 October 2014 that this occurred at about 9 pm. Mr Twaits’ evidence is not inconsistent with Mr Corbett’s evidence about Mr Fitzsimmons lying down because Mr Twaits’ description of the second man does not match Mr Fitzsimmons. No particular reason was identified why Mr Twaits would have had an accurate knowledge or recollection of the time at which he saw the three men and, like most other witnesses in the case, his perception and recollection of the time may well have been inaccurate. On his part, Mr Corbett had no particular reason to have an accurate knowledge or recollection of the time at which Mr Fitzsimmons lay down.
Mr Thalbourne gave evidence that, just before he heard the first bang, he heard a voice say firmly words to the effect “You are being a fool. Go away.” He thought it was Mr Fitzsimmons’ voice. This is not inconsistent with Mr Corbett’s account that Mr Fitzsimmons was lying down when the accused first assailed him. It would have been difficult for Mr Thalbourne to have recognised who was speaking given the path that the sound must have travelled to reach his ears and whatever Mr Thalbourne heard may have been spoken by someone else. Alternatively, Mr Corbett may simply not have noticed Mr Fitzsimmons speaking to the accused.
When the police attended at room 6 on the morning of 12 October 2014, they found a separate piece of Mr Fitzsimmons’ shirt that had been torn off the back of his shirt and was lying on the floor in the vicinity of the southern edge of the pool of blood. Neither Mr Corbett in his evidence nor the accused during the interview by the police made any reference to Mr Fitzsimmons’ shirt being torn. Mr Corbett said that he did not recall Mr Fitzsimmons’ shirt being torn. The fact that the shirt was torn does not cause me to doubt Mr Corbett’s evidence. There is no reason why the shirt could not have been torn as a result of the accused jumping on Mr Fitzsimmons’ back as described by Mr Corbett, particularly if the shirt was already well worn. There is no reason why the shirt would have been torn on the account given to the police by the accused.
Various criticisms are made by the accused of Mr Corbett’s evidence including what were submitted to be other inconsistencies within his evidence, between his evidence and his witness statement taken by the police and between his evidence and the evidence of other witnesses. It is submitted that Mr Corbett’s evidence is not reliable. I have taken into account all of those criticisms and submissions.
Notwithstanding the alcohol consumed by Mr Corbett, I am satisfied beyond reasonable doubt that the accused stomped on and kicked Mr Fitzsimmons a few times, jumped on him several times, stopped for a while and sat on the white chair, resumed jumping on him a few times, and punched Mr Corbett a few times when he attempted to intervene. I am satisfied beyond reasonable doubt that in the course of so doing the accused inflicted on Mr Fitzsimmons the injuries to his head and neck seen in the autopsy photographs and described by Dr Charlwood.
Cause of death
The prosecution case is that the injuries inflicted on Mr Fitzsimmons by the accused were a substantial cause of his death. The defence case is that the prosecution has not proved this beyond reasonable doubt and it is a reasonable possibility that alcohol was the substantial cause of Mr Fitzsimmons’ death.
The question whether an act or acts of the accused caused the death of the deceased is to be determined as a matter of common sense, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter. There may be two or more independent acts or events that cause death: the act or acts of the accused do not need to be the sole or immediate cause. The question is whether the act or acts of the accused were a “substantial” or “significant” cause of the death of the deceased.
Dr Charlwood gave evidence that amiloide precursor protein (APP) is released from damaged nerve cells and axon processes and is only detectable after approximately 35 minutes. APP was detected in Mr Fitzsimmons’ brain, which demonstrates that he survived at least approximately 35 minutes after suffering injury to his brain. It is not possible to ascertain how much longer he survived.
Dr Charlwood expressed the opinion that the cause of Mr Fitzsimmons’ death was the head and neck injuries suffered by him combined with acute alcohol intoxication. Dr Charlwood said that the head and neck injuries in isolation could account for his death. Dr Charlwood expressed the opinion that, while alcohol intoxication contributed to his death, it was not the sole reason for his death.
Dr Charlwood expressed the opinion that lack of oxygen was the immediate cause of Mr Fitzsimmons’ death. Dr Charlwood expressed the opinion that brain swelling and trauma to the brain as a result of his head injuries would have caused depression of the respiratory centre; the neck injuries and hyoid bone fracture would have hindered his ability to breathe; the aspirational blood into his airways would have further promoted hypoxaemia and a reduction in his breathing mechanism; and any one of these three mechanisms alone was capable of causing his death through lack of oxygen. Dr Charlwood expressed the opinion that alcohol intoxication would have exacerbated his respiratory depression and apnoea.

In cross examination, Dr Charlwood accepted that alcoholics may have lowered magnesium levels, which may make them more susceptible to head injury. Dr Charlwood gave evidence that some studies have shown that persons who suffer head injuries are more likely to suffer increased morbidity and mortality if they are intoxicated, such that alcohol intoxication is capable of predisposing the brain to a worse outcome as the result of head trauma. Dr Charlwood accepted that a pathologist cannot differentiate between the contribution that alcohol has to the brain injury as compared to the contribution by the trauma such that it is not possible to specify a percentage of the contribution of each: they are working in tandem. Dr Charlwood accepted that she could not say that, if Mr Fitzsimmons had had no alcohol, his head injuries would have led to death. Dr Charlwood reiterated that she considered that both the trauma and the alcohol consumption were contributory to Mr Fitzsimmons’ death. Dr Charlwood accepted that she could not say which contributed more than the other. When it was put to her that she could not exclude the possibility that alcohol may have been the sole contributor to the death, Dr Charlwood disagreed and said that she would not consider the alcohol to be the sole reason for death. Dr Charlwood accepted that she could not exclude the possibility that, absent alcohol, Mr Fitzsimmons may have survived.
Both Professor White and Dr Charlwood gave evidence that the concentration of alcohol that might cause death in an alcohol-naive individual may well not cause death in an alcohol-tolerant individual.
I am satisfied beyond reasonable doubt that the head and neck injuries inflicted on Mr Fitzsimmons by the accused were a substantial cause of death. It may be that, if Mr Fitzsimmons had not had the blood alcohol level that he had, he would not have died. However, I am satisfied beyond reasonable doubt not only that he would not have died had the injuries not been inflicted but also that those injuries were a substantial cause of his death. In this respect, I am free to accept or reject the opinions expressed by Dr Charlwood. I accept those opinions. Dr Charlwood was a careful and impressive witness and the opinions she expressed accord with common sense. Dr Charlwood consistently expressed the opinion that, while alcohol was a contributory cause, the head and neck trauma suffered by Mr Fitzsimmons was a substantial cause of his death.
Voluntariness
It is not in issue that, whatever blows were delivered by the accused to Mr Fitzsimmons, the acts of the accused were voluntary and deliberate. In any event, I am satisfied of this beyond reasonable doubt. It follows from my acceptance of Mr Corbett’s evidence. In addition, the accused admitted during the interview with the police that the blows he did deliver to Mr Fitzsimmons were deliberate. The accused gave an account to the police that he was acting voluntarily throughout the incident.
Intent to kill or cause grievous bodily harm
The prosecution case is that the accused inflicted the blows on Mr Fitzsimmons with the intention of causing grievous bodily harm.
Alcohol and drugs
I remind myself that I must exercise particular caution in inferring intention on the part of a person who is intoxicated.
Professor White is a Professor of Pharmacology and the Head of the School of Pharmacy and Medical Sciences at the University of South Australia with 20 years’ experience in the treatment of persons with drug and alcohol problems. Professor White gave evidence that alcohol is essentially a sedative, although it can initially act as a mild stimulant at low concentrations. Alcohol can have a disinhibitory effect, including disinhibiting a person who would otherwise be inhibited from exhibiting aggression. Alcohol can lead to relatively sudden mood changes. Alcohol can lead to childlike behaviour in the sense that an intoxicated person might engage in behaviour without considering the consequences of his or her actions in the way the same person would do when sober.
Professor White gave evidence that diazepam is a sedative prescribed principally for treatment of anxiety and to some extent for insomnia. A normal therapeutic dose is between two and ten mg daily. Diazepam breaks down into nordiazepam and other compounds over time. Diazepam and nordiazepam can impair cognitive function and cause lightheadedness and/or confusion and in extreme situations somewhat irrational thinking.
Professor White gave evidence that THC is the main active compound in cannabis and it breaks down into carboxy-THC and other compounds over time. THC concentrations peak within about 15 minutes and decrease rapidly and then more slowly over a total period of about four hours. THC tends to cause euphoria or elevated mood initially, lasting only for a period of minutes, and then sedation or relaxation.
Professor White gave evidence that, to the extent that they each have a sedative effect, alcohol, diazepam and cannabis can produce a cumulative effect.
Mr Corbett gave evidence that the accused was drinking alcohol with Mr Fitzsimmons and himself while they were together over a period of several hours. Mr Isaacson and Mr Taylor gave evidence that the accused was drinking alcohol at the Gladstone Street address. Mr Isaacson said that the accused was drinking port and Mr Taylor said that he was drinking port and beer. Mr Isaacson said that he was slurring his words a bit but otherwise he was okay and Mr Taylor said that he was not acting in a drunken manner in any way, shape or form. On the other hand, during his interview by the police, the accused said that he did not drink alcohol when visiting friends that day (implicitly at the Gladstone Street address) but he did drink two beers at the hotel. He said that when he met up with Mr Corbett and Mr Fitzsimmons he had only previously drunk two beers that day. The accused said that by the time of the incident he was drunk.
The BP service station surveillance recordings show the accused walking normally without apparent alcohol-caused impairment. Senior Constable Humphris and Constable Georgiou gave evidence that they had a coherent discussion with him and he was not slurring his words. It is not possible to be precise how long this was after the incident, but it appears to have been in the order of one to two hours afterwards.
At about 9.00 pm on 12 October 2014, a blood sample was taken from the accused and subsequently analysed for alcohol concentration. No alcohol was found. However, Professor White gave evidence that, assuming normal rates of elimination of alcohol over time, if the accused had had a blood alcohol reading of 0.33 per cent or even 0.44 per cent at 11.00 pm the previous evening and drunk no further alcohol, it would have been consistent with a nil alcohol reading at 9.00 pm on 12 October.
The accused had a diazepam concentration of approximately 0.2 milligrams and nordiazepam concentration of approximately 0.1 milligrams per litre. Professor White gave evidence that this was consistent with taking diazepam in therapeutic quantities but he could not say without knowing whether it was a single dose or multiple doses whether it was taken before or after 11.00 pm on 11 October 2014.
The accused had a THC concentration of 3 micrograms and carboxy-THC concentration of 74 micrograms per litre. The accused told police during the interview that he had smoked cannabis on the balcony at room 6 the previous day.
Lies as consciousness of guilt
The Director contends that the accused told a series of lies during the interview with the police on 12 October 2014. The Director contends that these lies included the account that Mr Fitzsimmons attacked the accused with a pair of scissors; the account that the accused did not have any altercation with Mr Corbett but rather that Mr Corbett and Mr Fitzsimmons had been fighting earlier in the day (implicitly accounting for the injuries to Mr Corbett’s face); and the account of the incident whereby the accused only punched and kicked Mr Fitzsimmons once.
I am satisfied beyond reasonable doubt that each of these statements by the accused during the interview was false and that they comprised lies in that he knew that they were false. However, I am not satisfied that they were told out of a consciousness of guilt of murder, ie because he knew that the truth of the matter about which he lied would implicate him in the offence of murder. On my findings, he knew that he was guilty of a serious criminal offence and there is at the very least a reasonable possibility that it was this knowledge that led him to lie rather than any knowledge that he had killed Mr Fitzsimmons with intent to cause grievous bodily harm and was guilty of murder.
Findings
I am not satisfied beyond reasonable doubt that the accused attacked Mr Fitzsimmons with the intention of causing grievous bodily harm.
First, there was no evident cause for the accused to decide to cause grievous bodily harm to Mr Fitzsimmons. Where there is evidence of a specific cause or motive for the infliction of such harm, it can be easier to draw the inference that an accused formed such an intention.
Secondly, the jumping up and down on Mr Fitzsimmons was a relatively coarse and imprecise action as opposed to a series of precisely aimed blows to a specific part of Mr Fitzsimmons’ anatomy. Where there is evidence of precisely aimed blows, it can be easier to draw the inference that an accused formed an intention to cause grievous bodily harm if that is the natural and probable consequence of the delivery of such blows. Where the action is less precise, it is more difficult to draw such an inference.
Thirdly, I find that the accused was intoxicated at the time. This does not entail that he was uncoordinated or displaying gross symptoms of intoxication but it does entail that his perceptions, judgment and mental state are likely to have been adversely impaired to a significant degree. When the delivery of blows has the natural and probable consequence of causing grievous bodily harm, it can be easier to draw an inference that the accused intended to cause such harm if the accused is sober rather than intoxicated.
Considering these three matters in combination, I am left with a reasonable doubt whether the accused intended to inflict grievous bodily harm upon Mr Fitzsimmons. I acknowledge that the accused jumped up and down on Mr Fitzsimmons multiple times and resumed doing so after an interval of sitting on the chair. If the accused had been sober, this would have led me to infer the accused acted with the requisite intent. However, the fact remains that his state of mind and perceptions were impaired by the combined effect of alcohol and drugs. The prosecution has failed to prove that the accused is guilty of murder.
Manslaughter
The first two elements of manslaughter, namely an act or acts of the accused caused the death of the deceased and the act or acts were voluntary (ie deliberate) are the same as for murder. For the reasons given above, I am satisfied that the prosecution has proved these two elements beyond reasonable doubt.
Unlawful acts
The third element of manslaughter is that the act or acts of the accused that caused the death of the deceased were unlawful. This element is not in contention.
I am satisfied in any event beyond reasonable doubt that the accused assaulted Mr Fitzsimmons by stomping on, kicking and jumping on Mr Fitzsimmons.
I am satisfied beyond reasonable doubt that the accused did not genuinely believe that the blows inflicted on Mr Fitzsimmons were necessary and reasonable for self-defence. On my findings, no occasion for self-defence arose. Mr Fitzsimmons did not attack the accused in any way.
Dangerous acts
The fourth element of manslaughter is that the act or acts of the accused that caused the death of the deceased were dangerous, ie 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 harm. This element is not in contention.
I am satisfied in any event beyond reasonable doubt that a reasonable person in the position of the accused would have realised that his or her actions would expose Mr Fitzsimmons to an appreciable risk of serious harm. While I have found that the accused was intoxicated, he was on my finding not so intoxicated that he did not know what he was doing. While I am not satisfied beyond reasonable doubt whether the accused intended to inflict grievous bodily harm upon Mr Fitzsimmons, it is a much lower threshold that he realised that his actions would expose Mr Fitzsimmons to an appreciable risk of serious harm. I am satisfied beyond reasonable doubt both that the accused subjectively had this appreciation and that a reasonable person in his position (including with his level of intoxication) would have had this appreciation.
Conclusion
I find the accused not guilty of murder. I find the accused guilty of manslaughter.