R v Foster No. Sccrm-99-288

[2001] SASC 20

R v FOSTER
[2001] SASC 20

Criminal Ruling

GRAY J

The Charge

1      The accused is charged on Information as follows:

“David Gregory Foster

is charged with the following Offence

Statement of Offence

Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

David Gregory Foster on the 15th June, 1999 at Angle Park, murdered Panayiotis Nicholas Manikas.”

2      Panayiotis Nicholas Manikas is referred to as “Peter” in these reasons.

3      The accused pleaded not guilty. The accused elected pursuant to the Juries Act 1927 (SA), to be tried by judge alone. I am satisfied that before making the election, the accused sought and received advice from a legal practitioner.[1]

[1]        Juries Act 1927 (SA) Section 7 (1) "Subject to this section, where, in a criminal trial before the Supreme Court or the District Court - (a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and (b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner, the trial will proceed without a jury."

4       At all times I have borne in mind that the accused does not have to prove his innocence.  He is presumed not guilty until proven guilty.  It is for the prosecution to prove guilt beyond reasonable doubt.  When I state in these reasons that I am “satisfied”, “find”, “accept” or “conclude” it means I have done so beyond reasonable doubt. 

5      I have examined and assessed the credibility and reliability of all witnesses.  By credibility I refer to the extent to which the evidence of a witness can be accepted as being truthful in the sense of honest evidence.  I use reliability in the sense of accuracy.  An honest witness may give unreliable evidence in the sense that it is inaccurate or mistaken.

6      It was common ground that this was not a case in which the law requires the evidence of any witness to be corroborated.[2]  However I have considered whether independent support exists for the evidence of a number of witnesses.  I address this consideration later.

[2] Section 12A Evidence Act 1929 (SA) dealing with children provides -

"There is no rule of law or practice obliging a judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if the child gave sworn evidence."

7      Throughout these reasons I have used footnotes to provide cross-references to related parts of the reasons.  These cross references are not intended to be exhaustive.

Crown Case

A Short Description

8      The accused and Tammy Marie Manikas, Peter’s mother, commenced a relationship in early April 1999.  This relationship continued until 15 June 1999.  The accused drove to Mrs Manikas’s home late on 14 June 1999 and stayed overnight.  He was at her home throughout 15 June 1999 until Peter was taken to hospital.

9      At or about 2:45 pm on 15 June 1999 Mrs Manikas left her home at Angle Park to collect her son John, aged six, (almost seven) from school.  She left her sons Alex, aged four and Peter, aged three, in the care of the accused at her home. Upon returning about one hour later, the accused called out that she should

“speak to Alex about something he had done to Peter”.

Shortly after, he added that Peter “wasn’t that good”.  Mrs Manikas found the accused in Peter’s room.  Peter was in bed.  He was not breathing and appeared lifeless. 

10     The Crown submitted that the accused inflicted a blow which caused Peter’s death.  He did so whilst Mrs Manikas was collecting John from school. He did so with the requisite state of mind for murder.  The Crown case is not that he necessarily intended to kill Peter but that he inflicted the blow intending to cause grievous bodily harm.  Alternatively, he inflicted the blow recklessly, knowing that it was probable that death or grievous bodily harm would result.  It is the Crown case that if the requisite intent for murder is not proved, then the  assault was an unlawful and dangerous act and the accused is guilty of manslaughter.

11     The Crown's case is that death was not accidental.  The blow was not inflicted by Alex.  The only other person apart from the accused who could have inflicted the blow was Mrs Manikas.  She did not do so.

12     A post mortem examination disclosed that Peter had died from blood loss.  A blow to the abdomen had torn his liver.  He died five to thirty minutes after the injury was inflicted.

13     Peter had been subjected to child abuse.  He had many non-fatal injuries including extensive bruising.  He had sustained lacerations between his ears and scalp, bruising to his brain, bleeding beneath his scalp and damage to the nerve fibres in his brain.  These injuries were consistent with violent incidents occurring during the last weeks of his life.

14     The Crown case is based on circumstantial evidence.  In assessing that evidence I have applied the principles enunciated in Shepherd v The Queen[3]:

The Defence Case 

A Short Description

[3] (1990) 170 CLR 573

15     The accused denies that he is guilty of murder or manslaughter.  He denies inflicting the fatal blow or causing any of the other injuries to Peter.  He said in evidence:

“I have never punched Peter, never kicked him, never hit him”.

16     A relationship between the accused and Mrs Manikas developed in late April or early May 1999.  From that time until late May 1999, they maintained regular contact.  Their relationship was purely physical – it was a sexual relationship.  It was not an emotional relationship.  The accused visited Mrs Manikas’s home several times a week for sex.  She stayed overnight at his home with her children about twice a week and visited at other times.  He looked after her children in her absence.

17     On 13 May 1999, Family and Youth Services (“FAYS”) began an investigation into the alleged abuse of three of the Manikas children.  The accused was named as the possible abuser.  He learned of these allegations on 27 May 1999.  From that point, his relationship with Mrs Manikas and her children changed dramatically.  He did not see any of the children between 27 May 1999 and 15 June 1999.[4]

[4] See [348-349]

18      He saw little of Mrs Manikas after 27 May 1999.  However he agreed that on occasions, she visited his home and he called to see her in the early hours of the morning.  In the week before Peter’s death, Mrs Manikas did not stay overnight at his home except possibly on 10 June 1999.  He was ill that night and collapsed in her presence.

19     The accused spent the night of 14 June 1999 at his home and remained there until the next morning. Later that day, he drove to Mr Southgate’s for the purpose of buying amphetamines.  Whilst there, he "snorted" a line of speed.  He then drove to Mrs Manikas’s home.  She had phoned the previous evening and asked him to look after her children.  Reluctantly, he had agreed.

20     He arrived at Mrs Manikas’s home later than had been arranged.  She left to collect John from school.  He went straight into the main bedroom and remained there. He did not see Peter.  About ten minutes after she had left, he heard Peter making a distinctive noise.  He thought that Alex and Peter may have been fighting or about to fight.   He “screamed” at them to go to their rooms and added that they should go to the toilet.  He heard the toilet flush.  Later Alex came to speak with him.  He stopped him from saying anything as he did not want to get involved in any further allegations.

21     When Mrs Manikas arrived home, she entered the main bedroom.  The accused said:

“I think you might want to check Peter ... I think they’ve [referring to Peter and Alex] been at it again”.

22     She then went quickly to Peter’s bedroom.  She called out.  The accused then went into the bedroom and saw Peter for the first time that day.

23     In opening, defence counsel said:

"It would, therefore, appear that, based upon a combination of that evidence and the medical evidence, which Mr Millsteed has outlined, Peter either suffered the fatal blow just before Mrs Manikas left to go to the school or at some time while she was away at the school, or the third alternative time is in a period of time when she arrived back from the school, whatever time that was, until the time the decision to take the child to the Queen Elizabeth Hospital was made."

24     It was the accused's case that he did not inflict the fatal blow whilst Mrs Manikas was away from her home.  It was further said:

“Insofar as there is any suggestion that Alex, the 4-year-old, inflicted these injuries, that is not the defence case and will not be advanced by the accused.  So it follows that when the accused - if your Honour finds that could be a fact that it was not Alex - says it was not him, then it really leaves only one other contender as the prosecution have already stated to you.”

As the trial proceeded, it was conceded that the injury was not accidental. 

25     It was the defence case that Mrs Manikas was directly implicated as the perpetrator.  Defence counsel said:

“... this case is about which of two people inflicted the fatal blow on Peter Manikas.  It really only can be one of two people.”

However, defence counsel correctly emphasised that the Crown had to exclude beyond reasonable doubt that Mrs Manikas did not inflict the fatal blow.[5]

[5] See [481]

26      The accused directly implicated Mrs Manikas in the ongoing abuse of the Manikas children.  He claimed that she smacked and used a belt on Peter and was violent towards her children.  She used a kettle cord to hit them.  She smacked them, struck their faces and “slammed” Alex between a door and the toilet wall.

Emergency Treatment at the QEH

27     Peter arrived at the Queen Elizabeth Hospital (“QEH”) at 4:00 pm on 15 June 1999. 

28     On initial examination, he was not breathing and in cardio-pulmonary arrest.  Dr Johanson, an emergency physician, observed

"That he was absolutely covered in bruises, and that he was blue and very, very pale." 

He showed no signs of life.  It was Dr Johanson’s opinion that Peter was dead on arrival.

29     Mr Dunn, a Fellow of the Australasian College of Emergency Medicine, was the Director of Emergency Medicine.  He examined Peter a few minutes after he was taken to the resuscitation room.  He observed

“significant bruising around the face, and also on the chest”. 

Mr Dunn did not feel any pulse.  At 4:17 pm, resuscitation attempts ceased and life was pronounced extinct.

30     Mr Dunn noted the absence of electrical activity in the heart.  There was one fleeting moment of activity which occurred as a result of resuscitation drugs.  However, it was transient and did not persist.

31     Mr Dunn expressed the view

“... that death had occurred probably at least a quarter of an hour, if not longer, prior to arrival ...”.

He added,

“It is hard to be exact.  I would estimate some time between half an hour to 15 minutes prior to arrival”.

Dr Byard deferred to this opinion.

32     I accept the evidence of Dr Johanson and Mr Dunn.  They were credible and reliable witnesses.  I find their evidence accurate.  I am satisfied that Peter died before 3:45 pm on 15 June 1999.

Autopsy

33     Dr Byard conducted the autopsy.  His written report with attached specialist neuro-pathological assessment and radiological reports was tendered.  Photographs taken at autopsy were also tendered.

34     Dr Byard is well qualified as an expert witness.  He holds the position of specialist forensic pathologist at the Forensic Science Centre of South Australia. He has extensive experience in conducting autopsies on children.  He holds the position of clinical associate professor at the University of Adelaide in the Departments of Pathology and Paediatrics.  He holds three fellowships in pathology and is a Fellow of the Royal College of Physicians and Surgeons in Canada.

35     It was accepted by defence counsel that Dr Byard is an expert in the area of pathology and paediatrics.  The opinions he expressed were within his expertise.  I accept and act on the opinions of Dr Byard.

36     The Crown also led expert evidence from Professor Cass.  He holds the Chair of Paediatric Surgery and is the Director of Trauma at the Royal Alexander Hospital for Children in Westmead, Sydney.  He is the chairman of the New South Wales Trauma Committee of the Royal Australasian College of Surgeons.   Professor Cass has practised as a consultant paediatric surgeon for 16 years.

37     Professor Cass reviewed Dr Byard’s report and the autopsy photographs.  On matters relating to pathology, he deferred to Dr Byard's opinions.  I accept and act on the opinions of Professor Cass.

38     On external examination, Dr Byard noted the body to be that of a well nourished white male of around three years.  Peter weighed 14 kilos and was 84cm in height.  Dr Byard noted the presence of rigor mortis in the legs, arms and jaw.  He observed the body to be pale with very mild supine dependant lividity present over the back. 

39     Dr Byard observed multiple bruises over the face, scalp, neck, chest, back, penis, buttocks and limbs.  In his report he described these injuries as follows:

“Face

There was an irregular area of blue bruising on the forehead to the right of the midline measuring approximately 40 mm in maximum dimensions.  There were bilateral ‘black eyes’ with blue/green bruising around both eyes, being more prominent on the left than the right.  There were also smaller red bruises measuring less than 5 mm in diameter over the right and left cheek bones.  No facial petechiae were present.

Scalp

There was an irregular blue bruise, measuring approximately 30 mm in diameter, over the external occipital protuberance (posterior aspect of scalp in the midline).

Neck and jaw

There were a number of irregular circular reddened bruises under the jawline on both the right and the left sides in an area covering 100 mm in length.  The largest bruise was over the left lateral aspect of the jaw and measured 20 x 10 mm.

Ears

Between the upper part of the pinna of each ear and the scalp there were dried abrasions/lacerations which measured 15 mm on the right and 6 mm on the left.  There was also an area of blue bruising on the right side which measured 15 x 10 mm.

Anterior chest wall

There were multiple brown circular bruises over the anterior chest wall, the largest of which measured 10 mm in diameter.  These extended to both the right and left flanks.  On the left anterior flank there was an area of circular irregular brown bruising measuring 50 x 40mm.

Back

There were multiple irregular areas of brown/green bruising over the back covering a total area of 220 x 180 mm.  The largest group measured approximately 50 x 40 mm and was present over the right side of the lumbar spine.

Abdomen

There was a green/brown bruise measuring 60 x 35 mm on the medial aspect of the left anterior superior iliac spine in the lower left part of the abdomen.  There was a single brown bruise, measuring 5 mm in diameter, overlying the right anterior spine.  There was also an area of brown bruising, measuring 20 x 30 mm, beneath and medial to this in the right lower quadrant.

Right lower flank

There was an irregular area of brown bruising on the right lower flank extending to the upper part of the lateral thigh measuring 90 x 30 mm.

Buttocks

There was an area of green/brown bruising over both buttocks which had a horizontal linear configuration.  On the lower buttocks there were reddened thin linear bruises which on the lower right buttock formed two parallel lines approximately 20 mm apart.  The total area covered by this bruising was 150 x 100 mm.  There was sparing of the deep intergluteal area. No abnormality of the anus was seen.  Left lateral buttock: There was an area of irregular circular brown/green bruises measuring 70 x 70mm.

Penis

There was an area of circular brown bruising at the base of the penis on the left side measuring 15 x 5 mm.

Left knee

There was an irregular area of brown/green bruising measuring 50 x 30 mm composed of circular bruises the largest of which measured 20 x 10 mm.

Left upper arm

There was a group of brown circular bruises on the lateral aspect of the left upper arm the largest of which measured 20 x 25 mm.

Limbs

Scattered brown/blue bruises were present over the remainder of the upper and lower limbs.”

Dr Byard observed internal trauma:-

“There was a 70 mm laceration of the inferior aspect of the liver extending from the point of attachment of the ligamentum teres superiorly causing separation of the left and right lobes.  The disruption occupied a little over 50% of the junction of the right and left lobes.  This was associated with 450 mls of clotted and fluid blood within the peritoneal cavity.

Extensive subgaleal (beneath the scalp) haemorrhage was present bilaterally, more towards the front than the posterior aspect of the scalp.

An organising subdural haematoma was present on the left hand side lining the meninges covering the middle and anterior cranial fossae.  It measured approximately 10 mm in maximum thickness and was xanthochromic (discoloured yellow).

There was a small amount of recent bruising of the mesentery of the small intestine and over the anterior aspect of the duodenojejunal flexure.”

40     A small amount of bruising was present on the duodenum and on the mesentery.

Further examination of the liver revealed:

“Liver       (Weight 492 grams; N = 418 grams.)  The liver was normally formed.  There was a large laceration extending from the junction of the ligamentum teres along the inferior aspect of the liver resulting in separation of the left and the right lobes. The laceration extended completely through the liver to the capsule in the upper parts.  The capsule was split on the inferior surface.  The maximum length of the laceration was 70 mm.  The liver parenchyma away from the laceration appeared normal.”

Examination of the scalp revealed:

“Extensive subgaleal (beneath the scalp) haemorrhage was present bilaterally, more towards the front than the posterior aspect of the scalp.

An organising subdural haematoma was present on the left hand side lining the mengines covering the middle and anterior cranial fossae.  It measured approximately 10 mm in maximum thickness and was xanthochromic (discoloured yellow).”

41     Dr Byard noted the cause of death as “blunt abdominal trauma”.  The anatomical findings were:

“Blunt trauma to abdomen with:
Laceration of liver.
Haemoperitoneum.

Bruising of root of mesentery and anterior duodenojejunal flexure.

Acute on chronic subdural haematoma.

Multifocal axonal injury of different ages.

Multiple cutaneous bruises of head, chest, back, buttocks and limbs.”

He then expressed the following opinions:

“Death is attributed to haemorrhage into the abdominal cavity following blunt trauma to the liver.  Although there was no evidence of recent bruising of the skin and subcutaneous tissues over the liver,  it is not uncommon for a significant injury to be sustained in children with minimal external findings due to the soft yielding nature of the anterior abdominal wall.  The laceration to the liver was extensive and would require considerable force.  It is of a type that may be seen in motor vehicle accidents. It is not the type of injury seen with normal playing, or which could occur from fighting with a child of a similar age.  This type of injury to the liver could be caused by a fist, kick or knee to the abdomen.  Blows of this type could also have caused bruising to the nearby anterior part of the duodenojejunal flexure and the mesenteric root.

Given the degree of liver laceration and the amount of blood lost, symptoms would have occurred immediately following the episode of trauma.  The deceased would have appeared pale and listless and would probably have been crying or vomiting.  He would have experienced dizziness on standing and later would have suffered collapse with unconsciousness.

Death most likely occurred quite rapidly (ie within half an hour of the event), although rare cases of quite serious liver trauma in childhood have survived for more than one hour.

It is difficult to determine the time of death from the core temperature, given that the body had been moved from the scene of death and placed in a number of different environments with different temperatures.  The cooling of the body (32.5║C) with the presence of rigor mortis indicates that death occurred several hours before my initial examination.

The subdural haematoma, although quite marked, was not causing any displacement of the underlying brain.  Histologic examination indicated that it had been there for at least several weeks.  Causes of subdural haematoma in young children include direct trauma or whiplash shaking injury syndrome.  The presence of bruises to the head would support direct trauma as a mechanism of the haemorrhage.

The presence of multifocal axonal injury of different ages indicates that there had been a number of episodes of head trauma resulting in damage to nerve fibres in the brain.

The presence of multiple bruises with different colours also indicated that previous episodes of trauma had occurred.  The amount of bruising was far more than occurs in a 3 year old with normal ‘wear and tear’.  The pattern of bruising over the buttocks suggested that the deceased had been hit with some type of linear object, and was in keeping in places with a belt injury.

No organic disease was found which could have contributed to death and, apart from the trauma, the deceased was a healthy young boy.

The immediate cause of death in this case was laceration of the liver with internal bleeding.  The presence of bruises of different ages and brain damage of different ages indicated that there had been a number of separate assaults in the past.  These dated back to at least several weeks before death.”

42     The damage to the liver was occasioned by its impact with the vertebral column.  Dr Byard said:

“The problem with a punch, or an object hitting the front of the abdomen, is that all of the internal organs underneath are also impacted, and they compress up against the spinal column; the spine stays rigid and you have organs that are in a fixed position, such as the liver, the duodenum and the mesentery, which can’t get out of the way, so they are caught between the impacting object and the vertebral column, so they split, or bruise.”

43     I am satisfied that the observations of Dr Byard are accurate.

44     I am satisfied that the cause of Peter’s death was a blow to his abdomen.  Punching, kneeing, kicking or striking him with an object could have been a cause.  The bruising to the duodenum and the mesentery may have been occasioned by the same force.  Considerable force would have been required to inflict the fatal injuries.  The absence of bruising to the abdomen is not unusual.

45     I am satisfied that a four year old would not have had the strength to inflict the fatal injury.  The severity of the injury was such that it could not have been occasioned by a fall from or onto furniture.

Time of Death

46     Dr Byard’s opinion was that death occurred between two and four hours prior to his examination of the body at 7:10 pm.  He agreed in cross-examination that it could have occurred as early as five hours prior to his examination.  He emphasised the existence of uncertainties and was unable to provide a more precise estimate.  Professor Cass was not prepared to express an opinion about the time of death.  I find that death occurred between 2:10 pm and 3:45 pm on 15 June 1999.[6]

[6] 3:45 pm as a result of Dr Dunn's opinion referred to in [31]

Time between Fatal Blow and Death

47     Dr Byard estimated that death would have occurred five to thirty minutes after the blow was struck.  The veins in Peter’s liver were damaged.  However, the pulverised nature of the organ rendered it impossible to discern exactly which veins and to what extent.  Accordingly, the precise rate of blood loss could not be calculated.  Dr Byard was closely pressed about the accuracy of his estimate but remained firm in his view of between five and thirty minutes. I accept Dr Byard’s evidence.  I am satisfied that his conclusion is soundly based.  Professor Cass deferred to Dr Byard’s opinion.

Symptoms following Injury

48     Peter’s symptoms would have been immediate and profound, including:

-     being winded

-     difficulty in standing

-     suffering considerable discomfort

-     experiencing pain exacerbated by haemorrhaging into the abdominal cavity

-     extreme fear

-     whimpering and crying

-     vomiting

-     involuntary movement of bladder and bowel.

He would have become progressively shocked, pale and sweaty.  He would have lapsed into unconsciousness within five or ten minutes.

49     Dr Byard thought it unlikely that Peter would have had the ability to walk to the toilet and urinate.  He also considered it unlikely that he could have climbed into bed and pulled his quilt around himself.  Professor Cass was generally supportive of these views, although he thought Peter may have been able to walk to the toilet without assistance. Both experts considered that an adult could not have been oblivious to Peter’s obvious distress.

50     I am satisfied that Peter suffered immediate and profound symptoms.  I am in no doubt that he was in obvious distress and any adult in Mrs Manikas’ house at the time would have been aware of that distress.

Age and Appearance of Injuries

51     Dr Byard indicated the photographs which best represented his observations of Peter.  However he cautioned about their use when assessing the appearance and age of the bruising.

52     The substance of Dr Byard’s opinion about the age of Peter's injuries is set out in the table below.  Professor Cass deferred to this opinion.

53     I accept and act on Dr Byard’s opinion. 

Type of injury	Age of injury
Internal abdominal injuries	15 June 1999
Subdural haematoma on the brain  and other head injuries	several weeks prior to death
Bruising to the eyes	5-7 days or older may be linked with forehead injury
Bruising to the forehead	more recent than 5-7 days
Damage to scalp	recent bruise from zero to 5 days
Neck and jaw injuries	recent from zero to 5 days
Injuries to the ears	more than 24 hours old but less than 3-4 days old
Bruising behind the right ear	recent from zero to 5 days old
Bruising to the chest	10-14 days
Bruising to the back	5-14 days
Bruising to the buttocks	some areas more recent, some older 5-14 days
Bruising to the abdomen	5-14 days
Bruising to the lower flank	10-14 days
Bruising to the upper arm	10-14 days
Bruising to the penis	10-14 days
Bruising to the left knee	5-14 days
Numerous small bruises on the limbs	bruises range from just before death to 14 days, or even longer.

54     As observed, Peter's injuries were widespread and extensive.  It was common ground that he had been the subject of child abuse.  I find that the majority of his injuries were the result of serious assaults.  It is possible that some minor bruising may have been "normal wear and tear".  Minor injuries to Peter’s nostrils and lips may have been caused by repeated resuscitation attempts.

The Manikas Family

Peter

55     Peter was born on 12 May 1996.  He was aged three years one month and three days at the time of his death.  He was well nourished.  He showed no signs of disease.

56     Peter was the fifth child of Mrs Manikas and her husband Kon Manikas.  They married in 1989 and separated finally in 1998.  Following  the separation, Mr Manikas lived with his parents.  Mrs Manikas moved into a housing trust property at 26 Blenheim Street Angle Park in about March 1999.  She was the primary carer of Peter.  Mr Manikas was entitled to access but he had contact with the children whenever he wished.

57     The other Manikas children are: Vlasios born 4 July 1989; Theodore born 31 October 1990; John born 23 June 1992; Alex born 5 March 1995 and Max born 3 September 1999.  At 15 June 1999, Mrs Manikas was six months pregnant with Max.

Mrs Manikas

58     Mrs Manikas is aged twenty nine years.  I was told little of her background, apart from the information referred to in the foregoing paragraphs.

Alex

59     At the time of Peter’s death Alex was 102 cm in height and 15.75 kilos in weight.

60     In opening, the Crown said:

“The Crown will be inviting Your Honour to find that Alex’s statements that he was responsible for the injury to Peter were clearly false, and that he must have been prevailed upon by the accused to give an account which concealed the accused’s responsibility of the crime, and, is as I have said, the medical evidence will establish that the four year old did not have the physical capacity to cause this very major tear to the liver ...”

61     In opening, defence counsel said:

“Insofar as there is, any suggestion that Alex, the 4-year-old, inflicted these injuries, that is not the defence case and will not be advanced by the accused.”

62     I am satisfied that Alex was not responsible for Peter’s death.

63     I was informed by the Crown that due to his age, Alex was not considered capable of providing reliable evidence. I was also provided with a psychological report by consent.  This report addressed the issue of whether Alex could give reliable evidence and provided support for the decision taken by the prosecutor. I was referred to R v Apostilides[7].  Defence counsel submitted  that the decision of the Crown was open and reasonable in the circumstances.

John and Alex

[7] (1984) 154 CLR 563

64     John and Alex were examined by Dr Jane Edwards on 18 June 1999.[8]

[8] The written report of Dr Jane Edwards was received by consent.

.................. "Examination of Alex revealed multiple bruises to Alex's face, [R] arm, [R] leg, lower back and buttocks.  Specifically -

Face

- Linear abrasion surrounded by bruise over [R] cheek
                   - Faint bruise [R] temple
                   - Circular bruise under [R] jaw.

Right arm

.................. - 6 Discrete bruises over lateral aspect extending from midway between his shoulder and elbow to midway between his elbow and wrist

Right leg

- Circular bruise over lateral aspect of the knee
                 - 2 Circular bruises over lateral aspect of midcalf
                 - Small abrasion over lateral aspect of ankle

Back

- Circular bruise [R] iliac crest
                  - Circular bruise [L] lower back
                  -  Three faint bruises over [L] buttock

No bony tenderness or injury was evident.

...

.................. Alex had multiple bruises, the distribution of which and their location over soft tissue, is not that typically seen with accidental childhood injury.  The bruising was not associated with tenderness or swelling which indicates they were greater than forty eight hours of age.  An inflicted mechanism of injury must be seriously considered."

65     The examination of John was "normal".  There was no evidence of injury.

The Accused

66     The accused is aged thirty nine years. He is 5 foot 11 inches (180 cm) in height.  At the time of Peter’s death, he weighed between 13 and 15 stone (82.5 and 95 kilograms). 

67     The accused was the second youngest in a family of eight children.  His father died when he was a child.  He spent the early part of his life in South Australian country centres.  His family later moved to Adelaide, where he attended school.  He left High School after first year, aged thirteen.

68     The accused’s early employment was with the Scout Bottle Centre and later with Kelvinator.  He spent seven years working for Kelvinator and then worked in the building trade for his father-in-law.  He also worked with Murray Pest Control and later for the Adelaide Pest Control Company.   For a time, he was involved in hotel security work. He trained as a boxer but because of an eye injury, did not pursue a professional career.  He also engaged in kick boxing.  He gave evidence that:

“I did a lot of boxing and kick boxing when I was younger”.

69     The accused ceased working in 1996 after sustaining an injury at work.  He received WorkCover benefits.  He suffers migraine headaches.  Generally his sleeping habits are poor.

Drug Use

70     The accused’s drug use was relevant to a number of issues in the trial.  As a teenager and later when living with his de facto Ms Rice, the accused used amphetamines casually.  Six months after his back injury, he began regular usage.

71     The accused grew marijuana for sale and personal use. He also traded marijuana for amphetamines.  His drug use was extensive.  For the two months prior to Peter’s death, he injected himself four to five times each day. A gram of pure amphetamine lasted three to four days.  He paid between $50 and $200 a gram, depending on purity.  Later in these reasons I return to the effect of the accused’s drug use.[9]

[9] See [307-327]

72      Witnesses Mrs Manikas, Mr Manikas, Ms Rice, Ms McBride, Mr Clifford, Mr Hewish, Ms Hancock, Mr Southgate and Mrs Southgate had varying degrees of involvement with drugs.

Relationships

The Accused and Karen Foster

73     The accused married Karen Patricia Foster in 1985.  The marriage produced three children, Lauren, aged sixteen, David, aged twelve and Joshua, aged nine.  They separated in about 1992 and divorced in 2000.  Following their separation, they remained on reasonable terms.  The accused’s access to the children was a matter of agreement, usually taken Wednesday nights, alternate weekends and some school holidays.

74     The accused did not have an ideal relationship with his children.  From about June 1998, Lauren chose not to maintain contact with her father.  His relationship with his former wife has deteriorated since he was charged with this offence.  He no longer has access to his children.

The Accused and Ms Rice

75     Ms Rice was in a de facto relationship with the accused from 1993 to 1995.  Following this relationship, they remained good friends and maintained frequent contact.  This continued until at least the time of Peter’s death.

The Accused and Mrs Manikas

76     Mrs Manikas described her relationship with the accused as caring. She  treated the accused as a carer and provider, a person who gave her direction and comfort.  He made her life easier.  She adopted a housekeeping role.

77     The accused had a very different perception of the “relationship”.  He asserted that it was physical – sexual[10].  It was not an emotional relationship.  At the time of his relationship with Mrs Manikas, he used a service “dateline” with a view to meeting women for sex.  He also met other women for sexual relations, including “threesomes”.   The accused said:

[10] The accused repeatedly described the relationship in this way.

“A.... It was a physical one and explained it as sexual, yes.

Q.Purely a sexual relationship.

A...... No, we were friends.

Q.Did you have any emotional attachment to her.

A...... No, I didn’t.

Q.Do I take it that you didn’t have any emotional attachment to her children.

A. ... No, they were just kids.

Q.The basic nature of your relationship with this woman was simply to have sex with her.

A...... The majority of the time, yes.

Q.Were you seeing other women at the time.

A...... Yes, I was.

Q.How many.

A...... Only a couple.”

78     He claimed that it was his regular practice to go to Mrs Manikas’s house at about 1:00 am and stay a couple of hours for sex.  He later retracted this assertion and accepted that the arrangements were not as structured.

The Accused and Mr Manikas

79     There was little direct evidence about the relationship between the accused and Mr Manikas.  However, Mr Manikas saw his wife and children much less frequently after she began her relationship with the accused. The accused thought that Mr Manikas may have been responsible for the FAYS allegations. An abrupt meeting occurred between them some days after Peter’s birthday.  On learning of Peter’s death, Mr Manikas’s first reaction was to blame the accused. I infer that there was animosity between them.

The Accused and the Manikas Children

80     There is considerable dispute about the nature of this relationship.  Incidents involving the children are discussed later.

The Accused and Peter

81     The accused’s relationship with Peter was said to be violent and abusive.  The accused denied this claim.  Later, I discuss this relationship and a number of violent incidents between the accused and Peter.

The Accused, Ms McBride and Mr Clifford

82     The accused met Jenny-Lee McBride and her partner Geoffrey Graham Clifford in early 1999.  They became friends.  Ms McBride and Mr Clifford needed short term accommodation.  The accused offered to share his home.  They lived with their children at the accused’s home for about a month, leaving on 11 May 1999.  Visits and telephone contact continued after that time.

Mrs Manikas and Ms Rice

83     Ms Rice became aware of the accused’s relationship with Mrs Manikas shortly after it commenced.  She had met Mrs Manikas on twenty or thirty occasions.  Ms Rice recalls visiting the accused’s home at times when he had the responsibility for John, Alex and Peter in Mrs Manikas’s absence.  Ms Rice said that Mrs Manikas often ran errands for the accused  such as shopping, or “scoring speed” (obtaining drugs).

Mr and Mrs Manikas

84     Mr and Mrs Manikas were married in 1989.  They separated a number of times, first in 1994 for about six months.  The second separation was in 1996 for about two weeks and they separated finally in 1998.  Following this, the boys lived with Mrs Manikas.

85     Mr Manikas had access to the boys.  His usual practice was to collect them on Sunday mornings at about 8:00 am, take them to his mother’s place and then return them to Mrs Manikas that evening.  He also saw them at other times.

86     Despite their final separation, some form of “relationship” continued between Mr and Mrs Manikas.  Mr Manikas occasionally used to stay at his wife’s home overnight.  There is no dispute that he is Max's father.

87     After Mrs Manikas began her relationship with the accused, the frequency with which Mr Manikas saw the boys changed.  He did not see them nearly every night as he had when Mrs Manikas first moved to Angle Park.  In April 1999, Vlasios went to live with his father and Theodore followed on or about 19 May 1999.  Mr Manikas did not see John, Alex or Peter between 19 May 1999 and 15 June 1999.

88     Mr and Mrs Manikas’s “relationship” deteriorated.  Shortly before Peter’s death it was described as strained.  Mrs Manikas was considering taking out a restraining order.  She had problems with her husband over the phone.  They disagreed about “a lot of things”.  They “just didn't get along".

Mrs Manikas and the Manikas Children

89     There was considerable dispute about the nature of this relationship.  The accused’s case was that Mrs Manikas abused her children. This issue is discussed later.

Mrs Manikas and Peter

90     The accused’s case was that Mrs Manikas abused Peter.  Defence counsel said in his final submission:

“My client didn’t say he instructed me he saw her doing it.  My case has always been - and Mr Millsteed doesn’t quibble with this - that if it wasn’t the accused it had to be her.  That is our case.”

This issue is discussed later.

The Trial Process

91     The trial commenced on 6 November 2000 and concluded on 21 December 2000.  The Crown called the following witnesses:

Family

Tammy Marie Manikas                 Mother of Manikas children
Kon Manikas  Mrs Manikas’s husband
Vlasios Manikas  Eldest Manikas child
Theodore Manikas  Manikas child
John Manikas  Manikas child

Emergency Staff
Dr Suzanne Louise Johanson       Emergency physician at QEH
Dr David Jeremy Lincoln             Emergency Registrar at QEH
Mr Robert Dunn  Director of emergency medicine at QEH
Honni Lee Whitlock  Nurse at QEH

Expert Medical evidence

Dr Roger William Byard.............. Specialist Forensic Pathologist, SA Forensic Science Centre who conducted autopsy

Prof Daniel Thomas Cass    Professor of Paediatric Surgery at Royal Alexander Hospital for Children Westmead, Sydney

Dr Jason Mark White................... Professor of Addiction Studies at University of Adelaide

Police/Forensic Investigation
Scott Jonathon Duval  Detective Senior Constable
Noel Maxwell McLean                 Detective Senior Constable

Peter Anthony Batley................... Detective Sergeant - Scott Duval’s immediate supervisor

Stephen Paul Bamford                  Constable

Julie Patricia Halsall.................... Senior technical officer at the Forensic Science Centre

School Teachers

Wendy Olive Nicholson............... School teacher who taught John at Madison Park

Meryl Catherine Davidson           Principal of Kidman Park Primary School
David John Sinor  Vlasios’s school teacher
Mary Jean Gray  Vlasios’s school teacher
Pamela Joan Doroch  Theodore’s school teacher

FAYS
Samiko Toni Munro-Callisto       FAYS social worker   
Lynton John Goldsworthy           FAYS manager, Enfield

Neighbours
Phuong  Thuy Truong                  Neighbour of Mrs Manikas
Lorraine Jean Senior  Neighbour of Mrs Manikas

Other
Jenny-Lee McBride  Friend of accused
Geoffrey Graham Clifford           Friend of accused
Karen Patricia Foster                   Ex wife of the accused
Donna Marie Rice  Ex defacto partner of the accused, friend
Brenton Craig Hewish                  Defacto partner of Ms Rice

Tracey Anne Hancock................... Alleged supplier of amphetamines to Mrs Manikas and Kon

Documentary material was tendered including the following statements - 

Brian John Kay ........................ Police Forensic Services Branch - prepared plan of Manikas house at 26 Blenheim Street Angle Park

Cheryl Marie Brown        Police crime scene examiner - examined and photographed relevant locations

Kevin Darren Fechner .............. Senior Constable - photographed the accused

Peter Anthony Batley      Detective Sergeant Port Adelaide CIB -  assisted Duval at QEH

David Paparella  Port Adelaide CIB - chain of evidence

Lisa Matto  Commonwealth Bank Compliance

Supervisor - use of EFTPOS

Dr Rodger William Byard........... Pathologist - conducted autopsy on Peter - report

Arthur John Govett     Police sergeant - charged accused at Port Adelaide Police station and organised medical examination

David Rodwell Middleton............. Doctor who examined the accused in the Port Adelaide Cells and took samples

Dr Jane Edwards............................   Clinical Fellow in Paediatric Emergency

and Child Protection Services at Women’s and Children’s Hospital - examined Alex Manikas

Katrin Both..................................... Forensic Scientist conducted DNA examinations on seized items

Donald Noel Sims      Forensic Scientist analysed the accused’s blood

Dr Peter Charles Blumbergs........ Doctor - head of Neuropathology at IMVS - examined specimens of Peter’s brain

Scott Jonathon Duval   Detective Senior Constable - to supplement his evidence

Patrick John Emmett..................... Chief of staff of the Australian Broadcasting Corporation

Chris Willis....................................   News Director for Channel 7 Pty. Ltd

Richard Lower    News Director for Channel 9 South Australia Pty. Ltd.

Brenton Cotton.............................. Law Enforcement Liaison Assistant One.Tel Ltd. - phone records

Megan Jane Foster      Law Enforcement Liaison Officer Telstra Corp. Ltd. - phone records

Alison Field  Legal Assistant DPP located newspaper

articles published relating to Peter’s death

Grant Heading................................   News Director for Channel 10 Adelaide.

A number of tape and video recordings were tendered including:

-........ Tape of police interviews of the accused and transcript.

-        Video of police interview of accused and transcript.

-        Video of police pursuit.

-........ Tape recording of accused’s telephone answering machine and transcript.

92     The defence called the following witnesses:

David Gregory Foster         Accused

Garry Southgate...................... Alleged supplier of amphetamines, friend of the accused

Garry Neil Wilson  Friend of Mr Southgate

Joseph Sandor Hughes           Mr Wilson’s next door neighbour
        Doreen Southgate                   Mr Southgate’s mother

93     Rebuttal evidence was led from Ms Rice by the Crown.

Housing

94     Mrs Manikas lived in a housing trust property on the northern side of Blenheim Street, Angle Park.  The house, of block construction, had a common wall with 24 Blenheim Street.  Photographs show that it is small and compact with thin walls and wooden floor boards throughout. 

95     The floor plan of the property is reproduced as "Appendix A".

96     Given the nature of the house and its furnishings, sound travelled. The accused and Mrs Manikas recounted conversations which took place between different rooms on 15 June 1999.  When the accused was asked whether he heard any noises coming from any part of the house, he replied:

"A.     No.

Q.     The house was in complete silence.

A.     There probably would have been noises, I don't recall them though.

Q.     The house was in complete silence.

A.     I don't recall any noises.

Q.     Did you hear Peter call out.

A.     No.

Q.     Did you hear Peter crying.

A.     No.

Q...... Did you hear any noises in Peter's bedroom consistent with an argument taking place.

A.No.

Q...... If an argument had been taking place in Peter's bedroom, you would have heard that, wouldn't you, from where you were.

A.Yes, I think so.

Q...... If Peter had been crying you would have heard that.

A.Yes.

Q...... You heard no sounds that indicated that there was anything wrong with Peter until Mrs Manikas called out.

A.That's right."

97     Ms Truong, a student residing at 24 Blenheim Street described how her bedroom abutted the common wall, adjacent to the bedroom on the western side of Mrs Manikas’s house.  She recounted hearing noises though the wall whilst studying at night.

98     The accused lived in a three bedroom home at Lyndon Road, Paralowie.  The property comprised a lounge room in the south western corner, a main bedroom in the north western corner, a bathroom and two other bedrooms on the northern side, a dinette area in the south eastern corner and a kitchen/family room on the eastern side.

99     The laundry was used for marijuana cultivation.  It was filled with black plastic pots, time clocks, specialist lighting equipment, irrigation hoses and one large Cimcilia marijuana plant. A bedroom adjacent to the laundry had similarly been set up for the propagation of marijuana.  Photographs show the entrance to this bedroom to be blocked by a cupboard and a wooden partition.  Six marijuana plants, aged three to four weeks were growing hydroponically.

100   The police located a number of syringes and syringe dispensers, a tin of marijuana, implements for smoking marijuana and two publications including a “growers guide” in the house.  These observations are relevant to the accused’s drug use.

Telephone Records

101   The Crown tendered records of telephone calls made from the homes of Mrs Manikas and the accused between 1 May 1999 and 15 June 1999.

102   Summaries of these records are attached as Appendix B.

103   The records disclose the number, the time and the length of each call.   It was not suggested that anyone other than Mrs Manikas and the accused had made the calls.  It is therefore possible to draw conclusions as to a minimum level of contact between them.  The records do not preclude additional contact. When the records are considered with the other evidence, conclusions can be drawn about the movements of Mrs Manikas and the accused.

104   A number of calls from both homes to Ms Hancock have been identified.  Mr and Mrs Manikas and the accused gave evidence that Ms Hancock was a drug supplier.  The accused accepted that all contact with Ms Hancock, with possibly one exception, was made by Mrs Manikas.  It follows that Mrs Manikas was at the accused’s home when telephone calls were made to Ms Hancock.

105   There was considerable contact between the accused and Mrs Manikas, both face to face and by telephone during the period 28 May 1999 to 15 June 1999. 

106   Mrs Manikas was at the accused’s home at least on 13, 14, 25 and 28 May 1999 and on 2, 3, 9, 10 and 13 June 1999.  The records also show the accused to be at her home at least on 6, 7, 9 and 23  May 1999 and on 11 June 1999.

107   Evidence discloses that Mrs Manikas was at the accused’s home and that the accused was at Mrs Manikas’s home on other occasions.             

108   Contact between Mrs Manikas and the accused has particular relevance when considering events surrounding Peter's death.  This matter is discussed later.

Police Investigation

Generally

109   The police were notified of Peter's condition by the QEH staff and an immediate investigation commenced. Officers attended the emergency department and spoke to the treating doctors and Mrs Manikas. 

110   At about 5:11 pm, Detective Duval spoke with Mr Manikas.  Mr Manikas pointed to the accused whom he saw driving out of the car park.  The police pursued and apprehended the accused less than one kilometre away.

111   At the roadside, conversations with the accused included the following[11]:

[11] Conversations were recorded on a micro-cassette tape

"The time is 5.15pm, Wednesday the 15th of June 1999.  My name is Detective Duval.  I'm present on Woodville Road at Woodville.

Q.     For the purpose of the tape could you state your name please?

A.     David Gregory Foster.

Q...... David I'm investigating the death of Peter Manikas who has passed away this afternoon at the Queen Elizabeth Hospital.  Do you understand that?

A.Yeah.

Q...... Now I'm going to ask you some questions in relation to this death.  You are not obliged to answer those, but anything you do say at this stage will be recorded and may be used in evidence.  Do you understand that?

A.Yeah.

Q...... Can you tell me what happened to Peter?

A.I'm not quite sure.

Q...... Pardon?

A.I'm not sure.

Q...... Are you involved in Peter's death?

A.I believe not, no.  He was my responsibility at the time, yeah.

Q...... Well can you tell me how Peter died?

A.Umm.  No, I have ... I don't know.

Q...... David I ask you again are you involved in Peter's death?

A.No I don't think so, no.  But I was looking after him at the time, yeah.

Q...... But you can't explain to me how Peter has died?

A.No.

...

Q.Basically I want to get the children back and ensure their safety and obviously we are investigating Peter's death.  And at this stage it is unclear what's happened and that's why I'm asking you.  You can't help with anything?

A...... Well yeah I'm just shocked on that, that's all.

Q.Are you happy to accompany us back to the hospital so we can get the kids back?

A...... Yeah, yeah, yeah.

Q.Do you have any questions?

A...... Nah, no I don't.  Just catching my breath.

...

Q...... Well at this stage I don't propose to ask you any questions in great detail.  But is there anything you want to say before I turn the tape off?

A.No, I'm just not clear at the moment.

Q...... What not clear on something I've said to you or just not clear overall?

A.Just not clear overall.

Q...... Now do you understand that Peter has died?

A.Yeah.

Q...... And do you understand that you have been arrested on suspicion of murdering Peter Manikas?

A.Yeah, I'm not like that mate.  I'm not like that.

...

Q.And again do you have any questions before I turn the tape off?

A...... I dunno, just.  What happened to.

Q.David what I propose to do is I'm not going to ask you any questions at this stage in detail.  Again I must remind you you don't have to answer any questions if you don't want to, but at this stage I can tell you that Peter has died and we are investigating his death.  And in relation to his death you have been arrested for the murder of Peter, okay?

A...... I'm not a fucken mongrel like that."

112   Video interviewing occurred at the police station. The video record was tendered.

113   The accused made contact with his solicitor.  He spoke with the police and made it clear that the accused did not wish to be interviewed. The accused declined to answer any substantive questions.

114   At all times, the accused was entitled to refuse to answer police questions.  In doing so, he was exercising a right that the law gives to everyone.  I do not draw any adverse inference from the fact that the accused declined to answer police questions.

115   The accused's motor vehicle was examined on 15 June 1999 and impounded.  Mrs Manikas was interviewed for more than one and a half hours that evening.  She accompanied the police whilst they examined her home.  Some days later, the police examined the accused's home. 

116   The clothing of the accused, Mrs Manikas and Peter was seized by the police and subjected to forensic examination.

117   The matters set out above under the heading "Police Investigation Generally" were unchallenged.

Inadequate, Defective and Biased

118   In Penney v R[12] the High Court considered the significance of a defective police investigation.  Callinan J with whom McHugh, Gummow, Kirby and Haine JJ agreed said at [18]

“The appellant’s submissions on these contentions fail at the threshold.  They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial.  That is not to give any imprimatur to incomplete, unfair or insufficient police investigations.  Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial.  But that will all depend on the facts of the particular case.”

[12] (1998) 72 ALJR 1316

119   Defence counsel submitted that the police investigation was inadequate and defective.  It was further submitted that the police “jumped” to a hasty conclusion which resulted in a biased and skewed investigation. It was said that as a result, unfairness to the accused arose.  It was submitted that this matter affects the weight to be given to the evidence.

120   There was no application for any other relief.  There was no application for an adjournment.  No submissions were put that any particular evidence could not be obtained or placed before the court.  It was not submitted that the accused could not have a fair trial.  It was not submitted that the accused was entitled to a verdict of acquittal because of inadequate, defective and biased police investigation.

121   Counsel did not proceed beyond the general submission that some regard should be had to the unfairness.  No specific evidence was identified.  No submission demonstrated how the complaints adversely affected the accused.  No submission identified how any adjustment to the weight of the evidence should be effected.

122   Defence counsel particularised his complaint as follows:

- the arrest of the accused was unjustified and unlawful
- the investigation focused on the accused and not Mrs Manikas
- the major suspects were not treated equally

- when the accused’s legal advisers commenced their investigation

ofMrs Manikas they had not information

- the accused’s legal advisers were unable to fully check what Mrs Manikas was doing, who she was seeing and Peter’s movements in the last two to three weeks of his life

123   During the trial, records of telephone calls became available and also video footage of the pursuit and apprehension of the accused.  Defence counsel submitted that if this material had been available earlier, then the  investigation of the defence case would have been assisted.

124   The Crown submitted that there was ample evidence to support Detective Duval’s evidence that he held a reasonable suspicion to justify the apprehension of and arrest of the accused. Reference was made to the information obtained from doctors at the QEH, the awareness that Peter was dead and that his body was badly bruised.  Mrs Manikas had provided information.  She had expected the accused to bring John and Alex to her once he had parked the car.  Information was also provided by Mr Manikas.  The accused had driven away without any explanation of where he was going and what he intended to do.  When stopped, the accused said that Peter had died whilst in his care. It was said that in these circumstances Detective Duval was legally entitled to apprehend and arrest the accused.  I agree.  I reject the submissions that the accused’s arrest was unlawful.

125   I do not accept the submission that the police investigation was defective or inadequate.  I reject the suggestion that the investigation was biased or skewed.  An interview of Mrs Manikas occurred on 15 June 1999.  Her home was investigated.  Her clothing was seized.  Witnesses were interviewed. No possible witnesses were identified as having been overlooked or ignored.  Defence counsel could not refer to any evidence that justified his complaints of inadequacy.   I do not consider that any unfairness occurred.

Forensic Evidence

126   The forensic evidence establishes that vomit stains on Peter’s bedding and his windcheater matched his DNA profile.  Stains with matching DNA profiles were also found on the clothing of the accused and Mrs Manikas.

127   The Crown accepted that the forensic evidence could not confirm that the accused had contact with Peter before Mrs Manikas returned from the school on the afternoon of 15 June 1999.  Both the accused and Mrs Manikas may have had vomit on their clothing from handling Peter after that time.

Schooling

128   During 1999, Vlasios, Theodore and John attended the Kidman Park Primary School.  Vlasios was in grade five, Theodore grade three, and John grade two.  John left Kidman Park on 28 May 1999 and commenced at Madison Park Primary School on 31 May 1999.  He attended there until 15 June 1999.  Vlasios and Theodore continued to attend Kidman Park Primary School. 

129   School term I was from 27 January 1999 to 1 April 1999.  Term II commenced on 19 April 1999.

130   The Principal of Kidman Park Primary School, Ms Davidson, gave evidence along with her colleagues, Ms Gray, Ms Doroch and Mr Sinor. Ms Nicholson, John's teacher at Madison Park also gave evidence.

131   Ms Davidson and Mrs Doroch observed Mrs Manikas at school with Alex and Peter.  The children were described as normal, active young boys.  However, it was noted that Alex had a black eye. Nothing untoward was observed about the relationship between Mrs Manikas and her children. There was no suggestion that the boys were other than well cared for. Ms Davidson's last observation was on 26 May  1999.

132   Mr Sinor was a part-time teacher.  He observed Mrs Manikas swearing at her children.  He said:

"A..... Occasionally she'd be swearing at her children to get into the car and 'hurry up,' otherwise there was nothing unusual.  There was nothing else out of the ordinary, apart from that she was swearing at the children, which was not appropriate on the grounds.

Q.Is this when she's dropping them off, or when they are being picked up.

A...... In the afternoon."

133   John has a learning difficulty.  At one time, he was fifteen to twenty four months behind his age level in development.  However by mid 1999, he was only twelve months behind.  John did not suffer an intellectual disability. Mrs Manikas was the parent principally involved in John's schooling. The evidence indicated genuine concern on her part. She initiated his transfer to Madison Park Primary School. On 28 May 1999,  John's last day, Mrs Manikas brought him to his classroom so that he could say goodbye to his friends. 

134   Vlasios's and Theodore’s behaviour at school became increasingly disruptive. The boys were observed fighting and generally their behaviour deteriorated. It would appear that these problems commenced late in first term and worsened in second term. 

135   Theodore and John spoke with Mrs Doroch. Theodore said:

"Q.    Did you complain to your school teachers.

A...... When it got really bad and I didn't want to live with him any more, I just told the school and they rang up welfare and the welfare come (sic) and talked to us.

Q.Who did you speak to.  Who was the school teacher that you spoke to.

A...... Ms Davidson, the principal."

136   I accept the evidence of Ms Davidson, Ms Doroch, Mr Sinor and Theodore.

Family and Youth Services

137   On 10 May 1999 a telephone call was made to the FAYS  hotline from a teacher at the Kidman Park Primary School.   In the following days, more calls were made by other teachers.

138   On 13 May 1999 Samiko Toni Munro-Callisto, a social worker with FAYS, was assigned the Manikas case.  She commenced investigation. 

139   On 20, 21 and 24 May 1999, Ms Munro-Callisto and her co-worker Leanne Hallett, made unannounced visits to Mrs Manikas’s home.  Mrs Manikas was out each time.  However she was home on 25 May 1999.  A lengthy interview was conducted.

140   Mrs Manikas gave evidence that the accused asked her to record details of appointments or anyone coming to her home.  Photographs show a handwritten note as follows:

“25/5/99. 11.30 am - Department of Human Srv ‘Samiko Munro’ came to house to discuss allegations of abuse towards Vlas Theo & John.

27/5/99     10.00 am - DHS Samiko had interview with Vlas, Theo, John is to have interview with David & myself on Mon 31/5 12:00 pm at Enfield office.”

141   Mrs Manikas agreed that Vlasios and Theodore could be interviewed by FAYS.  Arrangements were made for Ms Munro-Callisto and Ms Hallett to attend the Kidman Park Primary School on 27 May 1999 for this purpose.  Mrs Manikas advised Ms Davidson of these arrangements on 26 May 1999. Mrs Manikas said she wished to attend the interviews but was told that this was inappropriate. She waited outside.  After Vlasios and Theodore had been separately interviewed, Mrs Manikas  spoke with the social workers and the boys.

142   On 27 May 1999 Ms Munro-Callisto indicated that she wished to interview the accused, Mrs Manikas and John. She also requested that the two younger Manikas children attend.  Mrs Manikas agreed.  An appointment was made for 12:00 pm on 31 May 1999 at the Enfield FAYS office.

143   The accused became very angry when he learned of FAYS involvement.  He said that:

"the relationship was at an end". 

144   Mrs Manikas said that the accused was concerned about being seen publicly with her whilst FAYS were conducting their investigation. When cross examined she said:

"Q.... After that period of time when the welfare people were wanting to have a talk with you and David, the accused, did David tell you that he was going to keep clear of you if you were going to get into this sort of trouble with the welfare people - words to that effect.

A.He wanted to make public appearances that he would keep clear, but he would come and see me quietly on the side, but he didn't want people knowing.

Q...... He told you he was going to keep away from your place because he didn't want any further trouble with the welfare department.

A.Like I said, it was more he didn't want people knowing he was going to be there.  He wanted it kept private. 

Q...... He was very cross about the way the welfare people were trying to approach him, do you agree.

A.Yes.

Q...... And when, on 8 June, the welfare wrote a letter saying that whatever allegations that were made were not proved, he got even crosser, didn't he?

A.Yes he did.

Q...... He got cross because he said 'They haven't even given me a chance to say it is not true and it is not proved', meaning it could have happened.

A.Yes, that's true."

145   The accused refused to attend the FAYS interview on 31 May 1999.  Mrs Manikas rang and cancelled the appointment.  She told FAYS that one of the children was ill.

146   A second appointment was made for Mrs Manikas, John and the accused to see Ms Munro-Callisto on 3 June 1999.  This meeting was also cancelled. Mrs Manikas said that the accused was adamant that he would not attend a FAYS appointment made by her. Over the telephone, she told Ms Munro-Callisto that the accused would not attend a FAYS interview unless he was contacted personally. Ms Munro-Callisto undertook to speak with the accused.

147   Ms Munro-Callisto attempted to contact the accused.  She spoke with him on 4 June 1999.  An appointment was made for 8 June 1999.  Ms Munro-Callisto arranged for the accused to inform Mrs Manikas. Again, the appointment was not kept.  Ms Munro-Callisto telephoned Mrs Manikas that afternoon.  She was told that Mrs Manikas knew nothing about the appointment.  Ms Munro-Callisto subsequently attempted to contact the accused a number of times on 8, 9 and 10 June 1999. She was unsuccessful.

148   A letter was then sent to Mrs Manikas, advising her that the FAYS investigation was closed.  The letter, dated 8 June 1999, was as follows:-

“Dear Tammy,

On the 25/5/99 and 27/5/99 social workers from the Enfield Office of Family and Youth Services (FAYS) spoke with you about a child protection notification which had been received involving Vlas, Theo, Peter, John and Alex.  The information received by FAYS alleged that your children may have been abused or neglected in your care by your partner at the time, David Foster.

FAYS wish to advise that the investigation into the concerns raised has been finalised and that the outcome has been recorded as Abuse Not Confirmed.  This means that FAYS does not need to be involved any further with you or your family and that the matter has now been closed.

However, should future concerns be reported to FAYS they will need to be managed according to priority system.  This could involve FAYS social workers making contact with you again.

Should you need assistance or support in the future please contact the Duty Social Worker who can advise you about services which may be available to meet your specific circumstances.

Thank you for your co-operation with FAYS social workers in the interests of ensuring the safety and protection of children.

Yours faithfully

(Signed)

Social Worker:  Samiko Munro,          Intake and Assessment Team

Supervisor:  Gayle Bartlett, Intake and Assessment Team

Manager:  Lynton Goldsworthy, Manager

149   Mrs Manikas showed the letter to the accused on 11 May 1999.  He was angry.  He said he had not been given the opportunity to respond to the allegations.  He rang Lynton John Goldsworthy, Manager of Enfield FAYS.  Mr Goldsworthy said he would investigate the accused's complaint.  He did so and learned of the failed attempts to interview the accused.

150   Mr Goldsworthy telephoned the accused's home on 15 June 1999 at about lunch time.  The accused did not answer.  Mr Goldsworthy left a message on the answering machine, inviting the accused to attend the FAYS office for an interview. Ms Munro-Callisto also telephoned the accused that day at about 3:15 pm.  She too left a message. 

151   I accept the evidence of Ms Munro-Callisto, Mr Goldsworthy and Mrs Manikas about the FAYS investigation and the accused's reactions

152   I consider the accused’s assertion that he wanted the opportunity to clear his name is disingenuous.[13]  Three appointments were made.  The first two were avoided on spurious grounds and the third, made personally with him, was not kept.  I reject his claim that he forgot the appointment on 8 June 1999.

Observations of Peter

[13] The issue of the accused's credibility including his evidence about FAYS is dealt with further at [373-430]

153   Mrs Doroch observed Alex and Peter in the week of 3 May 1999.  She described them as normal, active boys.  She did not see any marks or bruises on either boy.

154   Peter was observed by Mr Manikas to have a black right eye on or about 19 May 1999.  Ms McBride and Mr Clifford  observed Peter with a black eye on or about 25 May 1999.  No other injuries were noted. Ms Rice saw nothing untoward throughout May 1999.

155   On 26 May 1999, Mrs Manikas met with Ms Davidson. Apart from noting Alex’s black eye, she described the children as happy, well and normal. She discussed her plan to move John to Madison Park Primary School.  Alex and Peter were with her.  Ms Davidson had met the boys on previous occasions.

156   I consider the evidence of Mrs Doroch and Ms Davidson to be significant.  During May 1999, they had made reports to FAYS about Vlasios, Theodore and John.  Had they been concerned for Peter's welfare, it is likely that such concerns, would have been noted.

157   Mrs Manikas did not hide Peter or her other children from the public.  This was in circumstances where she was aware that FAYS were conducting an investigation.             

158   I am satisfied that prior to Mrs Manikas’s relationship with the accused, Peter did not display any visible signs of child abuse.  All his injuries, as observed by Dr Byard were sustained within fourteen days of his death.[14]

Major Events on 15 June 1999[15]

The Crown Case

[14] See [53]

[15] Elsewhere other major events on 15 June 1999 are discussed.

159   Mrs Manikas, John, Alex and Peter stayed at the accused's home on 11, 12 and 13 June 1999.  On 14 June 1999, Mrs Manikas left the accused’s home at about 6:30 pm with John, Alex and Peter.  She telephoned the accused at about 8:00 pm to:

“... see how he [the accused] was and to tell him to come down and spend the night then at my house...”. 

The accused arrived at her home at about 9:00 pm.  He stayed overnight.

160   In the morning John, Alex and Peter were awake early. John, in accordance with his usual routine dressed, ate breakfast, organised his recess and lunch and then readied himself for school.  Alex and Peter were dressed and had eaten breakfast. Mrs Manikas arose at about 8:00 am.  She drove John to school.

161   When she returned, the accused was still asleep.  Alex and Peter watched television while she tidied up and had a bath.  At about 10:30-11:00 am the accused arose, had a bath and a smoke of marijuana.  Mrs Manikas “dozed off” at about 11:00 am.  The accused woke her at 12:30 pm and she prepared lunch for Alex and Peter. The accused lay down.  The boys were in the lounge:

“cuddling up, spending time together quietly" and "watching some TV”.

At about 2:15 pm the accused asked Mrs Manikas to purchase lunch for him:

“....... ... So I went to the shop to get the Advertiser and a couple of pies, iced coffee, a mars bar I think as well.

Q.Were you away from the house for very long.

A...... Barely 10 minutes, not even that.  Came back -

Q.Where were the boys when you came back.

A...... They were still in the lounge room watching television.

Q.And David.

A...... He was in the bedroom.

Q.Did the boys appear okay.

A...... Yes, nothing had changed while I was gone.

Q.What happened after you returned with the food and the iced coffee for David.

A...... I left to go and pick up John from school.”

162   Photographs of Mrs Manikas’s home show that on 15 June 1999 the bed in the main bedroom was unmade.  An open newspaper was spread about the bed.  Several items of clothing were also scattered on the floor.   The accused’s sunglasses and marijuana pipe can be seen on a chest of drawers.  Photographs show a Mars bar wrapper and an empty ice coffee carton in the rubbish bin. The Crown submitted that this evidence supported Mrs Manikas’s account of the events of 15 June 1999.

163   At about 2:45 pm Mrs Manikas left to collect John from school.  She went alone.   On the way, she stopped at a BP petrol station on Salisbury Highway.  She paid $2.00 in cash for petrol before driving to the Madison Park School.  John had been involved in tree planting.  He had asked his mother to collect him from the classroom. Mrs Manikas did this, arriving shortly before the 3:15 pm school bell.  She heard the bell ring.

164   On the way home, Mrs Manikas stopped at the Bi-Lo supermarket on Northbri Avenue, Salisbury.  She purchased milk using her EFTPOS card.  Records tendered show that the transaction occurred at 3:19.58 pm.  She then returned home. 

165   Mrs Manikas estimated that the round trip took between forty five minutes and one hour. This is supported by the evidence of Detective Duval who timed the route travelled.  I am satisfied that the journey, including all stops, was likely to have taken close to one hour. I reject the suggestion put to Mrs Manikas in cross-examination that it could have been undertaken in approximately twenty minutes.

166   The timing of the journey from the supermarket to Mrs Manikas’s home is important. Detective Duval’s evidence indicates that it would take approximately twenty minutes.  I accept this evidence.  As the EFTPOS transaction is accurate I am satisfied that Mrs Manikas arrived home at about 3:40 pm.

167   Mrs Manikas entered her home through the back door.  She told John to shower because he was muddy.  John went into the kitchen to unpack his school bag and put away his lunch box.  She entered the main bedroom through the doorway adjacent to the back door.  She heard the accused call out:

“... I would need to speak to Alex about something he  had done to Peter.”

She was not "overly" alarmed and proceeded towards the lounge.  As she did so, the accused said:

“that Peter wasn’t that good”. 

She began to worry and he continued:

“but not to have, he called it a panic attack, that he had just been up and been to the toilet, but that I needed to come and see Peter first.”

168   At this point, Mrs Manikas went into Peter's bedroom. The accused was there and he sat on Peter's bed.

169   Peter was in bed, lying on his right side facing the wall with a quilt pulled up high around his neck. 

The accused said to Mrs Manikas:

“Speak to him and he would wake up.”

Mrs Manikas spoke to him, saying: 

“... wake up, that mummy was home.” 

Peter did not react.

170   The accused pulled back the quilt.  He lifted Peter.  Mrs Manikas observed that Peter was “floppy” and that his eyes were only partly open.  His face was very white.  She observed no signs of life.  She described the accused as holding Peter with:

"... his head out in front of him and his legs up towards his stomach."

The accused said: 

“Open your eyes Petie ... Mummy’s home.” 

Again, there was no response.  Mrs Manikas said: 

“There’s something wrong”

and the accused replied,

“No, he’s fine, he’s fine.” 

The accused seemed to think that Peter was still breathing. 

171   Mrs Manikas insisted that Peter was not alright.  The accused then carried him into the main bedroom where he attempted mouth to mouth resuscitation.  Mrs Manikas said she would call an ambulance but the accused thought that it would be quicker if he drove to the hospital.  He handed Peter to Mrs Manikas, and gathered John and Alex.  He then drove his vehicle to the QEH.

172   On the way, Mrs Manikas attempted to ascertain what had happened.  She wanted to be able to provide information to the doctors.  Whilst in the car, she recalled that prior to leaving her home the accused had said that Alex had done something to Peter.  Accordingly, she asked Alex what had happened.  Alex replied that:

"he had hit Peter in the head and that he had hit his head on the corner of the lounge."

The accused then said:

“That it didn’t sound right and to ask him again”.

Mrs Manikas again asked Alex what had happened saying:

“You’re not in any trouble, we just need to know, to tell the doctor, so he could make Peter better.” 

Alex replied that he did not know what had happened to Peter.

173   After arriving at the QEH at about 4:00 pm, Mrs Manikas did not see the accused again until court.  Emergency staff at the QEH contacted Mr Manikas at about 4:30 pm and he arrived at the hospital at about 5:00 pm.  On arrival, he spoke with Mrs Manikas who told him that:

"Peter's gone". 

174   Mr Manikas stayed with his wife for about ten minutes and then went outside for a cigarette.  He said he intended to locate the accused and John and Alex.  Whilst outside, he saw the accused park and walk towards him.  The accused asked:

"What's going on?" 

Mr Manikas replied:

“Peter’s dead”.  

The accused then put his hands behind his head, turned to walk away saying:

"What have I done?"  

175   The accused then leant against his front door for a few moments and then proceeded to drive out of the carpark and along Woodville Road.  At about that time, 5:11 pm, the police approached Mr Manikas.  He indicated to them that the accused was driving out of the carpark.

176   The police pursued the accused.  They stopped and apprehended him within about one kilometre of the carpark.  He was interviewed at the side of the road at approximately 5:15 pm.  During the interview, the accused told Detective Duval that Peter was in his care at the time of his death.

The Accused’s Case

177   The accused gave evidence and called three witnesses, Gary Southgate, Gary Neil Wilson and Joseph Sandor Hughes.

178   The accused stayed at his home overnight on 14 June 1999.  He made two calls from his home on 15 June 1999.  He rang Mr Goldsworthy of FAYS and later his drug supplier, Mr Southgate.  He drove to Mr Southgate’s home and arrived at, he guessed, approximately 1:00 pm.  He claimed to be:

"reliant on others in regard to times." 

Whilst at Southgate’s, he drank coffee, engaged in discussion and “snorted” a line of speed.  He also spoke with two men working on Mr Southgate’s car.  He left Southgate's in sufficient time to arrive at Mrs Manikas’s home before she left for the school.  The trip took at least thirty minutes.

179   The accused arrived later than had been arranged.  (He was unable to remember the arranged time.)  He went straight into the main bedroom and spoke with Mrs Manikas.  She told him that Alex and Peter were watching television.  He did not see the boys.  She then left to collect John.

180   After about ten minutes, the accused heard Peter make a distinctive noise.  The noise was an odd sound made through the nose.  The accused was unable to elaborate on this description or demonstrate the noise.  He assumed that the boys had been fighting and “screamed” at them to go to their rooms, adding that they should go to the toilet first.  He heard the toilet flush. He heard no other noise.

181   Later, Alex came into the main bedroom.  The accused did not allow him speak and sent him away.  In evidence, the accused explained that as a result of the FAYS accusations, he did not want to be involved with the Manikas boys.  He was fearful that further allegations would be made. 

182   The accused was in the main bedroom when Mrs Manikas returned from the school.  The accused suggested that she had only been away half an hour. Mrs Manikas enquired after the boys and he replied that he had sent them to their rooms.  He then added:

“I think you might want to check Peter.  I think they’ve been at it again”.

The strange noise was the basis for this suggestion.  Mrs Manikas then went straight into Peter’s bedroom.  Within seconds, she called out:

“Peter won’t wake up”.

The accused went immediately to Peter’s bedroom.

183   On entering the bedroom, the accused saw Peter in bed, lying facing the wall, with his quilt pulled around him.  He went to the bed and attempted to arouse Peter.  There was no response.  He picked Peter up and held him to his chest with his head near his left shoulder. The remainder of the accused's account up until the trip to the QEH is similar to Mrs Manikas’s account.

184   When cross-examined about the trip to the QEH the accused said:

“Q.. Mrs Manikas says that Alex told her that ‘He had hit Peter in the head’ and that ‘he had hit his head on the corner of the lounge’.  You recall her giving that evidence.

471   At the Manikas home, according to Mrs Manikas the accused said that she:

“would need to speak to Alex about something he had done to Peter”

and

“Peter wasn’t that good”. 

According to the accused the conversation was

“I think you might want to check Peter ... I think they’ve been at it again.”[63] 

[63] Elsewhere I have accepted Mrs Manikas’s account

472   All these statements carry the implication that the accused was aware that Peter had been injured.  The accused’s account that he had heard a distinctive noise from Peter and that he thought there may have been a fight, did not explain his statements.  The accused knew more.  I find that the accused called out to Mrs Manikas with the knowledge that Peter had been struck and injured.

473   On the way to the QEH, the accused said in response to Alex’s observation that Peter had hit his head on a corner of the lounge, “that doesn’t sound right, ask him again”.  I infer from this statement that the accused knew that Peter’s condition could not be explained by Alex’s observation. I infer that the accused realised that Alex’s explanation could not be substantiated.  The accused’s statement carries the implication that he was aware that Peter had not sustained a head injury.  I infer the accused made his statement because he had knowledge of the circumstances in which Peter had been injured. 

474   At the QEH, the following exchange took place between the accused and Mr Manikas:

“ 'Fuck off,  I don’t want to see you.  Don’t come near me'.  He [the accused] said 'What’s happened to Peter?' , I said 'He’s dead’.  He turned around, started walking back to the car park, put his hands on the back of his head and I heard him clearly say 'What have I done?'.  David was still only about half a metre to a metre away from me.  What he said I heard clearly.”

475   The accused’s statement “what have I done?” acknowledges some responsibility for what occurred.  I infer that the accused felt responsible for what had happened to Peter.  I infer that the accused had some knowledge of what had occurred.  I infer that the accused had “done” something.

476   The accused’s statements to the police on apprehension included an acceptance that he was responsible for Peter at the time of his death.  The following exchanges occurred:

“Q.... Are you involved in Peter’s death?

A.I believe not, no.  He was my responsibility at the time, yeah.

Q...... Well can you tell me how Peter died?

A.Umm.  No, I have ...  I don't know.

Q.         David I ask you again are you involved in Peter’s death?

A...... No, I don’t think so, no.  But I was looking after him at the time, yeah.

Q.But you can’t explain to me how Peter has died?

A...... No.”

I infer from these statements that the accused felt some responsibility towards Peter and that Peter was in his care at or about the time he died.

477   In evidence the accused made it clear that he had the responsibility for Peter whilst Mrs Manikas collected John from school.

Motive

478   The existence of a motive or possible motive does not of itself prove that the accused committed the act in question.  This is one factor, which when taken with others, may lead to a conclusion about the accused's intention at the time. 

479   A person’s motives may be difficult or impossible to accurately discern.  Crimes can be committed without apparent motive.  The absence of an apparent motive does not disprove that the accused committed the crime.  Absence of motive can lead to a closer scrutiny of the incriminating evidence and either by itself, or with other factors, give rise to a reasonable doubt. 

Onus of Proof

480   I repeat that I have borne in mind that the accused comes into this court with a presumption of innocence in his favour.  The law looks upon him as innocent of any crime until his guilt has been proved beyond reasonable doubt.  There is no obligation upon the accused to exonerate himself or to prove anything.

481   Defence counsel emphasised that the accused did not have to prove that Mrs Manikas inflicted the fatal blow.  He said:

"It is not for us to prove that Tammy Manikas inflicted the fatal blow.  That is what I meant at the beginning when I said 'My case is very different to Mr Millsteed's.'  Mr Millsteed has got to rebut the presumption of innocence.  He has got to prove beyond reasonable doubt  that the accused effected this blow and, as he acknowledges, included in that he has to exclude Tammy Manikas beyond reasonable doubt."

It was correctly submitted that the Crown had to exclude, as a reasonable possibility that Mrs Manikas had inflicted the fatal blow.  The Crown accepted that proposition.

482   At all times, the burden of proof lies with the prosecution.  It must prove each and every element of the charge beyond reasonable doubt.  If the prosecution fail to do this, the accused is entitled to a verdict of not guilty and acquittal. 

Striking of the Fatal Blow

483   I refer to my conclusions as to the credibility and reliability of the accused, Mrs Manikas and the other witnesses.  I also refer to my findings generally and in particular to my finding that Mrs Manikas did not strike the fatal blow.  

484   I  find that the accused struck the fatal blow.  The blow tore Peter's liver. Haemorrhaging occurred causing death. The accused knew that he was inflicting the blow to a young child.  The blow was struck whilst Peter was in the accused's care between about 2:45 pm and 3:45 pm on 15 June 1999. Mrs Manikas was absent collecting John from school. 

485   To be explicit, I am satisfied beyond reasonable doubt that the accused inflicted the fatal blow.  I am also satisfied that the Crown has excluded the reasonable possibility that Mrs Manikas inflicted the fatal blow.

Summary of Important Findings

486   In my reasons, I have summarised important aspects of the evidence and submissions.  I have not endeavoured to deal with everything but in coming to my ultimate decision, I have considered all submissions and have taken all of the evidence into account.

487   It is convenient to summarise some of my more important findings:

1.The accused and Mrs Manikas had been in a relationship from April 1999.

1.1... They spent considerable time each week together.  Some weekdays and most weekends were spent at the accused’s home.  Some weekday visits occurred and some week nights were spent at Mrs Manikas’s home.

1.2Mrs Manikas would take her children with her to the accused’s home.  She had the day to day care of John, Alex and Peter.

1.3... Mrs Manikas was usually responsible for shopping, washing and meals.  She ran errands, including “scoring drugs” for the accused.

1.4For Mrs Manikas, the relationship was caring. The accused gave her considerable support.

1.5... The relationship continued without any substantial change until 15 June 1999.

2...... School teachers were concerned about the welfare of Vlasios, Theodore and John. They advised FAYS of these concerns.

3.The accused was considered to be the possible abuser of the Manikas children.  A FAYS investigation commenced.

4.     The accused was very angry when he learned of the FAYS investigation

4.1... He expressed his concerns to Mrs Manikas.  He said that he did not want to be publicly associated with her but that he would continue to see her without anyone knowing.

4.2He avoided being interviewed by FAYS.

4.3... He advised Mrs Manikas not to take Peter to a doctor because her children would be taken away by FAYS.

5...... Peter was not subjected to physical abuse before the relationship between the accused and Mrs Manikas commenced. He was abused in the last weeks of his life.  The abuse may have started as early as mid May 1999.

6.The accused did not like Peter.  He was irritated by Peter and in particular by a whinging and whining noise that he made.  The accused displayed intolerance towards Peter. Their relationship was one of violence, abuse and cruelty towards Peter.  An atmosphere of hostility existed.

7.A number of incidents occurred involving Peter.

7.1.... On or about 15 May 1999 Peter suffered an injury to his left eye.  He was in the care of the accused.  Mrs Manikas was not present.

7.2 In late May 1999 the accused repeatedly kicked Peter forcibly in the presence of Ms Rice.  This was a serious assault.  The accused had the care of Peter.  Mrs Manikas was not present.

7.3 . In the first week of June 1999 Peter suffered an injury to his head.  The accused had the care of Peter.  Mrs Manikas was not present. 

7.4 The accused pulled down on Peter’s ear with sufficient force to cause a tear between an ear and his scalp.  Mrs Manikas was not present. 

7.5 .. The accused stepped on Peter’s stomach several times.  The accused had the care of Peter.  Mrs Manikas was not present.

7.8 The accused pushed Peter’s head into the "console" between the front  seats of his car.  This caused bruising to Peter’s forehead.  The accused had the care of Peter.  Mrs Manikas was not present.

7.9 .. Generally, the accused was rough towards Peter.  He pushed, shoved, kicked and poked him.

8................ Mrs Manakis did not abuse her children.

9...... The accused was at Mrs Manikas’s home from approximately 10:00 pm on 14 June 1999 until approximately 3:50 pm on 15 June 1999.

10.Mrs Manikas was absent from her home between approximately 2:45 pm and 3:45 pm on 15 June 1999.  She left Alex and Peter in the care of the accused.  On her return, Peter was near death, or dead.

11.Peter died as a result of receiving a blow to his abdomen.  The force was considerable and focussed. His liver was compacted against his spine.  His liver tore and haemorrhaging occurred.  He died within five to thirty minutes of the blow.  He died at least fifteen minutes before arriving at the QEH at 4:00 pm.  Death occurred between 2:10 pm and 3:45 pm.

12.    The fatal blow was not accidental.

13.Alex did not inflict the fatal blow.  He was incapable of doing so.

14. Mrs Manikas did not inflict the fatal blow.

1. The accused had the care of Peter from about 2:45 pm until about 3:45 pm on 15 June 1999.  The accused struck Peter a fatal blow whilst he was in his care.

Murder - Manslaughter

Knowledge and Intention

488   In order to prove the charge of murder the Crown must prove that the fatal blow was inflicted with the intention of causing death or grievous bodily harm, or with the knowledge that it was probable that death or grievous bodily harm would result.  In The Queen  v Crabbe[64] the High Court said at (469 - 470):

“It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.  It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result. 

A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is, as Stephen’s Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or even by a wish that death or grievous bodily harm might not be caused.  That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder.  It is not the offender’s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element.  ” 

[64] (1984-85) 156 CLR 464 at 469-470

489   The Crown did not submit that the accused intended to cause the death of Peter.  It was said that he intended to cause grievous bodily harm or alternatively, he inflicted the blow knowing that grievous bodily harm would probably result.  

490   I am satisfied of each of the following matters:

-       the accused inflicted a blow to Peter that caused his death

-the accused intended to inflict the blow, it was deliberate and not   accidental

-the accused was aware that he was inflicting a blow to a young child with force

-       the accused was aware that he was assaulting Peter

-       the accused was aware that what he was doing was wrong

-the accused was aware that there was an appreciable risk of serious injury, (that is grievous bodily harm) to Peter from the blow he was inflicting

I am further satisfied that the action of the accused in inflicting the blow was unlawful and dangerous. The accused is undoubtedly guilty of manslaughter by an unlawful and dangerous act.[65]

[65] Wilson v The Queen (1991-92) 174 CLR 313

491    I am further satisfied that a reasonable person in the accused’s position would have realised that Peter was being exposed to an appreciable risk of serious injury.

492   The difficult question is whether the accused knew that the blow would probably result in death or grievous bodily harm.  There is no evidence which establishes how the blow was inflicted.  It could have been by fist, foot or knee.  An object may have been used.  There is no basis for inferring the exact manner in which the injury occurred.

493   The Crown submitted that by striking Peter with such force, the accused must have known that it was probable that at least grievous bodily harm would result.  Emphasis was placed on the nature and extent of the injury that caused death.

494   Having considered all these matters, I am left in doubt as to whether the accused had the requisite state of mind for the crime of murder.  In my view, it is a reasonable possibility that the accused struck out in irritation or annoyance but did not have knowledge of the probability that he would cause death or grievous bodily harm.  Whilst acknowledging the strength of the Crown's submissions I consider the doubt that I hold to be a reasonable doubt.

495   I am unable to infer beyond reasonable doubt that the accused knew that the blow he inflicted would probably cause death or grievous bodily harm.

Verdict

496   The verdict of the court is that the accused is not guilty of murder but guilty of manslaughter.

Refer to original judgment for Appendix A (sketch of houseplan)

APPENDIX B

Telephone Contact between the Accused and Mrs Manikas 3 May 1999-15 June 1999.

1999	Time	Call
May 1 (Sat)
May 2 (Sun)
May 3 (Mon)	09:28 pm	Accused[66] to Mrs Manikas[67]
4 (Tues)	03:49 am	Mrs Manikas to Accused
10:13 am	Mrs Manikas to Accused
05:18 pm	Mrs Manikas to Accused
08:08 pm	Accused to Mrs Manikas
5 (Wed)	06:14 pm	Mrs Manikas to Accused
09:52 pm	Accused to Mrs Manikas
09:56 pm	Accused to Mrs Manikas
11:12 pm	Mrs Manikas to Accused
6 (Thurs)
7 (Fri)	11:33 am	Mrs Manikas to Accused
09:56 pm	Accused to Mrs Manikas
8 (Sat)
9 (Sun)
10 (Mon)	3:38 pm	Mrs Manikas to Accused
11 (Tues)	11:29 am	Mrs Manikas to Accused
9:53 pm	Accused to Mrs Manikas
10:06 pm	Mrs Manikas to Accused
12 (Wed)	9:24 am	Mrs Manikas to Accused
2:02 pm	Accused to Mrs Manikas
13 (Thurs)	10:20 am	Mrs Manikas to Accused
14 (Fri)	5:18 pm	Accused to Mrs Manikas
15 (Sat)
16 (Sun)
17 (Mon)	7:53 pm	Mrs Manikas to Accused
18 (Tues)	3:17 pm	Accused to Mrs Manikas
19 (Wed)
20 (Thurs)	4:44 pm	Mrs Manikas to Accused
8:02 pm	Mrs Manikas to Accused
8:34 pm	Accused to Mrs Manikas
21 (Fri)	12:06 pm	Mrs Manikas to Accused
22 (Sat)
23 (Sun)	3:40 pm	Accused to Mrs Manikas
10:14 pm	Accused to Mrs Manikas
10:17 pm	Accused to Mrs Manikas
24 (Mon)	4:18 am	Mrs Manikas to Accused
10:19 am	Mrs Manikas to Accused
6:23 pm	Accused to Mrs Manikas
25 (Tues)	11:15 am	Mrs Manikas to Accused
12:43 pm	Mrs Manikas to Accused
3:56 pm	Mrs Manikas to Accused
8:44 pm	Accused to Mrs Manikas
8:48 pm	Mrs Manikas to Accused
9:03 pm	Accused to Mrs Manikas
9:21 pm	Mrs Manikas to Accused
26 (Wed)	12:41 pm	Mrs Manikas to Accused
10:42 pm	Mrs Manikas to Accused
27 (Thurs)
28 (Fri)
29 (Sat)	6:35 pm	Mrs Manikas to Accused
30 (Sun)	6:00 pm	Accused to Mrs Manikas
31 (Mon)	7:08 pm	Mrs Manikas to Accused
June 1 (Tues)	7:08 pm	Mrs Manikas to Accused
7:47 pm	Mrs Manikas to Accused
2 (Wed)	10:36 am	Mrs Manikas to Accused
10:51am	Mrs Manikas to Accused
3 (Thurs)
4 (Fri)
5 (Sat)	6:16 pm	Mrs Manikas to Accused
6 (Sun)	2:02 pm	Mrs Manikas to Accused
4:41 pm	Accused to Mrs Manikas
7 (Mon)	6:56 pm	Mrs Manikas to Accused
8 (Tues)	6:10 pm	Mrs Manikas to Accused
9 (Wed)	4:22 pm	Accused to Mrs Manikas
4:39 pm	Accused to Mrs Manikas
7:55.01 pm	Accused to Mrs Manikas
7:56 pm	Mrs Manikas to Accused
8:10 pm	Accused to Mrs Manikas
10 (Thurs)
11 (Fri)	8:44 pm	Accused to Mrs Manikas
12 (Sat)	10:46 am	Accused to Mrs Manikas
12:32 pm	Accused to Mrs Manikas
1:57 pm	Accused to Mrs Manikas
6:12 pm	Accused to Mrs Manikas
6:58 pm	Mrs Manikas to Accused
13 (Sun)	12:57 pm	Mrs Manikas to Accused
14 (Mon)	8:03 pm	Mrs Manikas to Accused
15 (Tues)

[66] Where the accused is referred to in this table it means the accused’s telephone.

[67] Where Mrs Manikas is referred to in this table it means Mrs Manikas’s telephone.

Contact between Mrs Manikas and Ms Hancock[68]

[68] The evidence established that much if not all contact with Ms Hancock was drug related.  It was

common ground that the calls, with possibly one exception, were made by Mrs Manikas.

1999	Time	Call
May  6 (Thurs)	4:56 pm	Mrs Manikas[69] to Ms Hancock[70]
5:24 pm	Mrs Manikas to Ms Hancock
13 (Thurs)	5:35 pm	Accused to Ms Hancock
5:52 pm	Accused to Ms Hancock
7:05 pm	Accused to Ms Hancock
14 (Fri)	11:06 am	Accused to Ms Hancock
23 (Sun)	7:23 pm	Mrs Manikas to Ms Hancock
24 (Mon)	8:24 am	Mrs Manikas to Ms Hancock
25 (Tues)	9:26 am	Mrs Manikas to Ms Hancock
2:15 pm	Accused to Ms Hancock
9:17 pm	Mrs Manikas to Ms Hancock
9:39 pm	Mrs Manikas to Ms Hancock
27 (Thurs)	9:21 am	Mrs Manikas to Ms Hancock
28 (Fri)	10:53 am	Accused to Ms Hancock
June 1 (Tues)	5:44pm	Accused to Ms Hancock's mobile phone.
2 (Wed)	8:10 am	Accused to Ms Hancock
10:50 am	Mrs Manikas to Ms Hancock
3 (Thurs)	12:31 pm	Accused to Ms Hancock’s mobile phone
9 (Wed)	4:33 pm	Mrs Manikas to Ms Hancock
6:06 pm	Accused to Ms Hancock’s mobile phone
6:16 pm	Accused to Ms Hancock
7:55.58 pm	Mrs Manikas to Ms Hancock
10 (Thurs)	11:12 am	Accused to Ms Hancock
12:03 pm	Mrs Manikas to Ms Hancock
4:47 pm	Accused to Ms Hancock
4:56 pm	Accused to Ms Hancock
6:15 pm	Accused to Ms Hancock
11 (Fri)	8:53 am	Mrs Manikas to Ms Hancock
13 (Sun)	6:15 pm	Accused to Ms Hancock

[69] Where “Mrs Manikas” is referred to in this table it means Mrs Manikas’s telephone.

[70] Where “Ms Hancock” is referred to in this table it means Ms Hancock’s telephone.

CONTENTS

The Charge.................................................................................................................... 1
Crown Case................................................................................................................... 2

A Short Description................................................................................................... 2

The Defence Case........................................................................................................ 3

A Short Description................................................................................................... 3

Emergency Treatment at the QEH.............................................................................. 5
Autopsy......................................................................................................................... 6
Time of Death............................................................................................................. 12
Time between Fatal Blow and Death........................................................................ 12
Symptoms following Injury....................................................................................... 13
Age and Appearance of Injuries................................................................................ 13
The Manikas Family................................................................................................... 15

Peter............................................................................................................................ 15
Mrs Manikas............................................................................................................... 15
Alex............................................................................................................................. 15

John and Alex.............................................................................................................. 16

The Accused............................................................................................................... 17
Drug Use..................................................................................................................... 17
Relationships.............................................................................................................. 18

The Accused and Karen Foster.................................................................................. 18
The Accused and Ms Rice......................................................................................... 18
The Accused and Mrs Manikas.................................................................................. 18
The Accused and Mr Manikas................................................................................... 19
The Accused and the Manikas Children.................................................................... 20
The Accused and Peter............................................................................................... 20
The Accused, Ms McBride and Mr Clifford............................................................ 20
Mr and Mrs Manikas.................................................................................................. 20
Mrs Manikas and the Manikas Children................................................................... 21

Mrs Manikas and Peter.............................................................................................. 21

The Trial Process....................................................................................................... 21
Housing....................................................................................................................... 25
Telephone Records.................................................................................................... 26
Police Investigation................................................................................................... 27

Generally..................................................................................................................... 27

Inadequate, Defective and Biased............................................................................. 30

Forensic Evidence...................................................................................................... 32
Schooling.................................................................................................................... 32
Family and Youth Services........................................................................................ 33
Observations of Peter................................................................................................ 37
Major Events on 15 June 1999................................................................................. 37

The Crown Case.......................................................................................................... 37
The Accused’s Case................................................................................................... 42

Findings....................................................................................................................... 45

Incidents Involving Peter........................................................................................... 45

The First Incident....................................................................................................... 45
The Kicking Incident.................................................................................................. 46

The So-Called Spilt Milk Incident............................................................................ 49

The Accused's Account......................................................................................... 49
Mrs Manikas's Account:........................................................................................ 50
Ms Rice's Account................................................................................................. 51

Findings.................................................................................................................. 51

Madison Park/Night Punches.................................................................................... 51
Groin Incident............................................................................................................. 52

Torn Ear Incident........................................................................................................ 52

The Accused's Account......................................................................................... 52
Medical Evidence.................................................................................................. 53

Findings.................................................................................................................. 54

Stepping Incident........................................................................................................ 54
Console Incident........................................................................................................ 56

General Incidents....................................................................................................... 56

Incidents Involving Peter’s Siblings......................................................................... 57

Vlasios......................................................................................................................... 57
Theodore..................................................................................................................... 57
John............................................................................................................................. 59

Alex............................................................................................................................. 59

Incidents Involving Other Children........................................................................... 60

Joshua Foster.............................................................................................................. 60

Jesse Clifford............................................................................................................. 61

The Accused’s Attitude Towards Peter.................................................................... 61
Propensity Evidence.................................................................................................. 64

General Principles..................................................................................................... 64

Use of the Evidence of Prior Incidents.................................................................... 68
The Nature of the Relationship Between the Accused and Peter.......................... 69
Intoxication - Intent................................................................................................... 71
Credibility and Reliability......................................................................................... 74

Mrs Manikas............................................................................................................... 74

Support........................................................................................................................ 75

The Manikas Children............................................................................................ 75
Mr Manakis............................................................................................................ 75
School teachers...................................................................................................... 76
Ms McBride and Mr Clifford............................................................................... 78

Ms Rice.................................................................................................................. 78

Other Matters............................................................................................................. 78

Not hiding Peter..................................................................................................... 78
Time Absent on 15 June 1999.............................................................................. 78

Contact Between the Accused, John, Alex and Peter......................................... 79

Other Evidence........................................................................................................... 81

Conclusions................................................................................................................ 82

Credibility and Reliability......................................................................................... 83

The Accused................................................................................................................ 83
The Period 27 May 1999 - 15 June 1999................................................................ 84

14 - 15 June 1999...................................................................................................... 85

Mr Southgate's Account............................................................................................ 88
The Accounts of Mr Wilson and Mr Hughes........................................................... 92

Telephone Records.................................................................................................... 93
Conclusions of the Accused's Account.................................................................... 94

Other Matters............................................................................................................. 95

Credibility and Reliability......................................................................................... 96

Ms Rice....................................................................................................................... 96

Credibility and Reliability......................................................................................... 97

The Manikas Children................................................................................................ 97

Credibility and Reliability....................................................................................... 100

The Police Witnesses................................................................................................ 100

Credibility And Reliability...................................................................................... 101

Mr Manikas................................................................................................................. 101

Credibility and Reliability....................................................................................... 101

Other Witnesses......................................................................................................... 101

Consciousness of Guilt........................................................................................... 102
Blaming Alex............................................................................................................ 103
Admissions............................................................................................................... 104
Motive....................................................................................................................... 105
Onus of Proof.......................................................................................................... 106
Striking of the Fatal Blow....................................................................................... 106
Summary of Important Findings............................................................................. 107
Murder - Manslaughter............................................................................................ 109

Knowledge and Intention........................................................................................... 109

Verdict...................................................................................................................... 111

Appendix A............. Refer to original judgment for sketch of houseplan  112
Appendix B............................................................................................................. 113
Contents Page........................................................................................................ 117

INDEX OF CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1 Juries Act 1927 (SA) Section 7 (1) "Subject to this section, where, in a criminal trial before the Supreme Court or the District Court - (a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and (b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner, the trial will proceed without a jury."
2 Section 12A Evidence Act 1929 (SA) dealing with children provides -
"There is no rule of law or practice obliging a judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if the child gave sworn evidence."

3 (1990) 170 CLR 573

4      See [348-349]

5      See [481]

6      :45 pm as a result of Dr Dunn's opinion referred to in [31]

7 (1984) 154 CLR 563

8      The written report of Dr Jane Edwards was received by consent.

9      See [307-327]

10     The accused repeatedly described the relationship in this way.

11     Conversations were recorded on a micro-cassette tape

12 (1998) 72 ALJR 1316

13The issue of the accused's credibility including his evidence about FAYS is dealt with further at [373-430]

14     See [53]

15     Elsewhere other major events on 15 June 1999 are discussed.

16     See [328-372]

17     being the facts referred to in [159-176]  both inclusive

18     See [373-430]

19     See [53] 

20     See [431-441]

21     See [442-449]

22    See  [442-449]

23     Throughout the transcript Jesse Clifford has been spelled "Jessie"

24     See [298]

25     See [188-277]

26     Harriman v The Queen (1988-89) 167 CLR 590

27 1977-78) 140 CLR 108 at 116

28 1981-82) 150 CLR 580 at 609

29 (1982-1983) 152 CLR 528 at 545-546; 556-557; 562-563

30 (1994-95) 182 CLR 461

31 (1994-95) 182 CLR 461 at 464-465 See also R v Nieterink (1999-2000) 76 SASR 56 at 62

32 (1988-89) 167 CLR 590 at 630-631

33     (1963-64) 81 NSW Weekly Notes 120

34     1973 [6] SASR 280

35     See [285-286]

36 (1999-2000) 76 SASR 56

37     See [193-202]

38    See [222-230]

39     See [233-239]

40    See [240-245]

41     See [15]

42     R  v O’Connor (1980) 146 CLR 64

43 Section 268 Criminal Law Consolidation Act 1935 (SA)

44     See [374-375]

45    See Appendix B

46     See [70-71], [323-327]

47    See [378]

48     See [408-409]

49     See [310-313]

50    See [211]

51State Rail Authority of New South Wales  v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306

52     See [413]

53     The more important instances are discussed elsewhere in these reasons. 

54State Rail Authority of New South Wales  v Earthline Constructions Pty Ltd (In Liq) (1999) 73ALJR 306

55    See [196-197]

56    See [198]

57     See [406-407]

58 Section12A of the Evidence Act 1929 (SA)

59    See [254-256]

60     See [253]

61    See [118-125]

62 (1990-91) 55 SASR 321

63    Elsewhere I have accepted Mrs Manikas’s account

64 (1984-85) 156 CLR 464 at 469-470

65     Wilson v The Queen (1991-92) 174 CLR 313

66Where the accused is referred to in this table it means the accused’s telephone.

67 Where Mrs Manikas is referred to in this table it means Mrs Manikas’s telephone.

68The evidence established that much if not all contact with Ms Hancock was drug related.  It was common ground that the calls, with possibly one exception, were made by Mrs Manikas.

69Where “Mrs Manikas” is referred to in this table it means Mrs Manikas’s telephone.

70Where “Ms Hancock” is referred to in this table it means Ms Hancock’s telephone.