R v Gardiner - [2015] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GARDINER
[2015] SASCFC 107
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
5 August 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant was convicted of murder by trial by Judge alone in this court.
The appellant and the victim were in a domestic relationship. The appellant and the victim had camped in the appellant’s car on the side of a dirt road on the Easter weekend. The body of the victim was found in the car two days after she died once the police had been alerted by a friend of the appellant.
Evidence was led at trial as to the nature of the injuries that had been suffered by, and caused the death of, the victim. A medical expert gave opinion evidence concerning how the injuries occurred and the likely cause of death. The trial Judge accepted that evidence and concluded that the victim had been subjected to a severe beating. She was further satisfied that the appellant intended to cause grievous bodily harm.
Held (Per Kourakis CJ, Blue and Stanley JJ agreeing):
1. The trial Judge misstated part of the evidence of the medical expert but did not reason from that misstatement to reach her ultimate conclusion.
2. The trial Judge did not err in finding that the victim had suffered a severe beating. On all of the evidence the trial Judge did not err in finding that the injuries were inflicted with the requisite intention.
3. The trial Judge did not make impermissible use of post-offence conduct of the appellant.
4. The applicant’s grounds of appeal were reasonably arguable. Permission to appeal is granted.
5. Appeal dismissed.
R v Gardiner [2013] SASC 206, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Intention", "Murder", "Intention to commit grievous bodily harm", "Circumstantial evidence", "Medical evidence", "Relationship evidence", "Post offence conduct"

R v GARDINER
[2015] SASCFC 107
Court of Criminal Appeal: Kourakis CJ, Blue and Stanley JJ

KOURAKIS CJ: Over the Easter long weekend in 2011 the applicant and his then girlfriend, Ms Towner, “camped” in Ms Towner’s car on the side of a dirt road near Strathalbyn. Ms Towner died sometime after 8.30am on Saturday 23 April 2011 and before 11.40am on Sunday 24 April 2011. The applicant and Ms Towner were aged 30 and 29 respectively at the time of Ms Towner’s death.
On Sunday 24 April 2011, the applicant made several attempts to call Mr B and finally spoke to him at 11.40am. He told Mr B that on waking up he had found Ms Towner motionless and with blue lips. He told Mr B that he had called for an ambulance but that none had arrived. In fact, the applicant never called for an ambulance. Mr B and another occupant of the house, Ms S, urged him to check Ms Towner for a pulse.
Two days later, on Tuesday 26 April 2011, the applicant arrived at the home of Mr B in Strathalbyn after walking from the spot where he had parked his car. When asked by Mr B where Ms Towner was, the applicant said that he had a car accident and described the general position of the car. The applicant told Mr B that Ms Towner had walked home a few days earlier and that she was in a bad way. Mr B went to the position described by the applicant and found the car without any difficulty by following the clear directions given by the applicant. Mr B found Ms Towner’s body in the reclined front passenger seat. She was wearing tracksuit pants that were partially removed and a singlet top which was worn inside out. Her body was covered with a blanket.
The police arrived at the scene in the early afternoon of Tuesday 26 April 2011. The police found two empty wine bladders (two and four litres respectively) and five 375ml Woodstock cans near the car. A port carton was also located in the vicinity.
A post mortem examination of the deceased’s body revealed multiple external and internal injuries consistent with the application of blunt force trauma. The pathologist attributed her death to blunt head, chest and abdominal trauma, the latter including a laceration to, and bleeding from, the deceased’s liver.
The applicant was convicted of the murder of Ms Towner on his trial before a Judge alone. On a previous trial the applicant had been convicted of murder on the verdict of a jury which was set aside on appeal. The applicant did not give evidence at either trial as to what had transpired over the weekend nor of the events which led to Ms Towner’s death. At trial there was no real contest that the injuries suffered by Ms Towner were caused by the applicant. The major issue at trial was the capacity of the evidence to prove that the applicant inflicted the injuries which caused death with an intention to cause grievous bodily harm.
The applicant appeals on three grounds. He contends that the verdict of guilty of murder was unreasonable and not supported by the evidence in that the evidence did not prove the requisite intent beyond reasonable doubt. In the alternative he contends that if the evidence was sufficient to sustain a conviction, nonetheless there was a miscarriage of justice because:
·the Judge mistook the evidence of the pathologist, Dr Langlois, about the force required to cause the injury to the deceased’s liver (ground 2); and
·the Judge misused evidence of the applicant’s post-offence conduct including failing to call an ambulance and falsely claiming that he had (ground 3).
I would grant permission to appeal but dismiss the appeal. On reviewing the evidence of Dr Langlois I am satisfied that the number and nature of the injuries inflicted, in the context of the pre-existing violent relationship, shows beyond reasonable doubt that the applicant intended to cause Ms Towner grievous bodily harm.
On the second ground of appeal, I accept that the Judge’s reasons mistakenly record that it was Dr Langlois’ testimony that severe force was required to cause the liver injury when, on the face of his testimony, it could have been caused by moderate force. However, ultimately, that particular evidential issue is of little moment and was not a material step in the Judge’s reasons. The Judge found that the applicant had the requisite murderous intent on the basis of inferences drawn from the totality of the injuries to Ms Towner and the degree of force required to inflict those injuries. On that reasoning process I am satisfied that such differences as there might be between Dr Langlois’ descriptions of moderate and severe degrees of force could not have affected her Honour’s conclusion.
On the third ground of appeal, I would hold that the Judge correctly used the applicant’s false claim to have called an ambulance as disclosing that he was aware how badly Ms Towner was injured and his actual failure to call the ambulance, notwithstanding that awareness, as supporting an inference that he had beaten Ms Towner with the requisite intention.
The Relationship Evidence
The applicant and the deceased commenced their relationship in 2010. After the commencement of that relationship, Ms Towner was often seen with bruises, black eyes, cuts and abrasions. The applicant was charged with assaulting Ms Towner in late 2010 and was taken into custody. He was released on 7 January 2011 only to be taken into custody again on 18 February 2011 on a further charge of assaulting Ms Towner. On his release following that arrest, he went to live with Mr B and others at South Terrace in Strathalbyn.
On 5 April 2011, the applicant was taken into custody again for breaching his bail but released several days later on 8 April 2011. Even though it was a condition of his bail that he not approach Ms Towner, he and Ms Towner resumed their relationship. It was because the other occupants of the South Terrace home refused to allow the applicant and Ms Towner to stay together in their home in breach of his bail conditions that the applicant and Ms Towner decided to camp on the side of the road over the Easter long weekend.
Dr Langlois’ description of the injuries
By reason of both the nature of the prosecution case at trial and the grounds of appeal, it is necessary to summarise the evidence of Dr Langlois at some length.
Dr Langlois arrived at the scene on 26 April 2011 when it was darkening but artificial lighting had been brought in. He was at the scene for one to two hours. Dr Langlois observed indications of decomposition and no signs of rigor mortis, suggesting to him that death had occurred more than 72 hours earlier. Dr Langlois testified that it was possible the deceased died outside the vehicle and was later placed inside.
The injuries observed on the deceased by Dr Langlois were summarised in the Judge’s reasons for verdict as follows:[1]
[1]    R v Gardiner [2013] SASC 206 at [27].
[27]The number of injuries observed on Ms Towner’s body was indeed significant. After excluding a significant number of potential injury sites which were also consistent with the effects of decomposition, Dr Langlois was satisfied that the following injuries he documented were true injuries or the effects of injuries as opposed to artefacts of decomposition:
2a.     Spotty haemorrhage within the right temporalis muscle;
2b.     Haemorrhage 3 centimetres in diameter on reflection of the scalp in the midline of the superior aspect of the forehead;
2c.     Haemorrhage 3 centimetres in diameter under scalp above left ear;
3.     Thin film of subdural haemorrhage over brain with subarachnoid blood. Multifocal APP staining in the anterior, middle and posterior corpus callosum;
4.     Bruising 1.5 centimetres in diameter overlying the left angle of the jaw;
6a.     Haemorrhage into the superior third of the left sternocleidomastoid muscle;
6b.     Haemorrhage 2.5 x 2.5 centimetres in the clavicular head of the right sternocleidomastoid muscle;
6c.     Old fracture of the right greater horn of the hyoid bone with overlying haemorrhage 1 x 2 centimetres;
8a.     Haemorrhage 1 centimetre near the insertion of the 3rd rib into the right side of the sternum;
8b.     Haemorrhage, 1 centimetre, around the right 3rd rib in the mid-clavicular line where the rib was fractured;
8c.     Fractures of the 5th to 7th ribs in the right anterior clavicular line;
8d.     Haemorrhage over the 6th and 7th ribs in the right anterior clavicular line;
8e.     Haemorrhage in the intercostal muscles between the 8th to 10th ribs in the left anterior axillary line to the right mid-axillary line in the inner aspect of the thoracic cage in the area 8 x 13 centimetres;
8f.     One litre of blood with some clot within the abdominal cavity;
8g.     Focally full-thickness 7 centimetre laceration of the inferior portion of the left lobe of the liver, 2.5 centimetres left of the midline;
8h.     Around region of retroperitoneal reflection of descending colon before the origin of the sigmoid colon haemorrhage 2 x 8 centimetres;
8i.    Deep haemorrhage overlying pubic symphysis extending into the left and right iliac fossa regions;
9.     Ill-defined dark discolouration in area 4 centimetres across around the medial epicondyle region of right elbow with 1 x 2 centimetres area of abrasion;
10.     Subcutaneous bruising 1 centimetre under skin of metacarpophalangeal joint (knuckle) right index finger;
11.     Over superior aspect of left shoulder green area 3 x 2 centimetres with subcutaneous haemorrhage;
13.     Ill-defined green discolouration of posterior left upper arm, immediately above elbow;
14.     Around mid-height of left forearm on flexor surface orange-brown discoloured area 3.5 x 1.5 centimetres;
15.     On the anterior and lateral aspects of the proximal half of the right thigh purple areas 2 centimetres to 4 centimetres across;
19.     On lateral aspect of the right ankle 3 centimetres in diameter red area;
24.     Red discolouration of the skin and parchmented abrasions over the proximal two-thirds of the anterior aspect of left lower leg;
25.     On lateral aspect of mid-height of left lower leg 10 centimetre vertical abrasion;
27.     On anterior aspect of left ankle 0.1 x 0.3 centimetre abrasion;
29a.   Bruising 2.5 centimetres in diameter under skin, above top aspect of right shoulder blade;
29b.   Bruising 9 x 9 centimetres under skin between shoulder blades; and
29c.   Broad band of bruising under skin of back across the width of the flank (between the lower costal margin and top of the pelvis).
Dr Langlois gave the following evidence about those injuries.
Injury 2A was a spotty haemorrhage in the underlying muscle to the right side of the scalp but no external injury site was visible. It was a blunt trauma injury which can be caused by an object hitting the head. Mild to moderate force is sufficient to cause an injury of that kind.
Injury 2B was a three centimetre haemorrhage which represented bruising in the scalp to the midline of the frontal part of the skull. There was no associated external injury. There was evidence of acute inflammation just under the skin. Mild to moderate force is required to cause such an injury, which could result from a blow or a fall in which the head strikes an object.
Injuries 2A and 2B are on different planes from each other and it is therefore unlikely they were caused by the same application of force unless the implement used was somehow curved and went around the head or if the head bounced from one object to another during a fall. Injury 2B occurred from 10 minutes to one to two hours prior to death.
Injury 2C was a three centimetre in diameter bruise to the head. Mild to moderate force blunt trauma is required to cause an injury of that kind. It is on a different plane to injuries 2A and 2B. Injuries 2A, 2B and 2C were not caused by a single impact. A minimum of two impacts, more probably three, was required.
Injury 3 is a neuropathological finding of injury inside the cranial vault. The location of the staining in the corpus callosum of the brain indicates that it was not the product of natural disease. There was bleeding on the surface of the brain (a subarachnoid haemorrhage) and there was also some bruising over the surface of the brain but underneath the lining of the skull (a subdural injury). The subdural haemorrhage was small. There was no bleeding in the brain itself. The severity of the injury which caused the bleeding could not be determined. Injury 3 could be caused by shaking the brain.
The subarachnoid haemorrhage confirms some form of traumatic brain injury but it does not identify the mechanism.
A subdural haemorrhage may be caused when the brain becomes bruised and torn and bleeds in the space around it. The pathology report excluded a cause of that kind. The other mechanism is tearing of the vessels running between the brain and the dura which is usually caused by either an application of force to the head or by a person falling.
The multi-focal staining in the corpus callosum, the subarachnoid haemorrhage and the subdural haemorrhage all indicate blunt head trauma. They could have all been caused by one event, such as a person falling backward onto a reasonably hard surface striking the head. Injuries 2A, 2B or 2C may have been responsible for the neuropathological findings but it is not possible to be definitive as to whether they were or were not. Much would depend on how the head was struck and its subsequent movement.
Injury 4 was a grey/green area of bruises, 2.5cms in diameter over the left angle of the jaw. It was caused by mild to moderate blunt force trauma. It is unlikely to have been caused by a fall because that area of the jaw is protected but it could have been caused by walking into an object.
Injury 6A is an area of bruising in the superior upper part of the left sternomastoid muscle, which is the muscle in the side of the neck underneath the ear. A blunt force trauma injury to the neck was its likely cause. Manual compression of the neck, a blow to the neck, or running into an object are possible causes.
Even though running into an object like a branch is a possible, but unlikely, cause of injuries 4 and 6A; the appearance of the two injuries is more typically associated with compression of the neck.
Injury 6B is an area of bleeding 2.5cm x 2.5cm into the clavicular head of the right sternomastoid muscle. It is a blunt force trauma injury. Compression of the neck was the most likely cause. It is possible for injuries 6A and 6B to have been caused by one application of force depending on the size of the person’s hands. Injuries 6A and 6B can also be caused by a very unskilled person feeling for a pulse. However, to leave bruising the attempt must have occurred during life unless the person was in a position where the head was below their heart for the blood to pool in those areas.
Injury 6C is a fracture of the right greater cornu of the hyoid bone with a 1cm x 2cm overlaying haemorrhage. It appeared to be an old injury, in the order of a week or so, and possibly even longer, but most probably after February 2011. The damage to the hyoid bone would affect a person’s ability to speak. There may be swelling to the area but given the depth of the neck muscle it may not be noticeable. A compressive equivalent to a three kilo weight is required to fracture the hyoid bone. That type of injury is commonly associated with compression of the neck by hand or by ligature.
Injury 8A is an area of internal bleeding one centimetre in diameter near the third right rib where it meets the sternum and the breast bone. No injury was visible on external examination. It was caused by blunt force trauma, a blow or some sort of force distribution over the chest that resulted in bruising. Mild to moderate force was required.
Injury 8B is an area of internal bleeding one centimetre across around the right third rib in the mid clavicular line associated with a fracture of the third right rib. Moderate to severe force was required to cause the fracture. Blunt force trauma directly to that point could have fractured the rib, but ribs, particularly in the mid clavicular line, may be fractured by generalised compressive force to the chest of a kind applied in an attempt at resuscitation. Resuscitation involves moderate to severe force.
Injury 8C is a cluster of three fractures of the fifth, sixth and seventh ribs on the right anterior clavicular line nearest to the breast bone. The fractures are in a line one beneath the other. There was no bleeding observed in the area which may indicate that the injury occurred after death.
Injury 8D is a collection of areas of bleeding over fractures of the sixth and seventh right ribs on the anterior clavicular line. The pattern of rib fractures with interspersed haemorrhage is not uncommon after resuscitation force has been applied to the chest to cause the depression of the sternum causing the ribs to fracture. However, the fractures may also have been caused by a series of blows or falling forward against an irregular surface.
Injury 8E is a bruise in the line of the armpit and nipple on the side of the chest. For that injury to occur during a fall, the person must have their arm outstretched unless the person falls onto an irregular surface. Injury 8E is not in the same plane as injuries 8A to 8D so it could not have occurred during the same incident as it is off to the side of the body.

Injury 8F is one litre of blood which bled into the abdominal cavity from the liver laceration, injury 8G. The liver is a very vascular organ which bleeds freely when torn. Loss of blood in the quantity seen in this case would have a progressive effect on the deceased’s state of consciousness.
Injury 8G is a seven centimetre full thickness laceration (or tear) of the lower portion of the left lobe of the liver, 2.5cm to the left of the mid line. It is a full thickness tear in that in some parts it traverses the full thickness of the liver. In a healthy state the liver is completely covered and protected by the rib cage. Injuries like injury 8G are caused by blunt force, typically by compression of the chest. Injuries of that kind can be caused by poorly skilled attempts at resuscitation. It is generally thought that severe force is required to tear the liver.
A laceration of the liver can result from a very broad application of force over the whole chest or abdomen if there is sufficient pressure over the liver which effectively traps it between the spine and something hard. A laceration can be caused by a direct blow, a punch, a kick or a stomp to that point. The broader the area over which the force is applied, the greater the force required to produce this injury. Conversely, the smaller the area of pressure, the less force is required. Even a small tear of the liver requires moderate to severe force. If the laceration was caused by a single blow which compressed the liver between the abdominal wall and the spine, severe force was required.
Greater force is required if the muscles are tense and conversely, if relaxed, for example during a loss of consciousness, a lesser degree of force is required.
There was no external injury to the abdomen correlating to the tear in the liver. Some external sign would be expected if force were applied over a confined area by a punch or kick. However, because the wall of the abdomen is quite soft and flexible it is possible to produce a blow of sufficient force to damage internal organs without leaving signs of bruising. That is particularly so if the victim is unprepared, intoxicated, or unconscious. If the injuries were caused by force applied locally to the back it would have caused external bruising. A simple fall to the ground would not have caused the injury to the liver. A fall down multiple stairs could cause an injury of this kind, as could a forceful fall against an object that projects outwards.
A bruise caused by a blow to the liver may initially be contained by the capsule but after a period of time a local accumulation of blood with associated inflammation can tear the liver. Bruising to the liver may be caused by blunt trauma of moderate force. For the purposes of the second ground of appeal in particular, it is best at this point to set out Dr Langlois’ testimony on the force required to bruise the liver on the one hand and to tear it on the other:
QCan I go back to the bruising of the liver, perhaps start with this: what sort of mechanism might cause a bruising of the liver.
AWould be blunt force trauma.
QWhat degree of force could do that.
ATo be honest I am not altogether sure because we only deal with lacerations of the liver. Bruising of the liver I am not sure, but I would certainly put it in the order of at least moderate force.
QCan I move in to the tearing of the sack, no matter how small that tear may be. What sort of force would be required to do that.
AAnd then the published information I have indicates that is moderate to severe. Really to obtain a laceration of the liver of this type, where it appears that the liver has been compressed between the abdominal wall and the spine would be a severe force.
HER HONOUR
QDid you mention yesterday or from what are you saying now about the state of liver with reference to any bruising, did you observe any bruising of the liver or was it just the tear.
AIn fact my observation was just of a tear. The blood into the falciformed liver might be interpreted as bruising but my interpretation was in fact that was blood tracking from the laceration.
XN
QIs there any way that you can tell on your observation whether that injury began as a bruise or a small tear or indeed as a major tear.
ANo. All I get at the end is the end product.
Dr Langlois explained that the tear can become greater as a person moves or with breathing. A liver injury can be variable and the rate of accumulation of blood therefore cannot be predicted. Once torn, the accumulation of blood may enlarge the tear. An inflammatory reaction may weaken the liver and promote expansion of the tear. It is not possible to say from the tear to the liver whether it began as a bruise, as a small tear or as a major tear.
Dr Langlois opined that it was certainly possible in this case for there to have been a delayed rupture or tear of the liver. The deceased may have laid herself down and fallen into a sleep. The accumulation of blood within the liver capsule may then have caused a major tear that was sufficient to cause death.
Injury 8H is an area of haemorrhaging over the descending colon on the lower outer portion of the left side of the abdominal cavity measuring 2cms x 8cms. No inflammatory reaction was seen on microscopic examination. Blunt force trauma to the abdomen and chest such as a blow, a punch or a kick or a diffuse compressive force would produce the injury to the colon. This injury is unlikely to have been associated with a resuscitation effort as it is too low on the abdomen. Moderate to severe force would be required to cause Injury 8H because it is a deep injury to the abdomen.
Injury 8I is bruising into the tissue overlying the pubic bone. Because it was a diffuse injury, it was not measured. It was a deep haemorrhage underneath the overlying fatty tissue. Blunt force such as a kick, blow or a punch could have caused it. A compressive mechanism may also have caused the injury. No external bruising was apparent for this injury.
A heavy compressive force applied when a person is lying on their abdomen could cause injuries 8A to 8I. If the downward pressure were dispersed over a wider area, greater force would be required whereas if it was a limited area then less force would be required.
When asked if external bruising would be expected if the abdominal injuries were caused by a punch or punches, Dr Langlois answered:
You certainly would in most cases, although it will depend to some extent how lax the abdominal tissues are. If a person was completely relaxed, unconscious or in some way impaired because the abdominal wall would be so lax it is possible and certainly well documented in the forensic literature to inflict a blow on the abdomen to cause an internal organ damage but without leaving a bruise. It can occur, but from experience when someone has an accident or something happens or strikes the abdomen usually we see a bruise.
Injury 9 is bruising and a graze to the right elbow.
Injury 10 is bruising under the skin of the right hand over the knuckle measuring one centimetre in diameter. There was no associated external sign of injury. Bruises on the knuckle tend to be associated with offensive type action. A person striking out in order to punch, a hand flailing to the ground or being struck by someone could all produce the injury. There were no other injuries on the body that were associated with offensive type action.
Injury 11 is bruising to the top of the left shoulder.
Injury 13 is bruising to the upper left arm just above the elbow measuring 7cms x 3cms.
Injury 14 is bruising to the left forearm. Possible causes are blunt force trauma such as a blow or the arm hitting an object and a grip. There is no correlation between injuries 14 and 13.
Injury 15 is an area of bruising on the front outer side surface of the right thigh measuring 2cms by 4cms across with associated small grazes measuring .5cms across. It was caused by blunt force trauma. The trees in the area are of a height which might produce the injury if brushed against.
Injury 19 is a three centimetre injury to the right ankle with underlying bruising caused by blunt force trauma such as a kick or knock. The outside of the ankle is exposed and is very easily struck against any sort of object.
Injuries 24 and 25 are bruises and abrasions with red discolouration across the lower leg.
Injury 27 is a 1.1cm by .3cm graze in an area which is exposed and might be knocked against objects.
Injury 29A is bruising 2.5cms in diameter over the upper part of the right shoulder blade.
Injuries 15, 29A and 29B required the application of mild to moderate force.
Injury 29B is not in the usual area one would expect to see injury from a fall or injury from diffuse pressure. It is underlying the spine where there is much support allowing tissue to be crushed and damaged thereby producing a bruise. The shoulder blades would need to be pushed forward to expose the area if it were caused by diffuse pressure.
Injury 29C is bruising to a broad band of tissue across the flank between the lower margin of the chest and the top of the pelvis. It extends for 17cms from above the buttocks up towards the shoulders. The bruising is 3cms wide. Apart from an accentuated area of bruising near the spine, there was patchy bruising in a band across the small of the back.
For a broad injury across the back, like injury 29C, a broad compressive force is necessary. One example is being run over by a vehicle with the wheel going over the body. Another is with the person lying on his or her front and a heavy object, a log or a person, falling or jumping and landing across the body. The injury could not have been caused by the person falling under his or her own body weight. A small fall would not produce an injury to that area because it is protected by the curve of the spine and would require a fall against a projection. If there were a log on the ground onto which the person fell, bruising across that band might be caused but a simple fall would not produce it.
Dr Langlois’ opinion on the cause of death
As to the cause of death, Dr Langlois’ evidence was as follows.
The cause of death was blunt head, chest, and abdominal trauma. Death resulted from the interaction of the trauma sustained to the head, chest and abdomen. No single injury was necessarily and unequivocally fatal of itself. There is no direct pathological evidence that the head injuries of themselves caused death. The head injuries, of themselves, are an unlikely cause of death. That possibility is merely speculative.
Strangulation can be eliminated as a cause of death because there are no petechia. If the compression of the neck occurred before the liver injury, it probably would not have had significant effect.
Dr Langlois initially testified that the loss of one litre of blood would not necessarily cause death in a person lying flat if he or she were rendered timely medical assistance. A person of the deceased’s weight would be expected to have three and a half litres of blood. For a person of that weight, a loss of 20 per cent of blood volume becomes significant and if untreated can result in death. In this case, the loss of blood was sufficient to cause death on the assumption that the loss of blood in the abdomen occurred whilst reclining in the vehicle. Ultimately, Dr Langlois testified, “Well, in fact I believe it [the loss of a litre of blood] was enough to cause death”.
If the deceased were sitting up and in shock, her brain would not receive sufficient blood which may exacerbate the effects of her injuries.
If the laceration injury to the liver was the substantial cause of death, the period of time between the injury and death could range between 10 to 15 minutes and several hours. It is difficult to be precise about the outer limit if the liver may have contained the haemorrhage for a while before it burst but it is certainly not several days. In all probability the deceased did not survive the liver injury by more than 12 hours.
The deceased’s blood alcohol level was about .143 per cent whilst she was alive. Tetrahydrocannabinol was also detected on blood analysis but that indicated only that the deceased had smoked cannabis at some point prior to her death.
Dr Langlois’ opinion on the possible injury causing mechanisms
All of the injuries save 6C occurred around the same time which was at least two and possibly up to six hours prior to her death but Dr Langlois could not exclude that there may have been an earlier altercation and then the subsequent terminal altercation.
As few as two applications of force could cause injuries 2A, 2B, 2C and 3.
Injuries 6A, 6B, 4 and 11 could have all been caused by strangulation or compression of the neck but this is a different mechanism to the head injuries.
Dr Langlois testified that injuries 8A to 8I, 9, 13, 29A, 29B and 29C all could have been caused by a single actional mechanism. For example, if a person is piggy backed by someone and is forcibly thrown backwards so that the victim is beneath the other person. The fall would need to have been onto a substantially hard projecting surface to cause the bruise injury 29C. However, there were no injuries noted externally or on reflexion of the skin to the back of the head. If a person were to fall backwards, the back of the head is likely to hit the ground.
Absence of bruising to the back of the head does not imply an absence of injury. There may be impact without external signs of bruising, or with the fall back scenario if her head was forward it would not actually strike the ground. However, the deceased did suffer a significant head injury so it is possible that the deceased fell on grass which was soft enough to avoid bruising.
Dr Langlois postulated as follows about injury 29C being caused by falling onto the car:
Q.    You have P4 in front of you.
A.    Yes.
Q.Can I take you to photograph No.13 first of all, I am really in this photograph asking you to observe, as it were, I think that they used to be called fenders, the curve of the car as it comes from the side up to the bonnet of the car.
A.    Yes.
Q.Indeed as we go back along the side of the car seen there, there again appears to be somewhat of a curve from the door as it goes into the window.
A.    Yes.
Q.Indeed as we go further back there is the area where the back of the car, the back side of the car, becomes the boot, that curvature there.
A.    Yes.
Q.Could an application of force to the front of her body cause the bruising observed in 29C if she, as it were, was up against that curved area of the car.
A.Yes, because obviously this is the lower back which is a curved inward area and if a person were - effectively to apply that curvature against the curvature on the vehicle they would sort of match together and potentially produce this broad impact. But of course it could then require a substantial impact against that curved surface. So simply falling back against the car would not produce this bruising. It would require, for example, running backwards at speed and tripping or being forcibly held.
Q.I suppose that extra momentum that you would have if you were running back and fell against the car might be provided by an object moving towards you at an equal momentum.
A.Yes.
Q.So if you were pressed up against the car and an object with some momentum were to come against you, might that produce that bruising.
A.Yes, it could.
Q.And indeed might that be done by quite a diffused pressure.
A.Yes.
Q.Such as the whole of another person's body coming up against the front of her body. A. Yes.
HER HONOUR
Q.    Could that injury be caused by someone falling on top of you, 29C.
A.It could if the person was lying, again, face down but the problem is you have to think of a part of the anatomy or some part of a body falling on top that would inflict that broad band. Really, the only part I can think of if the person were to fall in such a way that, for example, their entire lower legs were to land across them. To just simply fall across someone's body, because the person's body is usually soft and broader than that, I cannot really envisage how the one person could fall onto another producing this very broad band unless, as I say, it was the lower legs. Maybe if it was a whole side of their body against, but then again you see you have their arms, it wouldn't produce this broad band, it would be narrower.
Another possible mechanism for Injury 29C canvassed with Dr Langlois was being run over by a car tyre over the small of the back. Dr Langlois opined that it is harder to incorporate 29A, 29B, 9 and 13 into the tyre scenario. If the deceased’s body were run over by the car, there would possibly be tyre marks on the skin, and possibly dirt and/or other evidence on the body if force were applied whilst the deceased was lying down.
There was nothing on the deceased’s face, nose and mouth or ears consistent with her being on the ground in that scenario. Dr Langlois regarded the “run over by a car” scenario to be speculative. Moreover, if the deceased’s arms were above the body in that scenario, the tyre would have gone over the arms.
Dr Langlois accepted that a fall backwards during a struggle with the other party falling on top could accommodate the back bruising 29C, the liver injury and all of the injuries 8A-8I. However, much would depend on the build and weight of the person falling.
Dr Langlois’ testimony on the falling backward mechanism was as follows:
QA fall backwards during a struggle with the other party falling on top could accommodate that back bruising and the liver injury and, as you said, all of the eight injuries except for 8E, I think it was.
AEven 8E could be incorporated. Obviously it would depend on the height and build of the person who falls backwards. If it is a particularly large and heavy person, just a simple fall backwards alone may be enough. If the person who is doing the supporting falls backwards is short and slight, it would require a projected fall backwards such as running backwards and tripping to produce the injuries, including the laceration of the liver.
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QWould it be fair to say that most of the explanations as to the mechanism or the mechanisms that caused those injuries that you observed are speculative.
AIn terms of the three possibilities: lying face down and run over; the falling backwards in the koala hug situation; or multiple applications of blunt force, they are equally speculative and - or the pathology or the post-mortem findings, none of that will address which of those speculations is more likely or less likely.
Dr Langlois agreed that all of the injuries to the deceased’s lower legs may have been caused by moving around in the dark in this environment. The lower limb injuries are relatively trivial and innocuous.
According to Dr Langlois, there were a minimum of four events and there were two possible mechanisms for each event, namely blunt force trauma and compressive force.
However, Dr Langlois explained that there were no pathological findings on autopsy which excluded the possibility that the injuries were caused by separate blows or which required a conclusion reducing the causes of injuries 8A-8I, 9, 13, 29A, 29B and 29C to a minimum number of events. The injuries could equally have been caused by multiple blows or strikes. There was no autopsy finding which necessitated grouping the injuries in any of the particular ways postulated in the course of his examination and cross-examination.
The Judge’s reasons
The Judge’s essential reasoning in support of her conclusion that the applicant inflicted the injuries causing death with an intention to cause grievous bodily harm are set out below. I have underlined the particular sentences on which the disposition of the second ground of appeal critically depends.
[36]In addition Dr Langlois observed that the liver had been lacerated. There was a seven centimetre tear which had gone through the full thickness of the liver (8g). In association with that laceration was about one litre of blood contained with the abdominal cavity (8f). Dr Langlois opined about two possible mechanisms for the cause of the liver injury. One was that it was a result of an application of compressive force over a larger area of the deceased’s body. The other potential mechanism was a more direct force such as a kick, punch or stomp. I consider that the effect of his evidence is that either of those mechanisms would have required the application of severe force.
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[45]He agreed in cross-examination that there was really no way of telling if the injury to the liver started as a bruise or a small tear but said that the end result was a major tear. In his view the presence of acute inflammatory reaction in the liver indicates that there was a period of time between the injury to the liver and Ms Towner’s death. Given the unknown variables involved, the pathologist was unable to be any more specific than to give a range of approximately at least one hour of survival up to 12 hours of survival after the infliction of the liver injury.
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[180]Having examined carefully the evidence of Ms Towner’s extensive injuries in the context of the whole of the evidence I find that each and every one of the scenarios put to the pathologist amount to nothing more than hypothetical speculation which gains no support from the evidence. The koala hugging the tree example in particular is mere conjecture.
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[174]The nature and extent of the deceased’s injuries are such as to exclude any reasonable possibility that they were inflicted in the course of the accused defending himself. At the time of her death Ms Towner weighed 54 kilograms. The accused weighed 90 kilograms. The accused sustained no serious injury. All the doctor observed on the accused on 26 April 2011 was minor scratches. For the reasons I have earlier explained I do not accept there is any reasonable possibility that the mark observed on the accused’s neck was a bite mark, notwithstanding Dr James’ rational concession on the basis of the material she then had. In any event I reject that possibility. It is preposterous, given Ms Towner’s behaviour on earlier occasions, to suggest that the most severe injuries observed on her torso were caused by the scenario put to Dr Langlois which he referred to as “the koala hugging the tree” scenario. The passage from Dr Langlois’ evidence explaining that scenario illustrates what a complex, choreographed scenario would have been required to produce those injuries from a fall in the manner suggested. In my view, there is not a shred of evidence to support that hypothetical scenario.
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[186]At the commencement of the trial the accused pleaded not guilty to murder but guilty to manslaughter. I infer from that plea that the accused admits responsibility for the first element of the crime of murder namely that he inflicted the injuries which caused Ms Towner’s death.
[187]Even without that admission the circumstantial evidence satisfies me beyond reasonable doubt that it was the accused who was the author of the injuries which caused the death of Ms Towner.
[188]I find beyond reasonable doubt:
·        The accused was the person who inflicted the injuries on Ms Towner on 26 August 2010, 18 February 2011 and on the other occasions referred to by the witnesses Sean Towner, Jesse Jeisman, Gail Hopkins and Sean Jones.
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·        The accused and Ms Towner left to go camping on Thursday 21 April 2011.
·        Ms Towner was still alive on Saturday morning 23 April 2011 at around 8.30 am when Mr McAnaney made his observations. I find that the accused and Ms Towner were alone camping near Strathalbyn for a minimum of two nights, namely Thursday and Friday night, before Ms Towner met her death.
·        Neither the accused nor Ms Towner returned to Strathalbyn to replenish alcohol stocks before Ms Towner died.
·        Ms Towner died sometime after 8.30 am on Saturday 23 April 2011 and before 11.40 am on Sunday 24 April 2011.
·        The accused was at the relevant time alcohol dependent and in the months leading up to the death of Ms Towner he regularly drank to excess to the point where he sometimes passed out.
·        The accused even when intoxicated and with a blood alcohol level as high as 0.3 has demonstrated an ability to perform conscious, voluntary and purposeful actions.
·        There is no reasonable possibility that at the time when the accused inflicted the injuries which caused Ms Towner’s death that he was in such a catatonic state due to alcohol and or drug consumption that his consciousness was impaired by self-induced intoxication to the point of criminal irresponsibility.
·        The accused spoke to Mr Brumfield and Ms Stevens at 11.40 am on Sunday 24 April 2011. He told them that the lips of the deceased were blue and that she had no pulse. He told them he had called an ambulance and that it had not arrived.
·        No call to the ambulance was ever made by the accused.
·        The deceased sustained multiple injuries referred to in P27 described by Dr Langlois.
·        The injuries which caused the death of Ms Towner were caused by applications of force ranging from mild to moderate to severe.
·        The injuries were not caused by a single application of force but by multiple applications of force.
Conclusion
[189]Ms Towner suffered multiple injuries to her head, neck, torso, front and back. Leaving aside the minor cuts, abrasions and bruising on the legs, a number of those injuries must have been caused by moderate to severe applications of force including in particular the rib fractures and the injury to the liver and colon. As I have noted earlier the injuries to the head involved injuries on three different planes. Ms Towner’s death was caused by a combination of the severe injuries which included the head injuries, the rib fractures and the lacerated liver. The most significant was the lacerated liver and there was evidence that the deceased had lost at least one litre of blood. In the end I consider that an application of plain common sense to the evidence requires rejection of the hypothetical scenarios put to Dr Langlois including in particular the koala hugging the tree scenario as a reasonable possibility explaining the bulk of the injuries seen on Ms Towner’s torso. As far as I have grasped it, the law in this State has not yet evolved to the point where trial judges sitting alone, are no longer permitted to apply common sense to the evaluation of the evidence before them. In my view, having assessed the whole of the evidence, the injuries seen on Ms Towner are inconsistent with anything other than a severe beating.
[190]I have considered whether the evidence raises a doubt in my mind whether the inference that the accused intended to cause grievous bodily harm should be drawn. Having considered the whole of the evidence it is my view, contrary to the submissions of Mr Vadasz, that I can draw that inference. It is my view that the natural inference arising from the nature and extent of the injuries observed on Ms Towner is that whoever inflicted them intended at the very least to cause Ms Towner grievous bodily harm. That inference arises from my finding beyond reasonable doubt that the injuries were caused by multiple applications of force including moderate to severe force.
[191]Even though the accused was likely to have been intoxicated at the time when he inflicted those injuries I am satisfied that he intended at the very least to cause her really serious bodily harm. There are far too many injuries on too many vulnerable parts of the body for there to be any reasonable possibility that even a man in a drunken state as the accused likely was, did not appreciate that his actions would cause really serious bodily harm to Ms Towner. A drunken intention to cause grievous bodily harm is nevertheless an intention. There is no reasonable possibility that in subjecting Ms Towner to what I find to have been a severe beating he did not intend to cause her grievous bodily harm. He may well have very quickly regretted his actions however that is beside the point.
(Emphasis added)
Ground 2 – Misapprehension of Dr Langlois’ evidence

I accept that the first underlined sentence in paragraph [36] of the above passages of the Judge’s reasons for verdict misstates the effect of Dr Langlois’ evidence. The summary of Dr Langlois’ testimony in [80] above shows that:
·the deceased’s liver may been bruised by the application of moderate force alone;
·that a liver once bruised and weakened by inflammation may, with the accumulation of blood, burst and tear; and
·that it was not possible to exclude that mechanism in this case.
Nonetheless, the underlined sentences thereafter show that the Judge did not reason from that misunderstanding of Dr Langlois’ evidence to reach her conclusion. Rather, her Honour relied on the combination of all of the injuries, which her Honour correctly found involved applications of force ranging from mild to severe, to reach the intermediate conclusion that the applicant severely beat Ms Towner. The Judge then inferred from the nature and extent of that beating that the applicant had intended, at the very least, to cause the deceased grievous bodily harm notwithstanding his intoxicated state.
It was, of course, a necessary finding to support the guilty verdict that the applicant had that state of mind at the time the liver injury was inflicted. However, the degree of force to cause the liver injury alone was not the only evidence from which his state of mind at the time that he inflicted the blow, or blows, or compression which caused the bruise or tear of the liver might be inferred. The intention with which that force was applied could be inferred from the totality of the evidence. In this case, such was the nature and extent of the beating inflicted by the applicant that an inference could properly be drawn that most, if not all, of the injuries, and certainly the injury to the liver, were inflicted with an intent to cause grievous bodily harm. The Judge so reasoned and the misapprehension of Dr Langlois’ testimony does not vitiate that reasoning process.
Ground 1 – Unreasonable verdict
The applicant submitted that the testimony of Dr Langlois concerning the minimum number of blows which may have caused the injuries precluded a finding beyond reasonable doubt that he intended to cause grievous bodily harm. In particular, the applicant submitted that:
-The injuries sustained by the deceased were caused by a minimum of four events and two mechanisms, being blunt force trauma and compressive force.
-None of the injuries would have prevented the deceased engaging in a struggle for some time , or would have prevented her from getting into the car, laying down in the seat, covering herself up and falling asleep, without her or the Applicant appreciating the serious consequences of the liver injury.
-The lower limb injuries were relatively trivial and innocuous.
-The most significant bleeding injuries were associated with injuries 8 (8g was the liver injury) and 29. The rest of the injuries were very minor in the scale of things and none were a direct cause of death.
-Leaving out injuries 2A, 2B, 2C as well as 6A and 6B, the areas of bruising excluding injuries 8 and 29 were minor and not of themselves life threatening.
Like the Judge, I reject that submission. Dr Langlois explained that there was no pathological finding which suggested the infliction of a minimum number of blows. Indeed, even though possible, the coincidence of circumstances necessary to account for the number of injuries by the postulated minimum number of mechanisms is most improbable. That is particularly so with respect to the “falling backwards” or “Koala hugging” scenarios which require a sequential series of choreographed like movements. The “running over” theory suffers from a lack of incidental findings which commonsense suggests would accompany such an event.
The injuries suggestive of an attempt at strangulation are important in this respect as are the two different blows to the head which caused injuries 2A, 2B and 2C. Those injuries are strongly indicative of conduct intended to cause grievous bodily harm. Equally, even though attempted resuscitation was conceded to be theoretically possible for some rib fractures and associated injuries, when viewed together with the other injuries including the nearby liver injury 8G, colon injury 8I and the pubic bone bruising, it is much more probable that all of those injuries were caused by blows struck by the applicant than by an attempt of resuscitation.
The inference of intent to cause grievous bodily harm which is available on the evidence of the injuries themselves is supported by the relationship evidence. The Judge explained the use of relationship evidence adduced by the prosecution in this way:
[87]I have used these findings when considering and determining whether any of the scenarios put to the pathologist in cross-examination about the cause or causes and the mechanisms by which the injuries were sustained by Ms Towner are reasonably possible.
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[89]The evidence supports the inference that the behaviour of Ms Towner deteriorated after she became involved with the accused. In particular, others observed her to be drinking more, and on the morning of Easter Thursday prior to leaving for camping Ms Towner was behaving in an uncharacteristic manner consistent with possible drug use.
[90]That there was a level of mutual attraction between the accused and Ms Towner is not in dispute. That attraction of course is no bar to any finding of guilt. However the text messages and the observations of others who saw them together in those months leading up to Easter 2011 demonstrate that the relationship was a volatile and unstable one, punctuated by episodes of violence which left Ms Towner on occasions with injuries which ranged from bruising and black eyes to far more serious injuries such as those observed in August 2010 and 18 February 2011.
[91]The fact that the relationship was punctuated by arguments and episodes of verbal abuse from both sides does not detract from the conclusion that after all these episodes it was Ms Towner who was badly hurt. Unfortunately it is common enough that a relationship between two people can be loving and affectionate for some of the time and become dysfunctional and violent at other times, especially when alcohol is put into the mix. The consumption of alcohol was most certainly a substantial cause of the volatile dynamic between the accused and Ms Towner.
[92]The text messages (D8) in particular illustrate the volatility in the relationship. It is evident that the communication in those texts was alternately loving and affectionate followed by doubt and insecurity and accusations from one to the other.
[93]I do not attach significance to the fact that no one ever witnessed any actual violence between the accused and Ms Towner. Others usually saw them only on occasions when Ms Towner was going to the meatworks or to Strathalbyn to pick up or drop off the accused. The fact is that most of the relationship was conducted in private, first at Canterbury Road and later in a clandestine fashion camping out at various places. It is a fact that there are rarely witnesses to what happens between a man and a woman in a relationship in the privacy of their own dwelling. What is clear however is that the interaction between the accused and Ms Towner could quickly change from loving and affection to volatile and abusive.
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[95]I make it clear that the evidence of the background relationship between the accused and Ms Towner insofar as it involves evidence of the accused’s discreditable conduct has not been used by me to reason that because the accused might have inflicted serious injuries on Ms Towner in the past, he is therefore more likely to have done so on this occasion or that he is of bad character and just the type of man to commit murder.
[96]The use which I have made of the background evidence insofar as it involves evidence of discreditable conduct is to explain the circumstances in which the clandestine relationship was conducted and to evaluate and determine whether any of the scenarios put to the pathologist in cross-examination to explain how the deceased may have died as a result of an accident or by misadventure are reasonably possible. This includes the scenario put to Dr Langlois involving Ms Towner jumping on the accused from behind and then falling over backwards (the koala tree hugging scenario).
There is no complaint about the Judge’s use of the relationship evidence. The Judge was right to use the relationship evidence against the possibility that some of the injuries were caused by attempts to resuscitate the deceased, by the applicant falling on her or by any other accidental or innocent cause. The relationship evidence also adds support to the inference that the applicant beat Ms Towner in anger and with an intention to cause grievous bodily harm which can be drawn from the testimony of Dr Langlois.
I am satisfied that the Judge came to the right conclusion. The transcript of the testimony given at trial and, in particular, the evidence of Dr Langlois, whose credibility and reliability was not in question, does not leave me with any doubt that the applicant inflicted the blows with an intention to cause grievous bodily harm.
Post Offence Conduct of the applicant
The appellant submits that the Judge erred in the use she made of the evidence of the applicant’s lie to Mr B that he had called an ambulance but it had not arrived and the applicants’ failure to alert any authorities to the deceased’s plight.
The appellant submits that the Judge wrongly regarded the appellant’s post‑offence conduct as being relevant to, and as strengthening the inference that he intended to cause at least grievous bodily harm to the deceased when he inflicted the fatal injury or injuries when that conduct could not logically affect the probability that he formed an intention to cause grievous bodily harm.
The Judge’s use of the post-offence conduct appears in the following passages:
[181]… I accept that the lies told to Mr Brumfield and Ms Stevens on Sunday 24 April 2011 about the manner in which Ms Towner met her injuries and then walked home, do not necessarily indicate a consciousness of guilt of the crime of murder. On the contrary, those lies are equally consistent with the accused not having intended to cause death or serious bodily harm, but waking up the next morning and realising that Ms Towner was either dead, dying or very seriously injured and panicking out of fear that he would be blamed for her death if not her murder.
[182]The lie told to Mr Brumfield and Ms Stevens about calling an ambulance but it not having arrived is, however, a telling indicator about the accused’s state of mind at the relevant time. In my view, that lie demonstrates that the accused well knew that the natural thing, the appropriate thing, for someone in the circumstances in which he found himself on that Sunday morning having found his partner either dead, dying or seriously injured, would be to summons immediately some help, medical or otherwise. Apart from the call to Mr Brumfield and Ms Stevens, the accused did nothing to alert anybody, be it the authorities or anyone else, or to obtain any help for Ms Towner between 24 April and 26 April 2011 when he was arrested
[183]Help was close at hand. There were farmers and farmhouses nearby. The campsite was less than six kilometres from Strathalbyn. The accused eventually must have walked that distance because he turned up at Strathalbyn on 26 April 2011 on foot.
[184]There was no call to the ambulance at any time by the accused over that weekend. There is no evidence that the accused did anything to proffer any assistance to Ms Towner other than make that call to his friends on Sunday morning. I find it inexplicable if not extraordinary that the accused, if innocent, did nothing for two days after plainly appreciating the gravity of Ms Towner’s plight.
[185]The accused’s failure over the two days to do anything to assist Ms Towner and his failure to alert any authorities whether medical or police of Ms Towner’s plight is part of the circumstantial evidence which I have taken into account when determining whether there is any reasonable possibility that the accused is innocent of murder.
The Judge’s decision not to use the lies told about the manner in which the deceased was injured shows that her Honour was well aware of the reasons, other than guilt, which might cause a person in the applicant’s position to lie about the circumstances in which the deceased was injured.
Even though paragraph [182] commences with a reference to the applicant’s lie about having called an ambulance, the remaining passages show that the Judge took into account the applicant’s reference to an ambulance as an admission that he knew the deceased needed urgent medical attention, and then his proven failure to call an ambulance to support the inference, drawn from the injuries themselves, that the applicant beat the deceased with an intention to cause grievous bodily harm. If the injuries had been sustained accidentally or without an intention to cause grievous bodily harm, for example, by some of the hypothetical events put in cross-examination to Dr Langlois like the “koala hugging” scenario, the strong natural human reaction would be to seek medical assistance. True it is that in those circumstances a person in the applicant’s position may be concerned that the police may wrongly suspect that he was criminally culpable. His prior police history with Ms Towner and his intoxication would magnify that concern. Nonetheless, the failure to seek medical attention is strongly indicative of guilty conduct and intention. The substantial improbability that a man in the applicant’s position who had not beaten the deceased with an intention to cause grievous bodily harm would fail to alert authorities to her critical condition added substantially to the circumstantial case against the applicant. If Ms Towner had been badly injured by falling over backwards, by resuscitation attempts, by being accidentally run over, or by any other largely non-intentional conduct, the most natural and common reaction of a person in the applicant’s position who was aware of the seriousness of her predicament would be to call for help. The significance in that context of the lie about calling an ambulance is that it is an implicit acknowledgement that the applicant was aware that Ms Towner was at some point over that weekend in need of urgent medical attention.
Conclusion
The applicant’s grounds are arguable and I would therefore give the applicant permission to appeal. However, for the reasons given I would dismiss the appeal.
BLUE J: I agree.
STANLEY J: I would give permission to appeal. I would dismiss the appeal. I agree with the reasons of the Chief Justice.