R v Gardiner

[2013] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v GARDINER

[2013] SASCFC 53

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Nicholson)

14 June 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - ACCIDENT

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - EVIDENCE - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - BURDEN OF PROOF

Application for permission to appeal against conviction of murder after a trial by Judge alone – deceased died during a camping trip with the appellant - prosecution case based on circumstantial evidence of injuries suffered by the deceased - evidence of discreditable conduct of previous assaults by the appellant on the deceased - defence case was that the appellant and the deceased were both intoxicated at the time the injuries were inflicted and the requisite intent for murder was not proven.

Whether the Judge erred in finding it proven beyond reasonable doubt that the appellant had the specific intent for murder - whether the Judge erred in his approach to intoxication and specific intent - whether the Judge erred in finding that the prosecution had excluded all rational hypotheses consistent with innocence - whether the Judge erred in refusing to consider a defence of self-defence - whether the Judge erred in admitting evidence of the appellant's discreditable conduct.

Held (Peek J; Nicholson J agreeing): Appeal allowed - the matter of the appellant's intoxication was directly relevant to whether he in fact had formed the requisite specific intent for murder - the trial Judge erred in approaching the issue of intoxication by reference to incapacity to form that specific intent - this erroneously suggested that the appellant had to be incapable of forming the relevant specific intent and also tended to cast an onus on the defence to establish intoxication sufficient to negative specific intent - the correct approach is whether the prosecution have established beyond reasonable doubt that the appellant in fact possessed the requisite specific intent - there was a spectrum of alternative rational hypotheses consistent with the absence of the required intent to be considered and a finding of guilt could not turn solely on the probability or improbability of any one suggested hypothesis - the Judge was correct in concluding that there was insufficient evidence of self-defence to require or permit a defence of self-defence to be left to the tribunal of fact - the trial Judge did not err in admitting the evidence of discreditable conduct - retrial for murder ordered.

Held (Vanstone J dissenting): None of the arguments mounted by the appellant have been made good.  Permission to appeal should be granted in relation only to ground 1 and the appeal should be dismissed.

R v Coleman (1990) 19 NSWLR 467; Barca v The Queen (1975) 133 CLR 82; Pemble v The Queen (1971) 124 CLR 107; R v Shinner (1993) 173 LSJS 384; R v Wingfield (1994) 176 LSJS 14; Spies v The Queen (2000) 201 CLR 603; R v Williams (1999) 205 LSJS 472; R v Esposito (1998) 45 NSWLR 442, applied.
Parker v The Queen (1964) 111 CLR 610; Thomas v The Queen (1960) 102 CLR 584; Broadhurst v The Queen [1964] AC 441; R v Kamipeli [1975] 2 NZLR 610; Viro v The Queen (1978) 141 CLR 88; R v O'Connor (1980) 146 CLR 64; R v Helmhout (1979) 1 A Crim R 464; Herbert v The Queen (1982) 6 A Crim R 1; R v Martin (1983) 32 SASR 419; R v Ball, Bunce and Calliss (1991) 56 SASR 126; R v Singh [1993] SASC 4109; Bellchambers v The Queen [2008] NSWCCA 235; Director of Public Prosecutions v Smith [1961] AC 290; R v Edwards [2009] SASC 233, discussed.
Stevens v The Queen (2005) 227 CLR 319; R v Gardiner [2012] SASC 160, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"incapacity", "specific intent", "intoxication"

R v GARDINER
[2013] SASCFC 53

Court of Criminal Appeal:  Vanstone, Peek and Nicholson JJ

1. VANSTONE J:     Following a trial by judge alone, the appellant was found guilty of the murder of his partner, Katherine Towner.  His application for permission to appeal to this Court originally contained only a ground asserting that the verdict was “unsafe and unsatisfactory and against the weight of the evidence”.  The application for permission was referred to this Court by a single judge.  Less than a week before the matter was due to be argued the appellant’s legal advisors sought to amend the Notice of Appeal to add an additional six grounds and to recast the original ground.  Permission to amend was granted.  All grounds raise complaints about the way in which the trial judge analysed the evidence and his reasoning.  The substantial complaint concerns the judge’s consideration and treatment of evidence of intoxication of the appellant as it related to proof of intention to kill or cause grievous bodily harm.  I consider that permission to appeal should be granted on the two grounds raising this issue, being grounds 1 and 6, but that the appeal should be dismissed.  In my view permission on the further grounds should be refused on the basis that they are not reasonably arguable.  My reasons follow.

   Background

2. Since December 2009 the appellant and Ms Towner had been in a relationship which had proved to be tumultuous.  They did not live together.  On Thursday 21 April 2011 they went away for the Easter weekend, travelling in Ms Towner’s motor vehicle and setting up camp in a position near Strathalbyn.  They left the Strathalbyn house of a Mr Brumfield, with who the appellant was staying, at about 10 o’clock in the evening.  On Monday 25 April at 11.40 am the appellant contacted Mr Brumfield, telling him that he had awakened in the morning to find that the deceased’s lips were blue.  Mr Brumfield next saw the appellant when the appellant arrived back at the Strathalbyn residence on the following day.  Mr Brumfield noted he had been drinking.  He asked the appellant where the car was and the appellant said it was smashed into a tree at an identified location.  The appellant said that the deceased had walked home a couple of days previously and that she was in a bit of a “bad way”.  Mr Brumfield and two others travelled to the site nominated by the appellant and found Ms Towner’s car with a tarpaulin covering it.  Upon discovering Ms Towner’s body within it they contacted the police. 

3. It was found that the deceased had suffered multiple blunt trauma injuries.  Upon autopsy it was found that drawing firm conclusions about the various injuries and about the cause of death was impeded by reason of uncertainty as to the time of death and the fact that the body had started to decompose.  The pathologist took a conservative approach to the expression of opinions.  The cause of death was given as blunt head, chest and abdominal trauma.  The pathologist could not say which injury, if one in particular, accounted for death, although he expressed the view that death would have occurred within an hour or two after the head injuries were sustained.  The body gave a blood alcohol reading of 0.14 per cent and there was evidence that cannabis had recently been taken.

   Summary of injuries

4. I now summarise the injuries for the most part in terms used by the pathologist in evidence.  I have used the numbers given by the pathologist to each injury.  The most significant injuries were the head injuries and the rupture to the liver, either of which were potentially fatal.

   Head

5. 2a: A spotty haemorrhage in right temporalis muscle (muscle used to clench jaw).  It was a diffuse injury indicating a ‘blow or impact to that area’ requiring a ‘moderate degree of force’.  It occurred ‘around the time of death’.  It was in a ‘protected area’ which would not normally be injured in a fall scenario.

6. 2b: A dark discolouration on forehead being a haemorrhage 3cm diameter, in midline of body.  It was a blunt force injury which would have required mild to moderate force.  It was unlikely to have been caused by the same blow as 2a, due to its being on different plane.  The injury would have occurred about one to two hours before death.

7. 2c: Bruising under the scalp on left side 5cm above ear and 3cm diameter would require mild to moderate force due to being a deeper tissue injury.

8. 3: These were neuropathological injuries consisting of a subdural haemorrhage (thin film of blood over brain), an intradural haemorrhage, and a subarachnoid haemorrhage (blood on surface of brain itself).  There was amyloid precursor staining at front, middle and back of brain.  These indicated blunt trauma.  This injury could have caused a period of unconsciousness.

9. 4: A green-grey area of bruising 2.5cm diameter at surface on left underlying corner of jaw. There was a 1.5cm diameter bruise in the tissue directly under the discolouration suggestive of blunt force trauma, most likely a punch, kick, or strike.  It was unlikely to be caused by a fall as the jaw is a protected area. It would have required mild to moderate force.

   Neck

10. 6a: There was bleeding and bruising in left sternocleidomastoid muscle (towards back of neck).  The most likely cause was compression of the neck by a ligature or hands.

11. 6b: There was a 2.5x2.5cm area of haemorrhage at bottom of right the sternocleidomastoid muscle.  This was most likely caused by compression of the neck or a ‘choke hold’.  It could have been sustained simultaneously with injuries 6a and 6b by ‘hands being placed around the neck’.

12. 6c: An injury to the hyoid cartilage with some blood over it, partially healed, an old wound caused days or weeks before other injuries listed.

    Shoulder

13. 11: A 3x2cm green area with underlying bruising over top and outer part of left shoulder. It would have occurred around the time of death.  It indicated blunt force injury.

    Torso

14. 8a: A haemorrhage 1cm diameter near third right rib, observed on internal examination. Deep bruising indicated moderate force.  It was consistent with having occurred around time of death.

15. 8b: A 1cm haemorrhage in the third right rib and an associated fracture would have been sustained at the same time.  Would have required moderate to severe force due to the fracture.

16. 8c: The fractures of the fifth, sixth and seventh ribs on the right near the breast bone. No corresponding haemorrhage.  Would have occurred at or around time of death.

17. 8d: Bleeding over 6th and 7th ribs.

18. 8e: Bleeding into the muscle between 8th and 10th ribs on left side, over an area measuring 8x13cm and showing an inflammatory reaction.  Caused by blunt force located in an ordinarily protected area.

19. 8h: A haemorrhage around the colon measuring 2x8cm. There was no corresponding bruising.  Likely caused by blunt force.

20. 8i: An area of deep haemorrhage about 5x6 cm across overlying the pubic bone and extending inside indicating moderate blunt force.  Likely occurred around the time of death.

    Liver

21. 8g: A 7m full thickness laceration of the liver, 2.5cm left of the midline. The liver was torn, not cut.  Likely due to blunt force trauma where liver is compressed between an object or plane and the spine.  Would require severe force.  Judging by the inflammatory reaction it occurred one to two hours prior to death.

22. 8f: 1 litre of blood located in abdominal cavity with an associated clot. The blood source was the tear to the liver.  The clotting implies that blood continued to enter the cavity during life.

    Arms

23. 9: A 4cm dark area across the inner right elbow with a 1x2cm graze and underlying haemorrhage.  There was an inflammatory reaction.  Likely caused by blunt force trauma.

24. 10: A 1cm bruise in deep tissue of the right index finger.

25. 13: An area 7x3cm of green discolouration on the left upper arm indicating bleeding into tissue.  Would require mild to moderate force.

26. 14: A 3.5x1.5cm area of discolouration showing acute inflammation.  Would require mild force.

    Legs

27. 15: A 2 to 5cm purple area of deep bruising across the front and right side of the upper half of the right thigh with associated grazing.  Would require mild to moderate blunt force.

28. 19: A red area 3cm in diameter with underlying bruising into the tissue on the outside of the right ankle.

29. 24: Areas of red discolouration and at least four abrasions on the front of the left lower leg with bruising under the skin.

30. 25: A 10cm vertical abrasion at mid height of the left lower leg with signs of an inflammatory reaction.

31. 27: A very small (0.1x0.3cm) abrasion, with acute inflammation.

    Back

32. 29a: An area of bruising 2.5cm in diameter on the back of the right upper shoulder showed bleeding into the tissue and the muscle of back.  This injury would have required at least moderate impact force.

33. 29b: An area of 9x9cm bruising between the shoulder blades.  There was haemorrhaging in the tissue under the skin.  Moderate force would have been required.   This area is usually protected by the shoulder blades.

34. 29c: A broad band of bruised tissue (skin and muscle) between bottom of the rib cage and the top of the pelvis.  It was accentuated over the spine, that accentuation covering an area of 17x3cm.  Its appearance was suggestive of the imprint of a car tyre.  Would require moderate to severe force to produce such an injury.

    The trial

35. The appellant did not give evidence at trial; nor had he submitted to an interview by police.  However, the conduct of the defence did not involve any suggestion that the appellant was not present when the victim’s injuries were sustained.  The defence at trial amounted to putting forward a number of scenarios which it was suggested could not be disproved by the prosecution.  For instance, it was clear that prior to her death, Ms Towner had been drinking reasonably heavily.  Plainly the appellant would also have been drinking, but there was no evidence of the extent to which he was intoxicated at any relevant time.  There was a marked history of both persons taking liquor excessively and of becoming argumentative and even violent as a result.  On that basis defence counsel specifically raised the question of the appellant having been intoxicated to the point of criminal irresponsibility.  It was suggested that having regard to the history of the appellant’s use of liquor and circumstantial evidence of the events of the weekend the judge could not be satisfied that the appellant was not criminally irresponsible because of self-induced intoxication.

36. Defence counsel also argued that having regard to the appellant’s intoxication (at whatever level it was) the prosecution could not prove the specific intention required for murder.  Then, it was argued that the prosecution could not disprove that that the deceased’s injuries were inflicted in the course of a violent episode precipitated by an attack upon the appellant by the deceased, albeit that the appellant’s response might have been disproportionate to the threat faced by him.

37. I shall examine the grounds of appeal in turn.

    Ground 1 – Intoxication

38. This ground as finally reformulated during the appeal hearing was as follows:

    1.The learned trial judge erred in his findings, and directions, on the question of intoxication in that, he:-

    (i)    held that there was not an evidentiary basis on which he could either find, or infer, that the applicant was intoxicated to the extent that intoxication had to be taken into account when assessing the appellant’s state of mind at the relevant time, and

    (ii)     failed to consider that in the circumstances of the case, intoxication was capable of creating a reasonable doubt to the extent that the applicant should be acquitted of the principal charge and convicted of manslaughter.

39. I deal first with the relevance of intoxication.

40. The judge found that the level of the appellant’s intoxication at the time of the victim sustaining her injuries could not be established. That conclusion is not challenged. The judge found that it was reasonable to infer that, like the victim, the appellant had consumed a substantial amount of liquor: [417].

41. Intoxication was relevant to voluntariness and intention.  It was relevant to voluntariness because, as mentioned, defence counsel had raised the question of whether the appellant’s consciousness “was, or may have been, impaired by intoxication to the point of criminal irresponsibility”: s 268(2) and (3) and s 269 of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and also when considering whether the prosecution had proved the mens rea for murder.

42. The first argument of Mr Vadasz was that the judge wrongly excluded intoxication as a relevant factor in the case and that he seemed to have done so on the basis that no evidence established the appellant’s blood alcohol level at the relevant time.  During the argument on the appeal Mr Vadasz narrowed the focus of his attack to confine his complaint about intoxication to its bearing on the formation of specific intent.  The judge’s finding that the appellant’s actions were voluntary was no longer challenged.  Mr Vadasz submitted that the lack of any specific evidence of the level of intoxication did not deny the relevance of the issue.  In that regard he relied on The Queen v Childs (2007) 98 SASR 111. Mr Vadasz further argued that the judge’s approach to the issue of intoxication involved a reversal of the onus of proof. He put that it was not for the defence to prove that intoxication had impaired the appellant’s perception of events or that inferences otherwise available as to his intention could not, because of intoxication, be drawn, but rather, it was for the prosecution to prove specific intent notwithstanding the evidence of intoxication.

43. Mr Vadasz pointed to certain passages in the reasons of the judge, namely [429], [435], [448] and [449].  I have italicised the particular passages relied on by him.  For completeness I have added some other passages which I see as being also relevant to this ground.

    [429]Having found that the accused by his act or acts caused the death of the deceased I have to consider whether there is any basis on which I can entertain a reasonable doubt as to the voluntariness of the acts of the accused. I would not have left that question to a jury. There is no evidence as to the degree of intoxication at the relevant time, but simply an inference that he had been drinking and was to some, but to an unknown extent intoxicated.

    [430]I therefore come back to the evidence of intoxication. Can I be satisfied beyond reasonable doubt on the evidence available, and any reasonable inferences from that evidence, that having regard to that evidence the accused did form the necessary intent for murder?

    …

    [435]Because of the lack of any evidence as to the drinking pattern of the accused and the amount that the accused had consumed up to the time he delivered the blows to the deceased, but assuming that he must have consumed some alcohol at least to the extent of slurring his words in the 11.40 am call on Sunday morning, I am not able to conclude, having regard to the lack of specific evidence and bearing in mind the opinion of Dr Irvine, that the level of intoxication of the accused was such as to allow for the reasonable possibility that he had neither the intention to kill nor cause grievous bodily harm when he struck the deceased.

    …

    [447]The events which I have related above by themselves may not point necessarily to an intention to kill or to cause grievous bodily harm to the exclusion of any other explanation. However, the significance of that conduct is as part of the whole circumstantial case when considered with all the other evidence. The other evidence is the relationship evidence already set out in detail earlier in these reasons and the nature and extent of the injuries sustained by the deceased. I will again refer to the significance of the injuries shortly.

1. Dealing with [447], the events which the judge had related immediately prior to this passage were telephone calls and text messages going to or from the appellant’s mobile phone during the Easter weekend, statements attributed to the appellant after the victim’s death in relation to calling an ambulance (no such call was received by the ambulance service), the two of them having been in a car accident (which was not true), the victim having walked home from the scene and what the judge found were attempts by the appellant to distance himself from the circumstances surrounding the victim’s death.

   [448]There is no evidence to support the fact that the act or acts of the accused were involuntary by virtue of his intoxication. I am not prepared to infer a gross state of intoxication, sufficient to satisfy the requirements of s 268 of the CLCA, on the basis solely of the deceased’s alcohol history and his level of intoxication when arrested on Tuesday afternoon. There is no evidence as to his level of intoxication at the time shortly prior to the death of the deceased.

   [449]The accused was slurring his words in the telephone conversation at 11.40 am on the Sunday but nevertheless gave a description of the deceased and advised that he had checked for a pulse. Likewise, even when heavily intoxicated at the time of his arrest, he was able to give an accurate description of where the car could be found in the scrub area out of Strathalbyn. I take into account generally the consumption of liquor but cannot find any particular level as negating any intention by the accused to cause grievous bodily harm. With a level of 0.26% at the hospital he was co-ordinated.

2. In support of his argument that it was for the prosecution to prove the intent notwithstanding evidence of intoxication, Mr Vadasz again referred to Childs’ case and also to The Queen v Wingfield (1994) 176 LSJS 14. In Wingfield’s case the victim was an 18 month old boy, the nephew of the prisoner’s de facto wife.  The prisoner and his wife were looking after the boy temporarily in the prisoner’s home.  The prisoner returned home one night in an extremely intoxicated state and, apparently angry that the boy was in the house at all, was violent to both the boy and his de facto wife.  The prisoner gave evidence of being drunk and said that he had no memory of what occurred when he came home.  But according to his wife, the violence to the boy included “dropping [the boy] on the floor, dropping him onto a swag a number of times, forcing him to stand upright without touching the wall for a considerable period, kicking the child in the head with a bare foot and striking him with a hand on the face and head”: at 14.   On appeal it was argued that there were flaws in the directions to the jury going to the meaning of grievous bodily harm, as well as the need to evaluate the evidence of the boy’s injuries and the requirement of proof of an intention to cause grievous bodily harm in light of the prisoner’s undoubtedly drunken state.  There were further errors inasmuch as the trial judge directed the jury that the evidence of intoxication fell to be evaluated in terms of the prisoner’s capacity to form an intention to cause grievous bodily harm, rather than whether it was in fact formed.  The conviction was quashed and the verdict of guilty of manslaughter was substituted. 

3. Certainly the judge in the present case was unpersuaded that the evidence of consumption of liquor was such as to call into question the voluntariness of the appellant’s conduct towards the victim.  The lack of any evidence of extreme levels of consumption of liquor or very high levels of alcohol in the appellant’s blood were factors that weighed with the judge in so finding.  In reaching this position the judge discussed Childs’ case, the leading authority on s 269 CLCA, which itself surveyed some of the older authorities dealing with voluntariness.  As I said, I do not understand there now to be any complaint about the finding that the appellant’s conduct was voluntary. 

4. It is true that in those passages of the reasons dealing with intoxication the judge was inclined to move from the question of voluntariness to the question of proof of specific intention and back.  This probably occurred because in the course of the analysis the judge discussed evidence which was relevant to both issues.  But I can see no room to doubt that the judge also considered the evidence of intoxication when he came to the critical issue of mens rea.  In the final address of Mr Vadasz (who appeared for the appellant both at trial and in this Court) it was given some emphasis.  Mr Vadasz referred to the “problem for the Court in imputing intention or finding beyond reasonable doubt … that the murderous state of mind” was present, where both persons were intoxicated.  The issue was thus clearly raised.  Moreover, it can be seen from the judge’s reasons at [430] and [435] set out above that the judge plainly considered the issue of intoxication in relation to whether the appellant had the mens rea necessary for murder.  He considered it on the assumption that the appellant was, to some extent, intoxicated, and in [431] and [432] he referred to some extraneous evidence which bore out that conclusion.  Furthermore, in his final conclusions on the elements of murder at [471] the judge again linked the question of intoxication with the matter of proof of specific intent:

   ⁴⁷¹On the whole of the circumstantial case and having regard to the nature and extent of the injuries, as I have previously described them, I find beyond reasonable doubt that the accused intended at the time he inflicted those injuries at the very least to cause grievous bodily harm. By that I mean really serious bodily harm. I find beyond reasonable doubt that the intention, to cause at least grievous bodily harm, existed at the time the accused inflicted the injuries on the deceased, and was not affected by his intoxication.

5. It is true that the judge did not articulate the precise manner in which intoxication might have affected the formation of an intent to kill or cause grievous bodily harm, or the way in which the appellant’s intoxication might properly dictate caution in drawing inferences which would otherwise be fairly obvious ones.

6. In Wingfield’s case, the facts of which I referred to earlier, one of the several matters of particular concern to the appeal court was that it had not been brought home to the jury (King CJ at 18):

   … that inferences to intention which might be readily drawn from the nature of the injuries inflicted if the perpetrator is sober, might not as readily be inferred if the perpetrator is drunk, and that the critical issue for their consideration was whether, by reason of his drunkenness, the appellant might have inflicted these grievous injuries notwithstanding the absence of an intention to inflict that degree of harm.

   It can be readily appreciated that a jury dealing with such a case would need assistance on the part that intoxication might play in its deliberations.  A jury is unfamiliar with the legal concepts involved in the elements of murder, the way in which inferences may be drawn as to a person’s state of mind and the way in which intoxication could have an impact on both.  A jury might be too ready to infer intention from the presence of a group of serious injuries unless appropriately guided. 

7. However, a judge is accustomed to such matters.  He is accustomed to considering the behaviour of those affected by liquor and other drugs.  The dispassionate consideration of all matters relevant to a particular issue is part of the daily diet.  In my opinion there was no obligation upon the judge to state explicitly that the inferences as to intent usually arising from the catalogue of injuries suffered by the deceased might not be available due to the appellant being to some extent intoxicated.  In the passages of the judge’s reasons I have set out, he clearly couples the issue of intoxication with the question of proof of specific intent.  No more was required.

8. Was there a reversal of the onus?  Upon this appeal it has not been suggested by anyone that the onus of proving specific intent was anywhere other than upon the prosecution.  It is unnecessary to refer to authority to support such a fundamental proposition.  The question at issue is whether the judge unwittingly placed a burden on the appellant to prove that intoxication undermined the existence of mens rea. 

9. In the passages of the judge’s reasons I have reproduced he speaks of not being able to conclude that the intoxication “was such as to allow for a reasonable possibility” that the appellant did not have the relevant intention: [435] and of whether consumption of liquor might be seen as “negativing” any intention to cause grievous bodily harm: [449] and the intention not being “affected by” intoxication: [471].

10. At first blush these expressions could suggest a reversal of the onus.  However, I do not think that is a fair reading of the passages.  His Honour found that inferences as to intention arose from the circumstantial evidence of the relationship, the appellant’s behaviour after the time when the victim must have died, and the nature and extent of the injuries.  As was the situation in Wingfield’s case, the scale of the injuries alone would usually give rise to a clear inference of intention to at least cause grievous bodily harm.  In my view in the very few instances where the judge expressed himself in this way, he was really speaking of the intoxication potentially weakening, neutralising, forestalling, undermining, eroding or, perhaps best, preventing or precluding the drawing of the inferences otherwise available.  In discussing two competing considerations – an inference usually available and a factor that might tend against drawing it – it is not hard to use expressions which have little or no regard for the onus of proof.  To draw from such inelegancies a conclusion that the judge effected a complete inversion of the onus of proof – when he elsewhere stated the matter clearly and correctly – goes too far.

11. Reading the reasons as a whole, I have no misgivings as to any reversal as to the onus of proof.

12. In his reasons for decision Peek J has attributed to Mr Vadasz an argument that the judge erred in confining the relevance of intoxication to the question of whether the appellant’s intoxication was such that he was incapable of forming an intention to kill or cause grievous bodily harm, whereas the issue was whether the intention was in fact formed. 

13. I did not understand Mr Vadasz to be mounting such an argument.  The particulars of ground 1, as amended, which I set out earlier, do not reflect such an argument.  It is not for this Court to formulate arguments for those litigants or counsel who appear before it.  (See generally Police v Scheving [2011] SASCFC 155 per Doyle CJ). However, since the matter has been raised I would make these observations.

14. The only reference in the reasons of the judge to the question of incapacity comes at [376] where his Honour is summarising prosecuting counsel’s submission.  The judge said:

    [376]On the question of intoxication Ms McDonald submitted that there is very little evidence from which I could conclude that the accused was so severely intoxicated as to be incapable of acting voluntarily and/or of forming the intention to cause grievous bodily harm. Ms McDonald submitted that there are some aspects of the evidence that in fact pointed away from the extreme levels of intoxication which would be required to negative intention.

    While at two pages of the trial transcript (pages 985 and 1024) there was reference by the judge to intoxication potentially bearing on incapacity, this notion did not appear in the judge’s reasons, apart from in [376]. At transcript page 985 there is discussion of s 269(1) CLCA, which is the section requiring defence counsel to specifically raise intoxication to the point of criminal irresponsibility, if it is to be an issue. At that page Mr Vadasz makes such a request. At transcript page 1024 there is discussion about s 268 CLCA, which again deals with criminal irresponsibility caused by self induced intoxication and the liability to be convicted for an offence of manslaughter despite impaired consciousness. It is telling, in my view, that the topic under discussion in both passages is voluntariness rather than specific intent.

15. I do not consider it appropriate to attribute to a judge error on the basis of things said in the course of submissions.  A judge is open to criticism on account of what he or she says in considered reasons for decision.  (Indeed, the reasons given in this case were delivered approximately one month after the conclusion of the trial and ran to 480 paragraphs).  Occasionally, reference to argument might help to interpret something said in the reasons for decision.  But this particular imputed error of approach does not appear in the judge’s reasons.    On the contrary, other paragraphs in the reasons, for example [430], [447], [469] and [471] indicate the correctness of the judge’s approach.  The first two of those are set out above.  The last two I now reproduce.

    ⁴⁶⁹I conclude therefore that the whole of the circumstantial case presented by the prosecution is compelling.  There is no reasonable possibility, consistent with the innocence of the accused, of any intention other than an intention to cause, at the very least, grievous bodily harm.  I find beyond reasonable doubt that the accused bashed the deceased and that all the injuries contained in Dr Langlois’ summary were inflicted by the accused during that bashing.

    ⁴⁷¹I now return to where I started with my conclusions on the specific elements required to be proved beyond reasonable doubt before the accused can be found guilty of murder.

    …

    ·    On the whole of the circumstantial case and having regard to the nature and extent of the injuries, as I have previously described them, I find beyond reasonable doubt that the accused intended at the time he inflicted those injuries at the very least to cause grievous bodily harm.  By that I mean really serious bodily harm.  I find beyond reasonable doubt that the intention, to cause at least grievous bodily harm, existed at the time the accused inflicted the injuries on the deceased, and was not affected by his intoxication.

16. In summary, I can find no indication in the judge’s reasons that his approach to the question of proof of specific intent was flawed.

    Ground 2 – Self Defence

17. Ground 2 is as follows:

    2.The learned trial judge erred in his consideration of self defence when:-

    (i)    he found that “there was no issue of self defence raised on the evidence”, and

    (ii) he failed, in all the circumstances, to give consideration to the application of s 15(2) of the Criminal Law Consolidation Act 1935 (SA).

18. In support of this ground Mr Vadasz argued that the judge had erroneously rejected the possibility that the deceased’s injuries were inflicted as a result of an intoxicated brawl between the deceased and the appellant.  Mr Vadasz argued that the appellant had a number of injuries consistent with having been involved in a brawl with the deceased, including a bite mark on the back on his neck.  Such injuries could be seen in the arrest video and were attested to by witnesses who saw the appellant upon his return to Strathalbyn; although no notes of injuries were made upon his subsequent medical examination.  It was said that the judge was not justified in rejecting self defence in “very short terms” in circumstances where the relationship was a toxic and stormy one marked by alcohol and loud disagreements.  Reference was made to [464] to [465].  In those paragraphs the judge said:

    [464]The defence hypothesis is not a reasonable possibility. It is not a reasonable possibility that in an isolated spot the deceased would attempt to tackle the man, who had previously beaten her, by jumping on his back during a drunken brawl.

    [465]There is no issue of self-defence raised on the evidence.

    It was said that the correct approach to the question of self defence, as informed by Braysich v R (2011) 243 CLR 434 and The Queen v Roberts (2011) 111 SASR 100 required the judge to take the prosecution case at its highest from the appellant’s standpoint and to determine whether a properly instructed jury might entertain a reasonable doubt about the element of the offence under consideration.

19. Mr Vadasz confirmed that his submissions in relation to self defence were directed only to the first limb of s 15(2) CLCA – genuine belief as to the need to act for a defensive purpose – and not to the second limb relating to reasonable proportionality. That is, Mr Vadasz did not argue that the appellant could have secured a complete acquittal on the basis of self defence.

20. The principles of law raised by this ground are not in dispute. 

21. In my view it was inevitable that the judge would find that the appellant’s conduct was unlawful.  There was simply no evidence to suggest that the appellant’s conduct towards the deceased was a response to violence or a threat of violence shown by her towards him.  Any suggestion that the appellant acted for a defensive purpose was pure speculation.  Even had there been any such evidence, the necessarily protracted nature of the violence demonstrated to the victim and the severity of it would have precluded any reasonable possibility of even a partial defence.

22. I would refuse permission to appeal on this ground.

    Ground 3 – Finding of previous assaults

23. Ground 3 is as follows:

    3.The learned trial judge erred in finding beyond reasonable doubt that the accused had assaulted the deceased on at least two prior occasions. 

24. There was evidence before the judge that the deceased had a black eye in March or April 2010 and evidence of the deceased having complained to police in August 2010 and February 2011 of having sustained injury inflicted by the appellant. The judge considered this evidence and its admissibility at some length in his reasons for decision and in particular considered the terms of the relatively new s 34P of the Evidence Act 1929 (SA) which governed its admission. Ultimately the judge admitted it, not as evidence of propensity, but as relevant material going to show the nature of the relationship between the two people.

25. Upon the appeal Mr Vadasz took issue not with the admissibility of that material, but with the judge’s characterisation of the previous events as “assaults”.  He argued that there was insufficient material before the judge to allow for that conclusion and that, again, the question of intoxication would need to have been considered before any (implicit) finding of guilt, demonstrated by use of the word assault.

26. In my view there is no substance in this ground. Not only was there quite clear circumstantial evidence to prove that the appellant was the author of the victim’s injuries on those previous occasions, but also there were statements by the victim to both the police and her doctors identifying the appellant as the assailant. That material was admissible pursuant to s 34KA of the Evidence Act.  Whether those injuries were inflicted upon the victim in circumstances where the appellant would have been found guilty of assaults was not to the point in terms of the use made by the judge of this material.  I consider that the judge’s use of the term assault in relation to each of these instances implied no more than that the appellant was the perpetrator of the violence which gave rise to the victim’s injuries. 

27. I would refuse permission to appeal on this ground.

    Ground 4 – Use of evidence of discreditable conduct

28. Ground 4, as counsel sought to further amend it during the appeal hearing, is as follows:

    4.The learned trial judge erred in the application of discreditable conduct evidence relating to prior injuries suffered by the deceased when he:-

    (i)     used the discreditable conduct evidence as propensity evidence,

    (ii)     erred in confining the use of the discreditable conduct evidence to distinguish only between murder and death by accident and in doing so failed to give any, or adequate, weight to the fact that the discreditable conduct evidence might show a mutuality of drunken violence between the applicant and the deceased,

    (iii)     erred in admitting and relying on evidence that the deceased nominated the accused as to the cause of the injuries in the two instances, namely August 2010 and February 2011.

1. To a large extent this ground merged with grounds 2 and 3. 

2. The judge admitted the evidence under consideration as “evidence of the status and deterioration of the relationship between the accused and the deceased” and said that it might assist him “in deciding how the deceased may have died … and whether it may have been the result of an accident”: [68]. The judge likened the relevance of the evidence to what the High Court had said in Wilson v The Queen (1971) 123 CLR 334 about the proper use of broadly similar evidence in that case: [82].

3. In my view the contention that the evidence of previous violence was used as propensity evidence is not made good in terms of the judge’s reasons.  I accept that the line between propensity and non-propensity uses in evidence of this type can be a fine one.  In any event, I consider that the evidence was clearly admissible and the uses made of it were available.  I do not accept that any of the evidence in the case indicated what Mr Vadasz called a “mutuality of drunken violence” between the victim and the appellant.  As I have already said, I consider that the fact that the appellant was the author of the injuries previously sustained by the victim was plain both from circumstantial evidence and by admissible evidence of what she told her doctors and police officers.

4. I would not grant permission to appeal on this ground.

   Ground 5 – Use of items of evidence

5. Ground 5 is as follows:

   5.The learned trial judge erred in:-

   (i)    placing undue weight on the evidence of the witness Hull in circumstances where that evidence was not supported by other witnesses and,

   (ii)     interpreting the text messages to find that the deceased was afraid of the accused, and required to reassure him regularly, to the exclusion of other interpretations more likely, or at least, equally available, on the evidence,

   (iii)     combining the evidence of Hull and his interpretation of the text messages to determine the nature of the relationship and the weight he attached to that determination in the circumstantial case against the accused.

6. This ground raises issues which are purely factual.  The judge had before him extensive evidence from a number of sources about the nature of the relationship between the appellant and the victim.  He was impressed by the evidence of Mr Hull and he gave reasons for preferring that evidence to some other evidence.  The judge had before him some 75 pages of text messages between these two people.  These amounted to, in effect, a running commentary on the state of the relationship.  Such messages were apt to give a real insight into the ups and downs of the interaction between the appellant and victim.  The judge referred to, and indeed reproduced, some of the messages which tended to indicate that there was at times deep affection between the two of them.  However, that is not to say that in describing the relationship as “a volatile and dysfunctional” one ([439]) the judge was in error.  There was plenty of material upon which to base a conclusion that the relationship was marked by the appellant’s jealousy and insecurity and that the continuation of the relationship was often in jeopardy. 

7. This ground is without substance and I would decline to grant permission to appeal.

   Ground 6 – Interpretation of medical evidence

8. Ground 6 is as follows:

   6.It was not rationally open on the evidence to reject the possibility that the deceased’s injuries were the result of a drunken, and mutual, fight in circumstances where the applicant lacked a murderous intention and, in rejecting the possibility, the learned trial judge misdirected himself on:

   (i)    the factual findings to be drawn from the medical evidence,

   (ii)     the inferences to be drawn from the “conduct” of the applicant,

   (iii)     the conclusions to be drawn from the above and the other circumstantial evidence.

9. The primary contention advanced in support of this ground was that the judge had erred in his interpretation of the pathologist’s evidence and had drawn inferences in relation to the cause of a number of the injuries which were not available having regard to that evidence.  Mr Vadasz argued that on a fair reading of the pathologist’s evidence a number of the injuries could be explained by falls, or an ongoing fight, or by the appellant having attempted to resuscitate the victim (of which there was no evidence).

10. In my view these contentions mistake both the role of the pathologist in giving evidence and the role of the judge.  It is no part of the role of a pathologist to draw general conclusions about how events might have unfolded, divorced from his examination of the body.  If a pathologist is asked to express an opinion as to whether particular injuries might have been caused by complicated manoeuvres and unlikely sequences of events, all he can do is base his answers on the results of his examination.  The trier of fact occupies a more advantageous position.  Neither a judge nor a jury is obliged to accept the opinion of the pathologist to the effect that an injury might possibly have been caused in a particular way.  The trier of fact may bring to bear on such a suggestion a deal of other relevant evidence quite outside the pathologist’s knowledge or expertise.  As well, the trier of fact is entitled to have regard to questions of probability, that is, whether the scenarios put to the pathologist are so strained as to be inherently unlikely.

11. In this case, the very number of injuries sustained by the victim made the likelihood of all or any them being accidentally caused, or caused in a fight followed by a fall or falls, to be unlikely.  The fact that the pathologist had acknowledged that some of the injuries could have been sustained in a fall in no way bound the judge to such a conclusion.

12. I would refuse permission to appeal on this ground.

    Ground 7 – Unsafe and unsatisfactory

13. Ground 7 is as follows:

    7.The verdict is unsafe and unsatisfactory and against the weight of the evidence and the fair trial of the accused miscarried as a result of the above grounds considered separately, and/or, in combination. 

14. No additional arguments were put under this ground.  I have considered the evidence before the judge and his comprehensive reasons for the finding of guilt.  I have considered the evidence in light of the grounds of appeal and the argument advanced in support of them and have no misgivings about the verdict.

15. I would refuse permission to appeal on this ground.

    Conclusion

16. For the reasons given above, I would make the following orders:

    1.Allow permission to amend the Notice of Appeal to incorporate the further amendments sought to be made during the appeal argument, namely to grounds 1 and 4, as reproduced in these reasons.

    2.Grant permission to appeal on ground 1 but refuse permission to appeal on grounds 2 to 7.

    3.Dismiss the appeal.

17. PEEK J.    Application for permission to appeal against a conviction of murder.

    PART 1:  INTRODUCTION

18. Mr Gardiner applies for permission to appeal against a conviction of the murder of Ms Katherine Dulcie Towner after a trial by Judge alone.  Since it was clear that permission to appeal was not required, or is to be granted, on some at least of the proposed grounds of appeal, he will be referred to as the appellant.

19. The appellant was born on 8 September 1979.  As at the time of the present events at Easter 2011 he was 31 years of age and had been unemployed for about ten months, having last worked at the Strath Pastoral Meatworks in Strathalbyn between 11 June 2008 and 10 June 2010.

20. Ms Towner (sometimes to be referred to as the deceased) was born on 1 November 1981 and was 29 when she died at Easter 2011.  She was a single mother and had moved from Queensland to South Australia to live with her mother and her half brother at the end of 1999.  Her son, who suffers from intellectual disabilities, was one month old at that time.

21. The appellant and the deceased were in a sexual relationship for approximately 18 months leading up to the deceased’s death.  That relationship, although on occasions characterised by love, affection, devotion, and sexual attraction (as evidenced by many text message exchanges between the two in evidence), was also beset by arguments and abuse, both verbal and physical. 

22. Over the course of the relationship, family members of the deceased noticed marked changes in her behaviour.  The deceased had previously suffered from drug use problems but had given up drinking when she had become pregnant with her son, Shane Towner (well before meeting the appellant).  Now she reverted to her previous behaviour.  She became intoxicated, drinking alcohol to excess and using cannabis and other drugs.  She had previously been seen as a caring and concerned mother but she more and more left her son to be cared for by her own mother.  She had previously had a very close relationship with both her half brother and her mother, living together with both of them at various addresses until 2004 and 2009, respectively.  Now, she gradually withdrew from her family, spending more and more time with the appellant who, about six months into the relationship, moved in with the deceased at her house at Victor Harbor.

23. Friends of the appellant, and family members of the deceased, noted intense verbal altercations between the two, often accompanied by mutual intoxication.  Some would last well into the night.  Members of the deceased’s family and friends also began to notice signs of abuse, observing that the deceased had injuries to her face, such as black eyes and bruises, and other cuts and abrasions. 

24. On two separate occasions the deceased reported the appellant to the police as having assaulted her, on 26 August 2010 and 18 February 2011.  As a result of the first report, the appellant spent just a little over four months in prison, from 26 August 2010 to 7 January 2011, during which time the deceased continued to visit him. 

25. Following the second reported incident of assault, the appellant spent a further three days in police custody before being granted bail by a Magistrate.  As conditions of his bail, the appellant was not to contact the deceased, attend at her home or work or enter Victor Harbor.  Upon being granted bail the appellant moved in with Mr David Brumfield, Ms Kelly Stevens (Mr Brumfield’s partner) and two other men at 31 South Terrace, Strathalbyn (the South Terrace house).  The appellant had known Mr Brumfield for a period of four to five years, and had initially met him through his work at the meatworks.

26. The appellant had his own room at the South Terrace house, and the deceased stayed with him there on about half a dozen occasions.  On one of these occasions, the appellant and the deceased had an intense verbal altercation which lasted into the early hours of the morning.  As a result of this fight, and also the appellant’s bail conditions, Mr Brumfield subsequently forbade the deceased from staying with the appellant in his room.  Consequently, the appellant and the deceased began regularly to go on weekend camping trips to be together and one such trip was planned for the 2011 Easter weekend.

27. The deceased and the appellant left the South Terrace house in the deceased’s car for their last camping trip sometime between 8:30pm and 10:00pm on Thursday, 21 April 2011, after borrowing some items from Mr Brumfield.  On Tuesday, 26 April 2011, the appellant returned to the South Terrace house in a dishevelled and intoxicated condition and falsely stated to Mr Brumfield that he and the deceased had been involved in a car accident and that the deceased had walked home.  He further stated that her car was located near Mitchies scrub, a distance of just over six kilometres from the Strathalbyn house.  The deceased’s body was shortly afterwards discovered at that location (the Lowana Road site) by Mr Brumfield and others seeking his borrowed property.  The body was found in her car covered by a quilt and a denim jacket and the decomposition process had started.  The appellant was later that same day arrested for murder and taken into custody.

28. The trial of the appellant by Judge alone commenced on 6 August 2012 and concluded on 21 August 2012 when his Honour reserved judgment.  On 17 September 2012 the appellant was found guilty of murder.

    The proposed grounds of appeal

29. The Judge hearing the application for permission to appeal referred it to the Court of Criminal Appeal for consideration.  The proposed grounds of appeal, which are rather inelegantly drawn, raise a number of complaints.  The substantial matter, and that which is sufficient to dispose of the appeal, is that the trial Judge erred in his approach to the question of whether it had been proven beyond reasonable doubt that the appellant held the requisite specific intent for the crime of murder contemporaneously with the performance of the required actus reus of murder both generally and specifically in relation to the effect and bearing of the matter of intoxication on that question (proposed grounds 1, 6 and 7).  I will proceed directly to this complaint.

    PART 2:  SPECIFIC INTENT AND INTOXICATION

30. The matter of intoxication on the part of the appellant was of high importance in a number of contexts.  Most importantly, it was directly relevant to the question of whether he in fact formed the requisite specific intent for the crime of murder.

31. The defence case that the appellant was likely to have been heavily intoxicated during the relevant period of the camping trip immediately leading up to the deceased’s death (whenever that precisely occurred) was largely based upon the combined or cumulative effect of a number of matters including that:

    ·The appellant had been observed during the period of months leading up to Easter 2011 to be ever increasingly drinking to excess.

    ·The appellant was observed to be already in a state of moderate intoxication on Thursday, 21 April 2011, immediately prior to the camping trip.

    ·The appellant was observed to be in a state of high intoxication on Tuesday, 26 April 2011, following the camping trip.

    ·The deceased had been observed leading up to Easter 2011, clearly as a result of her relationship with the appellant, to regularly and increasingly become intoxicated, particularly when in his company.

    ·The times spent together by the appellant and the deceased, including when the appellant had previously inflicted injuries upon Ms Towner, had been notable for the high level of their mutual intoxication.

    ·The appellant and the deceased were alone together camping in Easter 2011 in circumstances where, apart from the aspect of sexual attraction, there was little to do and mutual drinking of alcohol was inevitable.

    ·Blood samples taken from the body of the deceased on post mortem established a blood alcohol content (BAC) reading of 0.143 per cent, with her pre-death level being as high as 0.163 per cent if she had stopped drinking two hours prior to death.

    ·The drinking by the deceased would clearly have occurred in the presence of the appellant.  It would be entirely unrealistic to suggest that the appellant would have drunk any less than the deceased during that time and the probabilities are that he would have drunk more.

    ·In addition to the above matters, there was some witness evidence directly tending to confirm that the appellant was indeed intoxicated at about the relevant time.

    ·There was also some evidence concerning the collection of empty alcohol containers from the Lowana Road site.

32. The appellant submits that it is critical to have regard to the whole of the evidence in this global way rather than restricting attention to direct evidence as to the appellant’s precise level of intoxication at or about the time of the death of the deceased.  I agree that this matter should be approached in that way.  I will now examine the matters summarised above in further detail.

    The appellant’s drinking habits leading up to Easter 2011

33. A number of witnesses gave evidence about the drinking habits of the appellant leading up to Easter 2011.  Overwhelmingly, the appellant was portrayed as someone who regularly drank to excess. 

34. Mr Brumfield had known the appellant for four or five years, had been a housemate at Strathalbyn and had worked with him at the meatworks.  He gave evidence that the appellant was a heavy drinker and that he had seen him “drink until he’d collapse on the ground” on a number of occasions.[1]  He gave evidence that a few weeks before the Easter weekend in 2011 he had actually confronted the appellant about his drinking as he had begun to drink to the point of passing out fairly often.[2] 

    [1]    T274-275.

    [2]    T298-299.

35. Ms Kelly Stevens (the partner of Mr Brumfield who was also living at the South Terrace house) was similarly able to observe the appellant over a period of about three to four years.  She gave evidence that she often saw him drink a lot and saw him drunk.  She stated:

    Q     He would always get drunk, wouldn’t he?

    A     Yes.

    Q     He always had a problem with alcohol at the times you saw him?

    A     Yes.

    Q     In that time that he stayed at your place did you ever see him sober?

    A     In the morning when he woke up.

    Q     And that was it?

    A     Yep.

    Q     Never in the evening?

    A     No.

36. The appellant was regularly observed with a strong smell of alcohol about him by various persons.  Thus, Mrs Erica Brumfield stated that when she spoke to the appellant one day in the middle of the day in March 2011 “[h]e reeked of alcohol”.[3]  Similarly, Mr Andrew Kerslake (who had worked with the appellant at the meatworks) gave evidence that he once saw the appellant walking up from a park one morning and gave him a lift to work in circumstances where the appellant was “blind drunk”, smelling strongly of alcohol, and had to sit in the lunch room for half an hour to sober up.[4]

    [3]    T671, 674.

    [4]    T628 (cross-examination).

37. Mr Grantley Hull was another resident of the South Terrace house who gave evidence at trial.  He said that the appellant had always been a social drinker, but his drinking became heavier just before he stopped working at the meatworks (in 2010).  He agreed that once the appellant started drinking he would drink until he passed out or there was nothing left to drink.[5]  He stated that the appellant “would be drunk as soon as he had money and if we’d had drinks”.[6]

    [5]    T405 (cross-examination).

    [6]    T409.

38. Mr Trevor Cutting also lived at the South Terrace house.  He had only met the appellant about a week prior to the 2011 Easter weekend, but he said the appellant was drinking on the three or four occasions he had seen him.[7]

    [7]    T454.

39. Ms Gail Hopkins, the mother of the deceased, stated that every time she saw the appellant he “either had a drink or he was drinking at that time”.[8]

    [8]    T59-60.

40. On 18 February 2011, Senior Constable Brain arrested the appellant on a charge of assaulting Ms Towner.  He decided not to conduct an interview with the appellant due to his high level of intoxication.[9]

    [9]    T210, 212.

41. On Tuesday, 26 April 2011, Dr Sherard Maine examined the appellant at the Royal Adelaide Hospital following his arrest on the present charge of murder.  He recorded in his notes that the appellant informed him that he would regularly drink three bottles of port a day.[10]

    [10]   T443-444.

    The appellant’s intoxication immediately prior to the camping trip

42. There is evidence that the appellant was already drinking heavily at the beginning of the camping trip.  Mr Hull gave evidence that the last time he saw the appellant was on Thursday, 21 April 2011 between 5:00pm and 7:00pm, when it was clear that “he’d had a few”[11] and that he “wasn’t absolutely blind drunk but he was on his way”.[12]  Mr Brumfield also gave similar evidence that the appellant was drinking immediately before he left for the camping trip with the deceased.[13]

    [11]   T407.

    [12]   T400.

    [13]   T293 (cross-examination).

    The appellant’s intoxication shortly after the camping trip

1. It is clear that when the appellant arrived back at the South Terrace house on Tuesday, 26 April 2011, after the camping trip, he was severely intoxicated.  Mr Brumfield gave the following evidence:[14]

   [14]   T262-264, 300-301 (cross-examination).

   QWe’ll do it this way; on a scale of 0 to 10 in the time you’ve known Jason Gardiner 0 being stone cold sober, 10 is absolutely blind drunk, where would you put him on this day?

   A     About 9.

   Q     Can you describe his appearance for us that day?

   AHe just had like a jumper, a hooded jumper and a jumper on and he - it was like he’d been out camping and that, dirty and stuff, a bit smelly, since they’d left on the Thursday afternoon, evening I should say.

   Q     Was he carrying anything with him?

   A     I think he had a goon sack and his hooded jumper.

   Q     What’s a goon sack?

   A     White wine or a cask from wine.

   Q     Is it a bladder?

   A     Yeah, a bladder.

2. After Mr Brumfeld had worked on his utility for a while, he returned to the front of the house and found the appellant asleep, sprawled out on the porch.[15]

   [15]   T266, 272 (cross-examination).

3. Ms Stevens gave similar evidence, stating that the appellant appeared to have been drinking when he arrived, by the way he was leaning up against the house and the smell of alcohol on him.[16]

   [16]   T330, 360 (cross-examination).

4. Mr Hull stated that he saw the appellant sitting on the ground of the veranda with a glass bottle of port in his hand, and it looked like he was drunk.[17] 

   [17]   T401, 405 (cross-examination).

5. Senior Constable Martlew gave evidence that when he arrived at the South Terrace House at about 1:43pm on 26 April 2011 to arrest the appellant he appeared “highly intoxicated” and was lying face down on the porch.[18]  When the appellant was roused he seemed “quite calm and complacent and the next point he’d be quite angry and upset.  He had quite a big mood swing”[19] and was incoherent at times.[20]  Shortly after that, the following is observed on the tape:[21]

   [18]   T466.

   [19]   T466-467.

   [20]   T467.

   [21]   Transcript of Video Record of Interview of 26 April 2011, p 3 (Appendix A of exhibit D53).

   SENIOR CONSTABLE MARTLEW

   QJust to let you know, everything here that we are doing is being recorded on the video recorder.  Do you understand that?

   AYeah.

   QYou understand that ok?  As an arrested person you’ve got certain rights.  You have the right to make, in the presence of a member of the police force, one telephone call to a nominated friend or relative to inform them of your whereabouts.  Do you understand that?  Jason?

   AYes.

   QDo you understand that?

   ANo, I don’t.

   QDo you want me to explain it to you again?

   ANo.

   QOkay, I’ll explain it to you.  If you understand it I’ll tell you.  You have the right to make a telephone call to a nominated friend or relative to inform them of your whereabouts.  Do you understand that?  Like that you are under arrest?  Do you understand that?

   SENIOR CONSTABLE HULST

   QJason, Jason, listen up, this is pretty important stuff, mate.

   SENIOR CONSTABLE MARTLEW

   QYou want to smoke?  Yeah, I reckon.  You wanna stand up, yes?  On the count of three, ready, one, two, three.

   SENIOR CONSTABLE HULST

   QUp you get, stand up.  You’re gonna do some walking in a minute.

   SENIOR CONSTABLE HULST

   QOkay, you with us?  Jason, have you been taking anything, alcohol, Jason, listening?

   SENIOR CONSTABLE LONG

   QHills nine one you on ninety?  Yeah, Roger, we’re having trouble giving this bloke his rights, he’s stood up and he’s fallen asleep while standing up.

   (Emphasis added)

6. A bottle of port was located nearby on the porch,[22] apparently, in addition to the bladder that Brumfeld saw.

   [22]   T467.

7. Dr Sherard Maine examined the appellant later that same day, at about 5:30pm on 26 April 2011.  The appellant indicated to him that he had drunk heavily over the previous two to three days and had very little recall of events.[23]  He also indicated that he had taken an unknown number of an unknown type of tablet.[24]  The witness’ notes indicate that the appellant informed him that he had drunk three bottles of port that morning.[25] 

   [23]   T430.

   [24]   T431, 443 (cross-examination).

   [25]   T444 (cross-examination).

8. A sample of the appellant’s blood was taken by Dr Michael Davey shortly after at 5:45pm[26] on 26 April 2011 and was analysed as having a BAC reading of 0.26 per cent.[27]  A further blood sample was taken at 9:59pm which was also analysed for alcohol[28] and showed a drop to a BAC reading of 0.14 per cent due to the metabolism or oxidation process.  This sample was also analysed for drugs.  Concentrations of 12 micrograms per litre of 11-nor-9-carboxy-tetrahydrocannabinol (the metabolite of cannabis) and a concentration of 0.06 milligrams per litre of nordiazepam (the metabolite of Diazepam or Valium) were found in the appellant’s blood[29] and indicated the prior recent use of cannabis and sleeping tablets by the appellant but the evidence could not establish any precise time of ingestion.[30]  However, Mr Rodney Irvine, the Head of Pharmacology at the University of Adelaide, gave evidence that both drugs would have an additive effect on a person’s level of intoxication by alcohol.[31]

   [26] Statement of Agreed Facts [8].

   [27]   T437-438.

   [28]   T437-438.

   [29]   T790-791.

   [30]   T790-792.

   [31]   T879, 885 (cross-examination).

9. In cross-examination, Mr Irvine was asked to estimate the appellant’s BAC eight hours before the blood was sampled at 9:59pm on 26 April 2011:[32]

   QWe can positively say his last drink was just before 1.40pm and the blood was taken at 9.59pm.

   AOkay.  A normal average 70 kg person etc etc, I would estimate the blood alcohol eight hours earlier would have been between .22 and .3.

   [32]   T880-882.

10. He commented thus on the effects of such levels of intoxication:[33]

    [33]   T883-885.

    A… So normally people would be losing consciousness at around about .2 and upward but for a seasoned drinker that might be .3, even higher in some cases.  I’ve seen concentrations that have also been reported as fatal in non-drinkers, so there is considerable tolerance to the effects of alcohol.

    Q     But a person at .3, irrespective of their tolerance, would be fairly well affected?

    A     I would have thought so, yes.

    …

    QOn other factors, including experience and literature, a person at .3, their judgment would be impaired?

    A     Yes.

    Q     Grossly impaired?

    A     I would say grossly impaired.

11. Mr Irvine was asked to comment on the likely effect of intoxication if a person with a BAC of 0.3 per cent also ingested a significant quantity of cannabis and took sufficient benzodiazepines to affect their behaviour.  He stated that “they would have a lot of difficulty in doing normal tasks and understanding what was going on and so forth.  They would be very, very intoxicated”.[34] 

    [34]   T885 (cross-examination).

12. This assessment was echoed by Dr Richard Balfour, who made a psychological assessment of the appellant on 27 January 2012.  He suggested that at such levels of intoxication a person would be “more prone to becoming impulsive and making poor judgments”.[35]  He stated:[36]

    [35]   T933.

    [36]   T934.

    AYes, the person is more impulsive.  They have impaired judgment.  They become what’s called emotionally labile.  That means that their mood state can actually swing quite dramatically, from being robust and depressed to laughing and disinhibited, to then angry.

    Q     Would it affect their perception, for example, of the need to act in self-defence?

    AAll I can say is it would affect their social judgment and how reliable their appraisal of a situation is in terms of the threat to them.

    QIn terms of awareness, would it affect a person’s ability to appreciate the consequences of any one particular blow?

    A     Yes, that is a possibility.

    Inferences arising from the evidence of the deceased’s drinking habits and her blood alcohol level at the time of her death

13. The present case is somewhat unusual in that the specific evidence of the deceased’s high blood alcohol level prior to her death,[37] as estimated from samples taken on post mortem (taken together with all of the other evidence in the case as to the drinking habits of her and the appellant, particularly when together, made it likely that at the time to which the samples from the deceased related, the appellant would have had at least the same (and probably a greater) level of intoxication.  It is again necessary to view the drinking habits of the deceased from a broad perspective.

    [37]   Intoxication on the part of the deceased was additionally relevant in a number of other important ways to be discussed below.

    The deceased’s drinking habits during her relationship with the appellant

14. A number of witnesses gave evidence of the deceased’s drinking habits during her relationship with the appellant. 

15. Mrs Hopkins, the deceased’s mother, gave evidence that her daughter had given up drinking before she met the appellant after suffering from drug use problems and becoming pregnant with her son, Shane Towner.[38]  However, from around August 2010 Mrs Hopkins noticed that the deceased started to behave similarly to when she had her previous drug problem; she would slur her words and “was just out of it all the time.  …  She just didn’t focus on things”.[39] 

    [38]   T41, 53-54, 54 (cross-examination).

    [39]   T53.

16. The half brother of the deceased, Mr Sean Towner, noticed similar changes, observing her regularly emerging from bottle shops, noticing a smell of alcohol and bottles strewn around her house, and regularly seeing the deceased drunk.  He had never previously seen her like that.[40]

    [40]   T27.

17. Mr Sean Jones was the deceased’s housemate from early 2011.  He gave evidence that he and the deceased would drink “if the occasion was there”.[41]

    [41]   T236.

18. Mr Brumfield observed the deceased drinking and occasionally smoking cannabis.[42]  His partner, Ms Stevens, also gave evidence that she saw the deceased drunk, but not as regularly as she would see the appellant drunk.[43]

    [42]   T288, 305 (cross-examination).

    [43]   T338 (cross-examination).

19. Mr Hull gave evidence that he observed the deceased drink heavily one night when the appellant was imprisoned at Mobilong, during which she drank one and a half bottles of whiskey.[44]

    [44]   T394-395.

    The toxicology findings on post mortem

20. The evidence of the intoxication of the deceased during the time leading up to her death principally emerges from the toxicology findings on post mortem.

21. Dr Langlois gave evidence that a blood sample taken from cavity blood in the abdomen revealed a BAC reading of 0.143 per cent.[45]  Lest this was contaminated, it was confirmed to a high level of confidence by an independent BAC reading obtained from a sample of the deceased’s vitreous humour.[46]

    [45]   T579.

    [46]   T579 (Dr Langlois), 787 (Ms Rositano).  Analysis of blood from the vitreous humour will be expected to produce a figure which is slightly higher that venous blood and a reading of 0.149 per cent was produced.  Thus the pattern of readings displays a high level of confidence that the reading taken from the cavity blood in the abdomen of 0.143 per cent was in fact a quite accurate venous blood estimation.

22. In cross-examination, both Mr Irvine[47] and Dr Langlois[48] agreed that the deceased’s BAC may have been higher while alive if she had stopped drinking some time prior to death, the oxidation process reducing her level down until the time of death.  Thus, Dr Langlois stated:

    One has to assume if there has been a period for death to occur, perhaps one or two hours, the degree of intoxication may have been higher at the time the injuries were sustained with the alcohol then having been metabolised to some extent.

    [47]   T887.

    [48]   T591.

23. It was considered that her pre-death BAC level could have been as high as 0.163 per cent if she had stopped drinking two hours prior to death.[49]

    [49]   T887.

24. Ms Rositano also gave evidence that blood samples taken from cavity blood in the abdomen revealed a reading of 12 micrograms per litre of delta-9-tetrahyrocannabinol (the active component of cannabis) and greater than 90 micrograms per litre of 11-nor-9-carboxy-tetrahyrdocannabinol (the metabolite of cannabis).[50]  Ms Rositano and Mr Irvine indicated that the presence of cannabinoids merely showed that the deceased had used cannabis at some stage relatively recently prior to her death.

    Observations of witnesses of the behaviour of the appellant on Saturday, 23 April 2011 and Sunday, 24 April 2011 indicating intoxication

    [50]   T787.

25. At 9:00am on Saturday, 23 April 2011, Mr John Ananey saw a person fitting the description of the appellant at the back of the car on Lowana Road.  Mr Ananey said:[51]

    [51]   T373-377.

    Q     Tell us again, as you drove that distance what did you see him do?

    A     He was just bent behind the car, and I thought that he was skinning a sheep.

    …

    Q     What did you see him do after he was bending over?

    AHe got up and he pointed at the passenger’s door, and that’s when they shut the door and he shut the boot of the car at the same time.

    …

    QYou told us he didn’t look too friendly.  Did you notice anything about his facial expression?

    ABlank and fairly glazed, blank glazed-looking eyes and a fairly blank look on his face.

26. In cross-examination, he said it “looked like he’d had a hard night” and it “looked like he’d had a big one”, clearly referring to the effects of alcohol.[52]

    [52]   T379 (cross-examination).

27. At a time that was most likely 11:40am on Sunday, 24 April 2011, Ms Stevens at the South Terrace house spoke to the appellant on a call from the appellant’s mobile telephone.[53]  She noticed that he was slurring his speech, sounded “tipsy” and sounded like he had been drinking.[54]

    [53]   This matches an 11:40am call from David Brumfield’s number to the accused’s number.

    [54]   T328, 359 (cross-examination); see also the evidence of Detective Cresp (T839-840).

    Forensic evidence found at the crime scene

28. Mr Veldhoen,[55] the crime scene examiner, gave evidence that two empty wine bladders[56] of a two litre and a four litre capacity, respectively, along with five empty cans of Woodstock (a bourbon and cola pre-mix drink) were located at or around the campsite.

    [55]   T108-110 (cross-examination).

    [56]   Exhibit P20.

29. The prosecution submits that this is not a huge amount of alcohol.  However, it must be remembered that the appellant and deceased may have consumed alcohol which they had taken with them at other locations, discarding the empty containers in the process. 

30. For example, Mr Ness, a local farmer, said that on the Thursday before Easter he had on two occasions seen the same car that was later found at the Lowana Road site.  He said that he had first seen it travelling slowly on Greenways Road.  It had one female and one male inside with the female driving.  About an hour later, he again saw the same car, this time parked in the scrub near Greenways Road.  He saw the male and female kissing while they were standing outside the car.

31. His Honour thought that these sightings may have taken place on the Friday, 22 April 2011, rather than the Thursday.  He stated:

    [186]On Friday afternoon Mr Ness, another local farmer, saw the deceased’s car in the middle of the road and observed two people, one female and one male, with the female driving.  I consider that this was about lunch time on Friday whereas the witness Mr Ness says it was about lunch time on Thursday.  Earlier he had been uncertain as to when exactly it was.  It is my view that he was mistaken as it could not have been on the Thursday at that time as the deceased was still at Victor Harbor.

    [187]On the same day after he had first observed the deceased’s car, Mr Ness also observed persons I find to be the deceased and the accused outside the car.  This time it was parked in the back of some scrub off Greenway Road.  Outside the car he saw a male and a female kissing.  He did not see the male’s face or body.  This area was what is known as Mitchies scrub which is approximately 2½ kilometres from the place where the deceased’s body was found in her car.

32. Further, quite apart from alcohol they may have originally taken with them, the Lowana Road site was only about six kilometres from Strathalbyn where further alcohol may have been obtained; the appellant and/or the deceased may well have known people there, or elsewhere, other than those at the South Terrace house.

33. I note that Mr Kerslake stated that he in fact saw the appellant outside the IGA store at Strathalbyn on the morning of that Good Friday.  He agreed the appellant might have been walking back to a car.  He stated:[57]

    Q     So you think it was the Good Friday that you last saw him?

    A     Yes, I do, that’s what I’ve written in my statement.

    [57]   T623.

34. The attitude of the prosecutor in her final address was that it may be that a trip back into Strathalbyn was made.  Thus, she stated:

    … in terms of Mr Kerslake, whether he is accurate as to when he saw the accused there, he might be right, he might be wrong.  On the prosecution case, it probably doesn’t matter.  …  It is there, maybe they did go back to Strathalbyn.

35. I generally agree, but these various uncertainties do underline the fact that very little weight at all can be placed on the number of empty receptacles found at the Lowana Road site as a basis for some maximum level of ingestion of alcohol during any particular period.

    The trial Judge’s approach to intoxication and specific intent

36. His Honour gave a correct general direction in his reasons for verdict (“the reasons”) as to the matter of proof of the specific intent for murder as follows:

    [430]I therefore come back to the evidence of intoxication.  Can I be satisfied beyond reasonable doubt on the evidence available, and any reasonable inferences from that evidence, that having regard to that evidence the accused did form the necessary intent for murder?

37. His Honour later in the reasons made a finding in corresponding terms:[58]

    [471] …  I find beyond reasonable doubt that the intention, to cause at least grievous bodily harm, existed at the time the accused inflicted the injuries on the deceased, and was not affected by his intoxication.

    [58]   This appears at AB 147.

38. However, the appellant contends that a consideration of other passages in the reasons, taken together with a close examination of the evidence in the case, make it plain that in moving from the very general statement at [430] to his ultimate finding in corresponding terms at [471], his Honour has erred.

39. Unfortunately, his Honour did not receive from counsel at trial much assistance or analysis concerning the correct approach to the possible effect of intoxication when considering whether the prosecution had established a particular specific intent by the appellant contemporaneous with the actus reus.

40. In his reasons, his Honour stated that he understood the submissions of the prosecutor (as to the matter of specific intent) thus:

    [376]On the question of intoxication Ms McDonald submitted that there is very little evidence from which I could conclude that the accused was so severely intoxicated as to be incapable of acting voluntarily and/or of forming the intention to cause grievous bodily harm.  Ms McDonald submitted that there are some aspects of the evidence that in fact pointed away from the extreme levels of intoxication which would be required to negative intention.         (Emphasis added)

41. A close reading of his Honour’s judgment confirms that he in fact considered that this was the correct approach and adopted it.

42. It is the case for the appellant that the above passage at [376] contained two closely related serious errors which, in overview, were as follows.

43. The first error was to suggest that, in relation to both the questions of voluntariness and specific intent, the relevant test was one of “incapacity”.[59]  Thus, as to the matter of specific intent (which was the central issue on appeal), his Honour clearly thought that the test was as to whether “I could conclude that the accused was so severely intoxicated as to be incapable of … forming the intention to cause grievous bodily harm at the relevant time.[60]  (I will further explain below why this, even taken alone, was serious error.)

    [59]   Counsel for the appellant made it clear on appeal that he would stand or fall on the basis of his submissions directed to the topic of specific intent and that it was unnecessary to the consider the matters of voluntariness or basic intent.

    [60]   R v Gardiner [2012] SASC 160, [376].

1. Dr Langlois accepted that a fall backwards was a possible cause of a number of the injuries suffered by the deceased:[204]

   QI am not suggesting for a moment that any of the injuries were necessarily caused by the deceased simply falling over backwards.  I am putting to you the last account of an altercation in which the deceased jumped on the back of the accused, they were both intoxicated, it was darkness, with, on [uneven][205] ground and in that course of that action they both fell over backwards and he landed on top of her he being 110 kg.  That’s what I’m putting to you.

   AYes, so that would account for or could account for injuries 8a, 8b, 8c, 8d, 8g [the liver laceration], 8h, 8i as well as on the back 29a and 29b and I believe we were at the stage of discussing whether we want to put 29c [the broad band of bruising] into that.

   [204] T637-638.

   [205] Again, while this was transcribed as reading “an even”, reading this sentence as a whole I take it that what was actually said was “uneven”.

2. Dr Langlois also agreed that the injuries around the deceased’s elbows (injuries 9 and 13) could have been caused by a backwards fall.[206] 

   [206] T651.

3. In relation to the shoulder injury, Dr Langlois stated:[207]

   QAnd could easily be explained by the scenario I postulated earlier about her being underneath or being on the accused’s back and both falling over backwards?

   AIt certainly could explain it.  It may be the head of the person holding her on the back snapped back and hit her on there or her shoulder hit something as she fell backwards.

   [207] T614.

4. In relation to the bruising to the side of the torso (injury 8e), Dr Langlois stated:[208]

   Q     And likewise could that include in that scenario 8e?

   A8e I think not because it is around the side, it’s not associated with fractures and it’s a clear area of bleeding into the tissue.  In my opinion it is due to a separate episode of blunt-force trauma at that site.  However, I suppose if they weren’t to fall straight back but to the side with the deceased’s arm being underneath them or maybe a rock or something being there it may create a direct impact to that point which could not be excluded.

   Q     So it could be included with the one physical action as postulated?

   AYes, as I explained, if it was the circumstance of falling not straight back but sideways and something impacting on that area.

   [208] T615-616.

5. In relation to the broad band of bruising (injury 29c), Dr Langlois stated:[209]

   [209] T619-620.

   A29c is a little bit tricky in that regard because again the small of the back tends to be a protected area.  If a person falls backwards the pelvis will hit the ground and the chest cage, or in this case we are postulating the spine, but the small of the back being recessed, relatively speaking, one wouldn’t expect it to hit the ground unless perhaps if a person was curled over, but then if a person is in a sort of curled foetal-type position, which one might assume in the scenario you’re suggesting, the whole of the back is then not flat because it’s not only going to be curved from top to bottom (INDICATES) there’s also going to be a curve from left to right, whereas the appearance from here seems to suggest the bruising is all the way across the back but definitely more present on the spine.  But it would depend on the surface the person has fallen back on.  If the surface is particularly regular and happens to be raised along that point then it could cause this injury and what one tends to think of is maybe falling backwards onto something that is particularly raised like a bar or something very broad.  So it isn’t straightforward to produce this type of band of bruising, but given the scenario you suggest I certainly cannot exclude it and would regard it as possible.

   …

   QAnd the likelihood of small raised mounds of dirt for example, irregular levels of dirt, could accommodate that kind of bruising?

   A     Yes, it could.

   Q     A pillow-sized, slightly raised piece of dirt or soil?

   A     Yes, if it’s particularly hard, yes.

6. Later, in relation to the other back injuries he stated:[210]

   QThey could also have occurred in the same action as the action which caused the crushing of the liver against the spine assuming that was caused by falling over backwards?

   AYes, assuming that they are caused by falling backwards with the weight of the accused on top of the deceased when she hits the ground and that the accused is not just over the chest but over the abdomen as well, then, yes.

   [210] T636-637.

7. Dr Langlois further indicated that the injuries to the sides of the head and the forehead,[211] the neck,[212] the right knuckle,[213] the left forearm,[214] and the legs[215] were not consistent with a backwards fall.

   [211] T520, 523, 532.

   [212] T536.

   [213] T556.

   [214] T558.

   [215] T559-563.

   The deceased’s perception of her injuries prior to death

8. At trial, counsel for the prosecution suggested that both the deceased and the appellant must have been aware of the suffering of pain by the deceased following infliction of the injuries and that in some way the non calling for medical assistance prior to death could be used to infer an intention to inflict grievous bodily harm at the time of infliction of the injuries on the deceased by the appellant.

9. To the contrary, counsel for the appellant suggested that the deceased may have suffered the severe injuries that she did without either she or the appellant being aware of their grave nature prior to death. 

10. There is considerable support for the position of the appellant in that, on the evidence, there were a number of factors which may have interfered with the deceased’s perception of the true nature of her injuries. 

11. The first, of course, is the effect of intoxication itself.  Dr Langlois was of the opinion that the deceased’s intoxication by alcohol and cannabis was a particularly important factor in inhibiting the deceased’s appreciation of her injuries as it could have dulled her awareness of them, including the head/brain injuries.[216]  Mr Irvine also gave evidence that a person with the BAC of the deceased, of 0.143 per cent, would be “fairly well intoxicated, they would be obviously intoxicated with their behaviour and had problems perhaps with slurring of speech, motor coordination judgment and reaction times will be adversely affected”.[217]  Taking into account the deceased’s small build and weight of 54 kilograms, he stated: “I would have thought she would be quite drunk, maybe even very drunk”.[218]

    [216] T588-589.

    [217] T874.

    [218] T876.

12. But quite aside from the effect of intoxication, Dr Langlois also gave evidence that some of the deceased’s injuries, although very serious, may initially have not produced much pain at all.  In relation to the head injuries, he commented that:[219]

    A… [the] subdural and the subarachnoid blood would then have a later effect but they could be more irritative in the initial phase, so indeed the person may have had an initial effect due to head trauma but then may have been able to stand and talk in a fairly functional fashion”.

    [219] T591.

13. Similarly, in relation to the liver laceration, he said: [220]

    A… there aren’t pain perceptions within the abdomen in the same way as on the skin, so the rupture of the liver or the tear of the liver wouldn’t necessarily have been painful but I may have provided a discomfort and the presence of blood in the abdomen does tend to be irritative but not necessarily painful as such, particularly in the early stages.

    [220] T590, 648 (cross-examination).

14. Another factor was the distracting effect of an ongoing fight or altercation.  Dr Langlois accepted that “an ongoing altercation or fight may be enough to distract a person from the realisation of the severity or even presence of the injury”.  He further stated:[221]

    AWell, anecdotally it could have quite a profound effect.  There are certainly accounts of people injured in battle situations where they sustain severe injuries and continue onwards and apparently in good functional form, despite blood loss or severe trauma and it’s likely that in a situation where there is an altercation or fight, that the release of adrenaline, which increases the heart rate or blood pressure, offsets the effect of haemorrhage and often in medicine we talk about distracting injuries but when there is something distracting a person from their injury, they may not perceive that they even have the injury let alone how severe it is ….

    [221] T590.

15. Finally, of course there is the possible effect of the appellant’s own state of intoxication to be taken into account when considering what knowledge he must have had as to the true seriousness of the injuries of the deceased.  Given that his intoxication may have been substantial and the manifestation of the deceased’s condition in any event may have been masked for the reasons referred to above, the possibility of him mistaking signs of effect of injuries for intoxication or tiredness of the deceased may be difficult to rule out.

    The appellant’s case on appeal

16. The appellant’s case is first to consider the possible mechanisms of infliction of the “blunt head, chest and abdominal trauma” (ascribed as the cause of death) and to note that Dr Langlois considered that:

    ·One blow of moderate force[222] and a fall[223] could have been responsible for all of the head injuries.

    ·Items 8a to 8e (the torso injuries) required trauma of mild to moderate force but two events could have been sufficient to cause all of them.  The possibilities of accidental self infliction as to at least some of them are discussed above.

    ·Items 8h and 8i were internal injuries (the lower torso injuries) and no external corresponding injury could be found.  Dr Langlois considered that moderate trauma was required but this could have come from either a blow or a fall by the deceased.

    ·Item 8g (the laceration of the liver) was by the most serious injury in the torso group, requiring severe force.  However, Dr Langlois agreed that the mechanism of the appellant falling with the full weight of the body of the deceased could cause that injury.

    ·In fact, Dr Langlois agreed that the scenario of the mechanism of the appellant falling with the full weight of the body of the deceased could cause at the one time all of the items 8a to 8i as well as items 29a and 29b.

    ·As to item 29c (the broad band of bruising across the back of the lower torso), Dr Langlois considered that it required an application of moderate to severe force, but agreed that its appearance may have been accentuated by the way the body was lying prior to being discovered.  The mechanism of its infliction largely remains a mystery.

    [222] Injuries 2a and 2c.

    [223] Injury 2b.

17. The appellant then asserts that the prosecution is unable to negate beyond reasonable doubt a sequence of events much along the following lines.

18. First, the injuries causing death may have been suffered by the deceased over the course of a relatively lengthy drunken brawl, or series of heated and drunken fights, which included both a number of intentional blows administered by the appellant with mild to moderate force and possibly one or more falls or other accidental impacts[224] by the deceased who was seriously intoxicated by alcohol and drugs.  The appellant relies upon the fact that Dr Langlois agreed that various of the injuries could have been caused in various ways.  Of particular note, he agreed that most, if not all, the injuries could possibly be explained by a “series of falls” rather than just one fall.[225]  Where, as here, it is postulated that a drunken brawl may have occurred between the appellant and the deceased off and on over a number of hours, such a possibility cannot simply be dismissed as “unlikely” but is required to be negated beyond reasonable doubt.

    [224] See exhibit P4, photographs 29 to 31 and the earlier discussion of the possibility that the deceased struck her head on a branch while running into it.

    [225] T587.

19. Second, a drunken brawl of the above sort may have occurred on the Saturday night and may have ended with the parties going to sleep late on Saturday night or early Sunday morning with neither aware of the seriousness of those injuries.  Here the appellant relies upon a detailed analysis of the evidence of Dr Langlois above.  It is to be emphasised that Dr Langlois considered it “entirely possible” that the deceased and the appellant may have had an altercation, as a result of which the deceased suffered the injuries described above, but that both went to bed (or fell asleep) without either being aware of the extent of the deceased’s injuries.[226]  It would seem to follow that if the altercation finally came to a close late Saturday night, both the appellant and the deceased may have settled down for the night (or the appellant may have done so after the deceased had passed out) unaware of the life threatening condition of the deceased.  The deceased may then have passed away in the early hours of the morning of the Sunday with the appellant awakening much later to find her in that condition.

    [226] T592.

20. Third, the appellant may have woken up at some time prior to 6:49am on Sunday, 24 April 2011, and discovered the deceased to be dead.  He submits that the series of attempted phone calls by the appellant to Mr Brumfield commencing at 6:49am on Saturday 23 April 2011, may have been prompted by that discovery.  It is to be noted that Dr Langlois accepted that death may well have occurred at some time during the period late on Saturday night to some time on Sunday morning.  As discussed above, Dr Langlois’ evidence is that the liver injury can be accommodated within this scenario.  The presence of an acute inflammatory reaction makes it more likely that the liver was initially only lacerated (leaving the capsule intact and then gradually tearing more with the accumulation of blood) rather than the quite different acute situation of the liver immediately tearing to the extent later seen on post-mortem examination. [227]

    [227] It has also been noted above that Dr Langlois acknowledged at T616, 637-638 (cross-examination) that the liver injury may have been inflicted by something like the backwards fall scenario.

21. Fourth, the appellant may have panicked, trying to call Mr Brumfield in a drunken state on a number of occasions and finally succeeding at 11:40am.

22. Fifth, the appellant may have, in a continuing intoxicated state, adopted the strange and ineffectual course of “hiding” the body by placing the quilt over it and later making up the ludicrous story of the deceased walking home after a car accident.  He may have done so not out of a consciousness of guilt of having committed murder, but simply out of drunken awareness that he had beaten the deceased and believing (correctly) that he would be accused of being responsible for her death. 

23. Against the above survey of the evidence and the contentions of the appellant, I return to the three alternatives to an order for retrial referred to above.

    Application of the proviso and dismissal of the appeal?

24. It is of course relatively easy to postulate a set of facts where it might be possible to apply the proviso and dismiss an appeal despite misdirections of the kind that occurred here.  I have in mind a quite different factual situation where the cause of death is very clear and the proof of the execution of the act(s) causing death of itself constitutes proof beyond reasonable doubt that, irrespective of the presence of intoxication on the part of the accused, such performance must have been accompanied by the requisite specific intent.  To take an example entirely divorced from the present facts, if a person were to fire four shots from a high powered bolt-action rifle at his enemy two hundred and fifty metres away, all four shots hitting the head in a very close group and killing him, such evidence might be so redolent of both an intention to kill and such skilful control of his faculties that the role of intoxication in such a case might be correctly interpreted as extending only to a diminution of restraint rather than a denial of the requisite specific intent.

25. However, the factual situation in the present case is very different.

26. The trial Judge in his reasons emphasises the defence reliance at trial on the particular factual scenario advanced in cross-examination of the single backwards fall causing all of the deceased’s fatal injuries in one fell swoop.  His Honour may well be correct in thinking that it is very unlikely that the deceased suffered each and all of the serious injuries in a single such accidental fall. 

27. However, that is by no means the end of the matter.  The rejection of the extreme hypothesis that one movement or action might explain everything does not thereby establish an intention to inflict grievous bodily harm; such a finding cannot turn solely on the probability or improbability of any one suggested scenario in a circumstantial case such as the present. 

28. In fact there is a spectrum to be considered here.  At one end is the extreme prosecution position that the appellant inflicted each and every of the various injuries suffered by the deceased with an accompanying clear intent to inflict at least grievous bodily harm.  At the other end is the extreme defence position of a backwards fall by the appellant onto the body of the deceased thereby causing all of the injuries in circumstances which could be described as entirely accidental.  The important point is that if, as here, it is asserted that there are a number of alternative rational hypotheses consistent with the absence of an intent to inflict grievous bodily harm between the two ends of the spectrum, the consequence of the correct application of the onus of proof is that the prosecution must be able to negate each hypothesis, or combinations thereof, before a verdict of murder can be justified. 

29. The statements of Gibbs, Stephen and Mason JJ in Barca v The Queen[228] referred to above are in point.

    [228] (1975) 133 CLR 82, 104-105. See also Stevens v The Queen (2005) 227 CLR 319, 329 [25] (McHugh J), 345 [78] (Kirby J), 369-371 [160]-[161] (Callinan J).

30. In the present case one notes that:

    ·The cause of death cannot be specified as a particular event but is put in the form of a number of possible alternatives or combinations.

    ·The time of death is vague and is in the form of a range of days rather than a particular time of a particular day.

    ·The acts alleged to have been performed by the appellant are sought to be inferred from the appearance and nature of injuries noted on post mortem but inferences may also be open that at least some of those injuries may have been attributable to accident (such as the deceased falling or running into an object) rather than a deliberate act by the appellant.

    ·Even if particular acts were deliberately performed by the appellant, there remains the question of whether an accompanying intention to inflict at least grievous bodily harm can be inferred beyond reasonable doubt in all of the circumstances and particularly including the matter of intoxication.

    ·One cannot be confident that either the deceased or the appellant were aware of the seriousness of injuries that the deceased had suffered until it was too late (for the reasons referred to above).

    ·The difficulty of inferring an intention to inflict at least grievous bodily harm may be increased rather than diminished by the assumption that the appellant had on previous occasions deliberately inflicted serious injuries on the deceased.  This is so because the deceased had not previously died or suffered grievous bodily harm and, as bad as the appellant’s conduct undoubtedly was, he may have had similar drunken expectation to that held on previous occasions, namely that not much permanent damage would ensue.  Alternatively, the effect of the appellant’s and the deceased’s mutual intoxication may have been productive of a situation where the appellant underestimated his own strength.

1. In all of the present circumstances, the inference of a specific intent of at least an intention to inflict grievous bodily harm is in no way overwhelming.  It is clear that an incorrect approach to the matters of specific intent and intoxication may have affected the result and accordingly it cannot be said that the appellant has had a fair trial according to law.  The proviso cannot be applied.

   Should there be a judgment of acquittal rather than an order for a retrial?

2. The next question that arises is as to whether there should be a judgment of acquittal (of both murder and manslaughter) rather than an order for a retrial.  This would be the appropriate outcome if it were thought to be unreasonable to infer either the specific intent necessary for murder or the lesser intent required for the crime of manslaughter.

3. Numerous precedents are available from both the United Kingdom and Australia of appellate courts setting aside convictions of murder and substituting convictions of unlawful and dangerous act manslaughter on the basis that while it was unsafe on the facts to infer the requisite specific intent for murder, it was quite safe to infer the necessary intent for the crime of manslaughter.  (Of course it is quite a different question as to whether it is appropriate to substitute a verdict for manslaughter as distinct from ordering a retrial on the charge of murder.  This separate question will be considered below.)

4. In the present case, it is clear that taking the evidence of intoxication fully into account in the most advantageous way to the appellant as outlined above, it would be quite open for the tribunal of fact to find that the mental intent for manslaughter is proven beyond reasonable doubt on the present evidence.  Accordingly, it would be inappropriate to substitute a verdict of acquittal of both murder and manslaughter.

   Should the appeal be allowed and a conviction of manslaughter be substituted for the present conviction of murder?

5. This final alternative question of whether the appeal should be allowed and a conviction of manslaughter be substituted for the present conviction of murder is by far the most difficult question. 

6. After anxious consideration, I have come to the conclusion that the present evidence could, even after taking the evidence of intoxication fully into account in the most advantageous way to the appellant, justify a finding beyond reasonable doubt that the requisite ingredients of the crime of murder are present, including the requisite specific intent. 

7. Accordingly, the formal order of the Court should be for a retrial on the charge of murder.

   The further proposed grounds of appeal

8. I can deal quite briefly with the further proposed grounds of appeal since none of them could entitle the appellant to a more favourable disposition than a retrial.

9. The first of the remaining complaints is that the Judge erred in rejecting a defence of self-defence (proposed ground 2).  There may be cause to believe that the deceased may have acted in a boisterous manner with some degree of violence or attempted violence on her part.  However, having regard to the respective sizes of the appellant and the much smaller Ms Towner, and the lack of any suggestion of a weapon being employed by her, I consider that the Judge was correct in his view that there was not sufficient evidence of self-defence to require or permit a defence of self defence to be left to the tribunal of fact.  Accordingly, I would refuse permission to appeal on proposed ground 2 of appeal.

10. In relation to the complaints as to the reception and use of prior discreditable conduct, I would grant permission to appeal on proposed grounds 3 and 4 of appeal but reject them.  I consider that the evidence there referred to was admissible and although I have some reservations as to the precise way(s) in which his Honour may have used the evidence, I do not consider that either of these grounds are made out.  I would also grant permission to appeal on ground 5 of appeal but reject that ground.

11. In relation to the complaint that the verdict was unreasonable or unsafe, I would grant permission to appeal on ground 7 of appeal.  For the reasons already given, I do not consider that the ground is made out in so far as it may suggest that a verdict of acquittal should be substituted for the verdict of guilty of murder on the basis that the verdict is unreasonable.

    Two final comments

12. I make two final comments.

13. The first comment is that while I have determined that a Judge or jury could infer the necessary specific intent for murder from the present evidence, that is not to say that that should be the result or that it is in any way likely that that would be the result on a retrial for murder.  It may well be that a verdict of unlawful and dangerous act manslaughter is much more likely than a verdict of murder.  I make no comment as to whether that is the verdict I would have returned since that is not the test that I must apply in making the present decision as to the appropriate order on this appeal.[229]

    [229] Spies v The Queen (2000) 201 CLR 603, 620-622 [43]-[50] (Gaudron, McHugh, Gummow and Hayne JJ)

14. The second comment is that while I consider that the formal order of the Court should be for a retrial on the charge of murder, that is not to suggest that it is my view that such a trial should necessarily proceed if the appellant is willing to plead guilty to the serious charge of unlawful and dangerous act manslaughter and the Director of Public Prosecutions is prepared to accept such a plea in discharge of the Information.  In this regard, I refer to the remarks of the Court of Criminal Appeal in R v Edwards, where Doyle CJ stated: [230]

    [59]An order for a retrial leaves open to the Director of Public Prosecutions the exercise of the power that he exercises in all cases, namely, to decide whether it is in the public interest that there should be a further trial.  In a case like this, that is always a difficult decision.  The Director can consider any matter relevant to the public interest, and in particular representations made to him.  … [I]t is important to understand that the Court’s order does not require that there be a retrial.

    [230] [2009] SASC 233. In that case the alternatives on appeal were a judgment of acquittal on the charge of manslaughter or an order for retrial on the charge of manslaughter but the general principles relating to the discretion of the DPP are the same. Following the appeal in Edwards, the DPP after considering submissions on behalf of the appellant entered a nolle prosequi on the Information.

    Proposed orders

    1Grant permission to appeal on grounds 1, 3, 4, 5, 6 and 7 of appeal.

    2Grant permission to amend ground 1 of appeal by striking out from sub-ground (i) the words “requisite degree” and substituting the words “extent that his intoxication had to be taken into account when assessing his state of mind at the relevant time”.

    3Grant permission to amend ground 4 of appeal by adding the passage:

    (iii)     erred in admitting and relying on evidence that the deceased nominated the accused as to the cause of the injuries in the two instances, namely August 2010 and February 2011.

    4Refuse permission to appeal on ground 2 of appeal.

    5Allow the appeal and set aside the conviction and the sentence.

    6Order that there be a new trial on the Information on a charge of murder

15. NICHOLSON J:   I agree that the appeal should be allowed for the reasons given by Peek J.  I agree with the orders proposed by his Honour.