R v Gardiner - [2013] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GARDINER
Criminal Trial by Judge Alone
[2013] SASC 206
Judgment of The Honourable Justice Kelly
24 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - REBUTTAL OF POSSIBLE DEFENCE - PARTICULAR CASES
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - ACCIDENT
The accused was charged with the murder of his partner who had died during a camping trip with the accused - accused pleaded not guilty to murder but guilty to manslaughter and elected to be tried by judge alone - the prosecution case was circumstantial - the defence case was that the accused was intoxicated at the time the injuries were inflicted and the requisite specific intent for murder was not proven.
Whether evidence of discreditable conduct admissible - whether probative value of the evidence of discreditable conduct substantially outweighs prejudice to the accused - whether prosecution proved beyond reasonable doubt that the accused had the specific intent for murder - whether prosecution excluded all rational hypotheses consistent with innocence.
Held:
(1) The accused is guilty of murder.
Evidence Act 1929 (SA) s 34P; Criminal Law Consolidation Act 1935 (SA) s 268, s 269(1), referred to.
The Queen v O'Connor (1980) 146 CLR 64; Wilson v The Queen (1970) 123 CLR 334, applied.
R v Gardiner [2013] SASCFC 53; Makin v Attorney-General (New South Wales) [1894] AC 57; R v Duke (1979) 22 SASR 46; Barca v The Queen (1975) 133 CLR 82; Festa v The Queen (2001) 208 CLR 593, discussed.

R v GARDINER
[2013] SASC 206
Criminal: Trial by Judge Alone
KELLY J.
Introduction

Jason Lee Gardiner is charged with the crime of murder. The particulars of the charge against him are that between the 20^th day of April 2011 and the 27^th day of April 2011 at Strathalbyn he murdered Katherine Dulcie Towner. Upon his arraignment the accused pleaded not guilty to murder, but guilty to the offence of manslaughter.
I make some general comments first before proceeding to deal with the evidence before me.
In considering the issues which arise for determination I have at all times borne in mind that the accused does not have to prove he is innocent. The accused is not to be convicted unless and until I am satisfied beyond reasonable doubt of his guilt on this charge.
The case against the accused is entirely circumstantial. Therefore I cannot find the accused guilty of murder unless I conclude that there is no reasonable explanation of all the evidence which I accept, other than that the accused is guilty of the crime of murder. To put that another way, if there is any reasonable explanation other than that the accused committed the murder of Ms Towner, then the accused must be acquitted.
The crime of murder is committed when a person deliberately and unlawfully causes the death of another person while at the same time intending to cause death or grievous bodily harm. That is the general proposition. The matters which the prosecution must prove beyond reasonable doubt therefore are:
1That the act or acts of the accused caused the death of Ms Towner;
2That the act or acts of the accused which caused the death were voluntary and deliberate, that is to say that they were the result of the exercise of the accused’s will and were not the result of an accident;
3The act or acts of the accused which caused the death were carried out with the intention of either killing Ms Towner or at the very least causing Ms Towner grievous bodily harm. By the term grievous bodily harm I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out; and
4Finally the killing was done without any lawful justification or excuse such as lawful self‑defence.
Background
The accused and deceased had been in a relationship since early 2010. At that time, they were 30 and 29 years of age respectively. At the beginning of the relationship, the accused worked as slaughterman at the local meatworks, Strath Pastoral Pty Ltd. He had held down this job since June 2008. The deceased was studying at TAFE and caring for her son, Shane Towner, who was approximately 11 years old and suffered from Asperger syndrome. The deceased cared for Shane with the support of her mother, Gail Hopkins and brother Sean Towner. Ms Hopkins described her relationship with the deceased at this time as a “normal, mother and daughter relationship”. They had ups and downs, but got on fairly well. Mr Towner described his relationship with his sister as a close one, “we always spoke and did everything together”.
The accused ceased employment at Strath Pastoral on 10 June 2010. At some point after this, the accused and deceased started living together at 142 Canterbury Road, Victor Harbor. Mr Towner said that from this point, he started seeing less of his sister. The deceased’s relationship with her mother also deteriorated somewhat.
Over the course of this relationship, the accused was incarcerated on three separate occasions. The deceased made numerous visits to the prison over this period, including on Christmas, Boxing and New Year’s days.
The accused was first incarcerated on 26 August 2010 for a charge of aggravated assault causing harm. He was released on bail on 7 January 2011. The case was subsequently dismissed for want of prosecution because, though summonsed, the complainant, Katherine Towner, failed to attend court. A month and a half later, on 18 February 2011, the accused was again incarcerated in relation to allegations of assault of the deceased. On 21 February 2011, he was released on bail. He came to live at 31 South Terrace, Strathalbyn after nominating it as his place of residence for the purposes of bail. The accused lived there with David Brumfield, a friend and previous workmate from Strath Pastoral, Mr Brumfield’s partner Kelly Stevens, and another Strath Pastoral worker, Grantley Hull. The accused was again placed in custody on 5 April 2011, for breaching the said bail agreement. He was released on 8 April 2011 and continued to reside at 31 South Terrace.
Though it was understood by Ms Stevens and Mr Brumfield that the accused and deceased were not permitted to see each other while the accused was on bail, the deceased stayed over at 31 South Terrace a couple of times. However, Mr Brumfield testified that after hearing a night of argument between the accused and deceased, he and Ms Stevens told the deceased that she could not stay overnight anymore. Thereafter, a trend developed whereby the deceased would pick up the accused from 31 South Terrace on a Thursday or Friday night, and they would go on clandestine camping trips for the ensuing days.
A number of witnesses in the trial testified to observing injuries upon the deceased on some occasions between approximately August 2010 and April 2011.
Witnesses also testified of arguments between the accused and deceased. Ms Stevens recalled another occasion when she heard the accused and deceased scream at each other for about half an hour using terms such as: “bitch, slut, wanker, dickhead”. Though witnesses heard arguments between the couple and observed injuries on the deceased, none observed the infliction of any physical violence.
There was evidence in the trial supporting the inference that the accused was an alcoholic through most, if not all, of the time that he was in a relationship with the deceased. According to some of the witnesses the regularity and quantity of the deceased’s alcohol consumption increased during the time she was involved with the accused.
The 2011 Easter weekend
The events which give rise to the charge of murder occurred between Thursday 21 April and Tuesday 26 April 2011. On the evening of Thursday 21 April, the accused and deceased left 31 South Terrace together in the deceased’s dark blue Toyota Vienta to go camping over the Easter weekend. Mr Brumfield provided them with some food, a blanket, a barbeque plate and some water. The accused told Mr Brumfield they were going camping, but did not indicate the location. There was evidence that the accused had been drinking prior to their departure. The deceased had not. One witness, Trevor Cutting, observed that before the accused and deceased left the house, they argued for about two minutes. Mr Cutting said the argument ended with a cuddle.
The chosen camping spot was unusual – the couple simply parked the car to the side of a road in a farming area of Strathalbyn. A number of farmers and land owners from the Strathalbyn area observed a blue sedan parked amongst some trees off to the side of Lowana Road on the Easter Friday evening, the Saturday morning, Saturday afternoon, and Monday afternoon.
On Sunday 24 April 2011, at 6.49 am, the accused made five separate attempts to call Mr Brumfield. He was successful at 11.40 am, and the two men spoke. Mr Brumfield testified that the accused told him that when he woke up in the morning he saw her lips were blue and called for an ambulance but they had not arrived. Mr Brumfield told the accused to check for a pulse, but says that because the accused could not understand him, he then handed the phone to his partner Ms Stevens. The accused repeated to Ms Stevens that he woke up in the morning and the deceased’s lips were blue. Ms Stevens then told the accused to check for a pulse and explained to the accused how to do so. After a pause, the accused said that he could not find a pulse, and Ms Stevens told him to call an ambulance. The conversation ended when the accused told Ms Stevens he had to go.
Approximately 48 hours after the phone conversation, in the morning of Tuesday 26 April 2011, the accused arrived on foot at 31 South Terrace. When asked by Mr Brumfield where the deceased was, the accused said they had a car accident and the car was in a tree near ‘Michey’s’. The accused said the deceased had walked home a few days ago, and that she was in a bit of a bad way.
Soon after this discussion, Mr Brumfield and friends Mr Cutting and Mr Hull went to collect Mr Brumfield’s camping gear from the car which had been left near Michey’s. Because the accused provided clear instructions as to the location of the vehicle, the three men located the car without difficulty. They observed that the left hand side of the vehicle had been covered with a blue tarpaulin. They noticed flies around the car and a rotten smell emanating from it. Mr Brumfield opened the car door and discovered the deceased lying in the reclined passenger seat. The deceased was wearing tracksuit pants that were partially removed so that her buttocks were exposed and a singlet top worn inside out. She was wearing underpants and socks. The body was covered with a blanket. A pair of shoes was found beneath her feet in the foot well on the passenger side of the vehicle were the deceased was lying. At 12.39 pm, Mr Cutting called the police.
Upon police search, two empty wine bladders (two and four litres respectively) and five 375 ml Woodstock cans were found in the car, and a port carton was located in the vicinity.
The accused was arrested at 31 South Terrace at 1.40 pm. An empty bottle of port was found near him. Police officers observed that the accused appeared highly intoxicated and he was conveyed to the Royal Adelaide Hospital for observation.
Defence case at trial
The defence case in summary is that there is an absence of any direct evidence about the circumstances of Ms Towner’s death from which inferences may be drawn. Although there is no direct evidence as to the accused’s level of intoxication during the critical period of time when Ms Towner’s injuries were inflicted, the whole of the circumstantial evidence points to the inference that the accused was drinking a large volume of alcohol over the Easter weekend. That evidence raises at the very least a reasonable possibility that the accused was so intoxicated that at the time when he caused the injuries which ultimately caused Ms Towner’s death, he could not have had the capacity to form an intention either to kill or cause grievous bodily harm. In the alternative, even if he was capable, there is no evidence from which the Court could be satisfied beyond reasonable doubt that at the time when the accused inflicted the injuries he did in fact form the intention either to kill or cause grievous bodily harm. In making that submission the defendant pointed to all of the circumstantial evidence as to the accused’s drinking patterns in the weeks and months leading up to the Easter 2011 weekend and to the circumstantial evidence about the accused and Ms Towner’s alcohol consumption over the Easter weekend.
Cause of death
Dr Neil Langlois, the pathologist, went to Lowana Road, Strathalbyn on 26 April 2011 and made preliminary observations of the body of Ms Towner in the position in which she was found in the vehicle. Dr Langlois is an experienced and highly qualified pathologist who carried out the post-mortem on Ms Towner’s body. He was a careful and thorough witness. It will be necessary to discuss in some detail the evidence Dr Langlois gave at the trial in order to fully appreciate the import of the opinions he expressed.
Although the post-mortem examination was compromised to some degree by partial decomposition which had taken place by the time of the discovery of the body, Dr Langlois’ observations and examination yielded important evidence about the nature of the injuries observed on the deceased’s body.
Dr Langlois identified the cause of death as blunt head, chest and abdominal trauma. He said:
A.I believe that the death has actually occurred from the interaction of the trauma sustained to the head, chest and abdomen rather than singling out one as necessarily and unequivocally fatal by itself. So the interaction of all of them has been combined to result in death.
While Dr Langlois acknowledged that the most severe injury was to the liver and it alone could have caused the death of Ms Towner, that is by no means the effect of his evidence when considered as a whole. Having remarked that the loss of one litre of blood from the liver would not normally be sufficient to cause death by itself, Dr Langlois went on to explain that much would depend on whether the person was lying flat after the injury was sustained and how quickly the blood was lost. Assuming that Ms Towner sat upright in the car (the position in which she was found) after the injury was caused and when she was still alive, he opined that the loss of one litre of blood in those circumstances might however be sufficient to cause death.
A body chart (P27) and two sets of photographs (P25 and P26) were tendered during Dr Langlois’ evidence. For convenience I will refer to that chart and use the same numbering as did Dr Langlois when discussing individual injuries.
The number of injuries observed on Ms Towner’s body was indeed significant. After excluding a significant number of potential injury sites which were also consistent with the effects of decomposition, Dr Langlois was satisfied that the following injuries he documented were true injuries or the effects of injuries as opposed to artefacts of decomposition:
2a.Spotty haemorrhage within the right temporalis muscle;
2b.Haemorrhage 3 centimetres in diameter on reflection of the scalp in the midline of the superior aspect of the forehead;
2c.Haemorrhage 3 centimetres in diameter under scalp above left ear;
3.Thin film of subdural haemorrhage over brain with subarachnoid blood. Multifocal APP staining in the anterior, middle and posterior corpus callosum;
4.Bruising 1.5 centimetres in diameter overlying the left angle of the jaw;
6a.Haemorrhage into the superior third of the left sternocleidomastoid muscle;
6b.Haemorrhage 2.5 x 2.5 centimetres in the clavicular head of the right sternocleidomastoid muscle;
6c.Old fracture of the right greater horn of the hyoid bone with overlying haemorrhage 1 x 2 centimetres;
8a.Haemorrhage 1 centimetre near the insertion of the 3rd rib into the right side of the sternum;
8b.Haemorrhage, 1 centimetre, around the right 3rd rib in the mid-clavicular line where the rib was fractured;
8c.Fractures of the 5th to 7th ribs in the right anterior clavicular line;
8d.Haemorrhage over the 6th and 7th ribs in the right anterior clavicular line;
8e.Haemorrhage in the intercostal muscles between the 8th to 10th ribs in the left anterior axillary line to the right mid-axillary line in the inner aspect of the thoracic cage in the area 8 x 13 centimetres;
8f.One litre of blood with some clot within the abdominal cavity;
8g.Focally full-thickness 7 centimetre laceration of the inferior portion of the left lobe of the liver, 2.5 centimetres left of the midline;
8h.Around region of retroperitoneal reflection of descending colon before the origin of the sigmoid colon haemorrhage 2 x 8 centimetres;
8i.Deep haemorrhage overlying pubic symphysis extending into the left and right iliac fossa regions;
9.Ill-defined dark discolouration in area 4 centimetres across around the medial epicondyle region of right elbow with 1 x 2 centimetres area of abrasion;
10.Subcutaneous bruising 1 centimetre under skin of metacarpophalangeal joint (knuckle) right index finger;
11.Over superior aspect of left shoulder green area 3 x 2 centimetres with subcutaneous haemorrhage;
13.Ill-defined green discolouration of posterior left upper arm, immediately above elbow;
14.Around mid-height of left forearm on flexor surface orange-brown discoloured area 3.5 x 1.5 centimetres;
15.On the anterior and lateral aspects of the proximal half of the right thigh purple areas 2 centimetres to 4 centimetres across;
19.On lateral aspect of the right ankle 3 centimetres in diameter red area;
24.Red discolouration of the skin and parchmented abrasions over the proximal two-thirds of the anterior aspect of left lower leg;
25.On lateral aspect of mid-height of left lower leg 10 centimetre vertical abrasion;
27.On anterior aspect of left ankle 0.1 x 0.3 centimetre abrasion;
29a.Bruising 2.5 centimetres in diameter under skin, above top aspect of right shoulder blade;
29b.Bruising 9 x 9 centimetres under skin between shoulder blades; and
29c.Broad band of bruising under skin of back across the width of the flank (between the lower costal margin and top of the pelvis).
The actual blood alcohol reading from the blood taken from the liver was 0.143 and from the vitreous humour in the eyes 0.149. However Professor White estimated that the deceased’s blood alcohol concentration at her time of death was likely to be around 0.134 grams of alcohol per 100 millilitres of blood.

The significant injuries observed on the deceased can be grouped into the head injuries, the neck injuries and a group of injuries on the front and back of the deceased’s torso. For present purposes the minor abrasions and marks observed on the legs do not have any particular significance however for completeness I shall include reference to them.
Dr Langlois referred to the injuries on Ms Towner’s neck as injuries 6a, 6b, 6c, 4 and possibly 11. He expressed the opinion that these injuries were due to some kind of blunt trauma. Injuries around that part of the neck area are typically caused by application of force to the neck. For example, bruising in that area can be caused from hands being applied to the neck in an attempt to compress it. Although Dr Langlois was prepared to concede that the injuries to the left and right side of the neck (6a and 6b) could have been caused by a clumsy person feeling for a pulse, he pointed out that because of the upward incline position in which Ms Towner was found, and the presence of bleeding in the tissue and inflammation at those injury sites, those injuries could only have been inflicted whilst she was still alive. Dr Langlois identified the injury at 6c as an old fracture of the hyoid bone, by which he meant at least several days to a week or more old. The injury to the hyoid bone was the only injury observed by Dr Langlois that in his opinion did not have the appearance and characteristics of being contemporaneous with all the other injuries.
Although Dr Langlois agreed that both injuries on the left side of the neck (4 and 6a) were non-specific blunt force type injuries that could have been caused by walking or running into a tree branch, he opined that forensically the appearance of those two injuries is more typically associated with cases of compression of the neck. This is particularly so when taking into account injury 6b which was another blunt force type injury to the right side of the neck. Dr Langlois said that the most common method of fracturing the hyoid bone is also by neck compression. Thus evaluating all of the injuries he observed on the neck including the old injury, Dr Langlois favoured neck compression as the most likely explanation for those injuries. He said that it is necessary to evaluate the injuries as a whole because while each individual injury could have a number of interpretations (each of which may be completely reasonable), when one puts everything together only certain interpretations really remain tenable.
Dr Langlois was also asked about injuries to Ms Towner’s head. He found three separate areas of damage which he described as injuries 2a, 2b and 2c. These injuries had an appearance consistent with having been caused one to two hours before death. Each was a blunt trauma type injury consistent with application of mild to moderate force.
Dr Langlois also expressed the view that the injuries to the head implied at least two applications of force. Each of the injuries were on a different plane. He said:
A.Absolutely for three different sites it - I cannot conceive of one mechanism for doing that. As I explained for two of them, maybe a hit on the side could project somebody to go forward and give two, but you can't get the third. So, it has to be a minimum of two events or two strikes or two falls or two impacts, but more likely three.
The neuropathological examination of the brain also showed a subdural haematoma and a subarachnoid haemorrhage (3). Both were consistent with blunt force trauma such as a blow to the head causing the head to move or if the person fell and hit their head, such trauma might have produced a brief loss of consciousness. Dr Langlois also said that the injury which he observed over the left side of the jaw (4) may explain the neuropathological findings in the brain. He said:
A.Yes, it could, because a blow to the angle of the jaw could cause the head to rotate and it is the rotation or sudden movement of the head that then effective [sic] shakes the brain and can cause the tearing of the blood vessels and the damage to the nerves in the corpus callosum. An impact to the angle jaw would be a good site in fact to produce that sort of change.
Numerous injuries were noted on the torso including fractures to the third, fifth, sixth, and seventh ribs in association with a number of haemorrhages (8b, 8c, 8d). In Dr Langlois’ opinion moderate to severe force must have been applied to cause those rib fractures.
In addition Dr Langlois observed that the liver had been lacerated. There was a seven centimetre tear which had gone through the full thickness of the liver (8g). In association with that laceration was about one litre of blood contained with the abdominal cavity (8f). Dr Langlois opined about two possible mechanisms for the cause of the liver injury. One was that it was a result of an application of compressive force over a larger area of the deceased’s body. The other potential mechanism was a more direct force such as a kick, punch or stomp. I consider that the effect of his evidence is that either of those mechanisms would have required the application of severe force.
There was also an area of deep haemorrhaging over the pubic bone and around the colon. Once again those injuries were consistent with a range of possible causes including a blow, a punch or a kick, or diffused compressive force applied over the chest and abdomen. Dr Langlois was asked:
Q.What I am trying to ask you, what are the possibilities, assuming it is not a resuscitation effort, what are the other possibilities. What could have happened here.
A.One interpretation when you have multiple injuries, as we have on 8A with the bruises, fractured ribs and injury on the left side, ruptured liver, bruising over the colon and later talk about the bruising over the region of the pubis, is a series of blows. But unfortunately the medical mind is trained to try and look at one solution for multiple appearances. So multiple blows could produce that but we try and look for another. One solution that would produce all of that would be a person lying on their front on the ground.
Q.On their front.
A.Yes. Then having a heavy weight or compressive force on their back pressing them down against the ground. Either one would fit.
Later Dr Langlois was asked to comment about the minimum applications of force required to produce the injuries which he observed on the body. He said:
A.Now, if we start with the head, I think pretty much we agreed that one injury alone will not produce everything that's there, but I can get it down to two. So if, for example, there was a blunt head trauma or a blow or a knock to the head that caused 2A, that then caused the deceased to fall forward, that could cause 2B, and the falling forward could then produce the head injury which is 3. But 2C cannot occur as a result of that sequence. Or, conversely, 2C may have knocked the person, the deceased, to the floor causing 2B and 3, but then we're left with 2A.
He expressed the view that injuries 6a, 6b, 4, and 11 could all have been caused in the same action by hands being applied to the neck region. He then went on to say:
A.I think it is possible that all the injuries with a number 8, which is 8A through to 8I inclusive, plus 29A, 29B, 29C, which were on the back, also 9, which is on the right elbow, and 13, which is also on the back of the - so that's in the back left upper arm, around the elbow, could have occurred all due to one actional mechanism.
Q.Which is; what are the range of possibilities there.
A.One possibility would, if the victim were like in a piggyback position on another person, so their arms were around them, that's retracting the shoulderblades as we discussed (INDICATES). The shoulderblades had to be retracted around the body to cause 29 on the fall backwards, so they are sort of like a koala bear hugging a tree, on a person's back, and then that person probably needs to move with force, probably needs to forcibly throw themselves backwards such that the victim ends up trapped between the ground and the person they are hugging effectively, or holding onto, but for that to incorporate all the injuries the deceased is going to have to fall back onto a substantially hard surface, also a substantially hard surface that can create that broad band of bruising across 29C. 8E can be incorporated if, as they both go down, the left elbow of a person who had been holding her up happens to strike the left side of her chest.
That scenario effectively deals with the injuries observed on the torso, back and front excluding the old fracture to the hyoid bone, which I have not included as it was plainly caused earlier than the rest of the injuries observed by him. Dr Langlois said:
Q.So that's your first option, that all of those injuries could have been caused by that hypothetical scenario as described. What are the other possibilities.
A.Sorry, and the elbows hitting the ground on the way down. The other one we discussed -
Q.What do you mean by 'the other one we discussed'.
A.The run over, a tyre going over the small of the back.
Q.Yes.
A.With that suddenly 29C and all the 8 injuries can be incorporated. I find it a bit harder then to incorporate 29A and 29B, 9, 13 and 18.
Q.Right, on that scenario of the tyre running over.
A.Yes, so the victim being face down and the tyre going down the back. But - and then we're left with a number of bruises on the right thigh, which is 15, an injury on the right ankle, which is 19, and the injuries 24, 25 and 27 that are on the lower leg. In this environment one can imagine a person, for example, running. They're non-specific bruises. I cannot really put a number on that because essentially one event of running through a wooded area could produce all those injuries. So, if - I'm going to have to discount the lower limbs because they're relatively trivial and innocuous, and we say the main injuries are the neck, head and chest, it comes down to a minimum of four events and two mechanisms.
Q.Yes, I've got it.
A.Right, thank you.
XN
Q.The two mechanisms being blunt force trauma.
A.Yes.
Q.And compressive force to the neck.
A.Yes.
Dr Langlois then went on to explain in some detail the choreography required for all of the injuries on the back and torso to have occurred in the one event. He described the following scenario:
Q.Does that require the bodies to fall into any particular, as it were, synchronicity to each other.
A.Yes, the victim and the person supporting her would have to, and I said, probably more than just simply fall but to be projected backwards together such that then the person who is being supported then lands on top of the victim creating a broad compressive force across the front of the chest and the abdomen which results in the injuries we see at the front. Also in some way the person who is holding the victim, their left arm has to flail to produce injury 8E, which is slightly more around the side of the body.
Asked about the various possibilities he went on:
Q.Could I just ask you this question, leaving aside that scenario of the koala on the back example I will call it, because that's convenient because you referred to it, leaving that aside, are there other possible cause or causes of the injuries on the back and the front which could have accounted for the infliction of those injuries at the same time. Do you see what I'm saying. Is there any other scenario that might have caused, as a block, those injuries you just described as 8A to 8I inclusive, 29A, B and C, 9 and 13.
A.The run over and the koala on the back were the main scenarios discussed.
Q.Either of which could have produced that combination of injury.
A.Yes. One can construct any degree of fantastical situation. For example, the deceased may have been lying on her front when a lumbar jack knocked down a tree of substantial size that happened to fall across her back causing 29C, all the injuries on the back, then the tree was removed before we arrived at the crime scene.
As for the band of bruising to the back torso area (29c) Dr Langlois opined:
Q.Would the application of force to that area need to be, in effect, widespread.
A.Yes, it would.
Q.Would the application of force to that area necessarily have to cover the full width of the small of the back.
A.Yes, it would because there was a band of bruising. Although the bruising was patchy it was clearly in a band across the whole of the lower back.
Q.If that were occasioned by a fall to the ground, on to what sort of surface would you expect someone to have to fall in order for that band of bruising to occur.
A.It would have to be a particularly hard surface in order to be able to create the bruising and it would have to be raised to fit into the small of the back in the order of 17 cm high or wide and at least the width of that back. These occasionally occur, for example, when the ground is irregular and there may be a raised area of the ground but it would have to fit those specifications to produce that band.
The pathologist agreed that none of the injuries answered the question as to who may have been the aggressor in any altercation between the accused and Ms Towner.
He agreed in cross-examination that there was really no way of telling if the injury to the liver started as a bruise or a small tear but said that the end result was a major tear. In his view the presence of acute inflammatory reaction in the liver indicates that there was a period of time between the injury to the liver and Ms Towner’s death. Given the unknown variables involved, the pathologist was unable to be any more specific than to give a range of approximately at least one hour of survival up to 12 hours of survival after the infliction of the liver injury.
Ms Towner could have walked to the car and seated herself in the position in which she was found even after having sustained all of the injuries observed upon her. In cross-examination Dr Langlois was asked:
Q.A fall backwards during a struggle with the other party falling on top could accommodate that back bruising and the liver injury and, as you said, all of the eight injuries except for 8E, I think it was.
A.Even 8E could be incorporated. Obviously it would depend on the height and build of the person who falls backwards. If it is a particularly large and heavy person, just a simple fall backwards alone may be enough. If the person who is doing the supporting falls backwards is short and slight, it would require a projected fall backwards such as running backwards and tripping to produce the injuries, including the laceration of the liver.
…
Q.Would it be fair to say that most of the explanations as to the mechanism or the mechanisms that caused those injuries that you observed are speculative.
A.In terms of the three possibilities: lying face down and run over; the falling backwards in the koala hug situation; or multiple applications of blunt force, they are equally speculative and - or the pathology or the post-mortem findings, none of that will address which of those speculations is more likely or less likely.
Dr Langlois was also questioned about a number of other possibilities as to the possible causes of many of the individual injuries which he observed on Ms Towner’s body. He agreed with the proposition that Ms Towner might have been able to walk and get herself to the vehicle without any loss of consciousness. The deceased’s blood alcohol level at the time of her death was such that the effects of alcohol may have reduced her perception of the severity of her injuries. This is particularly so in light of the fact that the blood alcohol reading also revealed that at some stage Ms Towner had been smoking cannabis. Dr Langlois also agreed that it was impossible to be precise about the timing of the injuries in relation to Ms Towner’s death. Dr Langlois agreed in cross examination that following the last of her injuries, Ms Towner lived for at least two hours and possibly up to six. He then added that it could not be excluded that she lived for longer than this.
Dr Langlois’ opinions as to the various possible causes of the injuries he observed are helpful; however in the end his opinion did not go much further than to posit a range of possible causes of the injuries and a range of possible mechanisms by which those injuries were sustained. Dr Langlois acknowledged that it was not his role to determine which scenario was more or less likely.
In determining whether any of the possibilities canvassed during the course of his evidence are reasonable possibilities or remain merely hypothetical, it is necessary to have regard to the whole of the evidence at the trial. That evidence includes, of course, the nature and extent of the injuries themselves together with the expert’s opinion as to the range of possible mechanisms and causes, the whole of the evidence as to the background of the relationship between the accused and the deceased, and the observations of others in relation to the known behaviour of the accused both before and during the Easter weekend of 2011. In this respect I am referring to all of the evidence I heard about the accused’s behaviour and level of intoxication on other occasions. It is to that evidence I now turn.
Evidence of discreditable conduct
At the commencement of the trial the prosecution filed a notice of intention to adduce evidence of discreditable conduct (“the Notice”).
I deal briefly with that evidence now in the order referred to in the Notice.
1a) Evidence of the relationship between the accused and the deceased, including uncharged acts of violence by the accused against the deceased
Under this heading the prosecution relied on evidence of injuries and bruising seen on the deceased at various times and by various witnesses in the year preceding her death in April 2011. This evidence was said to be relevant to proving the nature of the relationship between the accused and the deceased, namely that it was a violent one in which, on the prosecution case, the accused inflicted a number of injuries on the deceased, including quite severe injuries inflicted on 26 August 2010 and 18 February 2011. There were other instances of alleged violence before and after those dates, however the two most serious occasions led by the prosecution were 26 August 2010 and 18 February 2011.
In submitting that the evidence ought to be admitted, the prosecution argued that the evidence sought to be led tended to rebut any suggestion that the accused had acted in self-defence or that the death of Ms Towner was an accident. The evidence included evidence of family and friends, police, counsellors and doctors who had observed Ms Towner exhibiting a number of bruises, marks and behaviours consistent with having been injured by the accused. On those occasions no one observed injuries other than minor scratches and abrasions on the accused. This suggests that whatever the nature of the altercation between the accused and the deceased, Ms Towner always came off with significantly more serious injuries than the accused. Allied to that evidence was the evidence of the arrest and incarceration of the accused who was subsequently bailed after those incidents. This material was also relevant to explaining the relatively clandestine nature of the relationship between the accused and Ms Towner at least after 7 January 2011, which was when the accused was first released on bail and not permitted to contact Ms Towner.
Some of this evidence was also relevant insofar as it demonstrated some aspects of the accused’s state of mind during the relationship in that it was always as a result of a report made by Ms Towner that the accused was arrested and gaoled. This happened on at least three occasions during their relatively short relationship. The evidence was said to be relevant and important to explaining the overall toxic relationship between the two, which was punctuated by verbal arguments, usually after drinking, and sometimes resulted in the infliction of serious injuries and the subsequent arrest of the accused. It goes some way to explain the complexity of the “love hate” relationship between the accused and deceased. It was also said to be relevant to any evaluation of the evidence as a whole, including the evidence of Mr Brumfield and Ms Stevens and their apparent lack of knowledge or interest about where the accused and Ms Towner were over the Easter weekend in 2011.

It was said that the evidence of the injuries observed on Ms Towner in August 2010 and February 2011 tended to rebut any suggestion that the deceased was the physical aggressor or that she was a willing participant in a physical free for all. Finally, that evidence was said to be relevant to the evaluation of the pathologist’s evidence as to the likely mechanism and cause of the many injuries observed on the deceased’s body. In this respect Mr Nitschke pointed to the scenario put to the pathologist in the first trial that a substantial number of the injuries on the back and torso of Ms Towner may have been caused in one complex choreographed movement after the deceased jumped on the back of the accused (then fell backwards with the accused landing on top of her).
Mr Vadasz submitted that even if the accused did inflict the injuries it could not be proved that they were inflicted in circumstances amounting to an unlawful assault.
Contrary to Mr Vadasz’s submission and as Vanstone J pointed out in R v Gardiner[1] whether or not those injuries were caused in circumstances where the accused could have been found guilty of assault is really beside the point. That is not the use to which the prosecutor sought to make of the evidence, nor is it the purpose for which it is admitted.
[1] [2013] SASCFC 53.
The test for admissibility under s 34P of the Evidence Act 1929 (SA) (“Evidence Act”) is satisfaction that the probative value of the evidence substantially outweighs the prejudicial effect it may have on the accused. In my view that test is satisfied in the case of the evidence sought to be adduced by the prosecution concerning the relationship between the accused and the deceased, including uncharged acts of violence by the accused against the deceased. Moreover this is a trial by judge alone. Judges are accustomed to putting irrelevant and or prejudicial matters out of their minds.
The evidence sought to be led here is an integral part of the relationship between the accused and the deceased. It has a number of permissible uses. I am mindful of the fact that this evidence cannot be used to suggest that the accused is just the type of man to assault his partner and leave her for dead or any similar such suggestion. For these reasons I admitted that evidence.
1b) Evidence of the accused’s use of alcohol and drugs
I have doubt as to whether this evidence does fall within the ambit of s 34P of the Evidence Act. Nevertheless out of an abundance of caution and because the evidence sought to be led is that the accused regularly drank to excess, I have evaluated the application of the prosecution to lead evidence of the accused’s consumption of alcohol and drugs in terms of the test under s 34P, that is, whether the probative value of the evidence sought to be led substantially outweighs its prejudicial effect. There is no doubt that the accused’s consumption of alcohol is a critical issue in the trial. It is relevant to a number of issues at the trial but most importantly to the elements of voluntariness and specific intention necessary for the crime of murder. It is also relevant to explain the nature of the relationship between the accused and deceased, which was patterned with conflict in the context of alcohol consumption.
Consumption of alcohol has been a fact of life for the accused for some time. There is, it seems to me, almost no prejudicial effect in admitting the evidence of the accused’s consumption of alcohol and cannabis provided that I bear firmly in mind that the consumption, even excessive consumption, of either drug is not to be used to infer that he is a man of bad character and, for that reason, more likely to commit the crime of murder.
For these reasons that evidence was admitted.
1c) and 1d) Evidence that the accused was on bail and that the accused was breaching bail by having contact with the deceased
Both aspects of evidence sought to be led here are integral to the evidence of the relationship between the accused and the deceased (paragraph 1a of the Notice). At the time of offending, the accused was on bail for an alleged assault against Ms Towner. The evidence that he was breaching his bail helps to explain the clandestine nature of the relationship in the months between January and Easter 2011. The fact that he was breaching his bail explains why they went away together on the Easter weekend of 2011 and the isolated nature of the place where they camped. For the same reasons referred to in paragraph 1a, this evidence is highly probative of the nature and complexity of the relationship between the accused and the deceased and I am in no doubt that its probative value substantially outweighs its prejudicial effect. Once again I remind myself that the mere fact that the accused was breaching his bail has no relevance to the issue of whether he murdered Ms Towner.
1e) Evidence that some money was missing from Colin King’s wallet after the accused and the deceased left David Brumfield’s house on 21 April 2011
During the course of argument I indicated that the evidence sought to be led under this heading was not in my view evidence of “discreditable conduct”. I remain of that view. Evidence of a person’s opinion, even if it is that the accused or the deceased may have taken some money out of someone else’s wallet, could never of itself amount to evidence of discreditable conduct. That is because opinion evidence is irrelevant in any event.
After Mr Nitschke explained the relevance of the text messages to the prosecution case concerning that missing money, I formed the view that the evidence was at best only marginally relevant to any issue at the trial and excluded it. Its relevance was said to lie in the fact that the exchange of texts about the money might explain the genesis of any hostility which the accused felt towards the deceased that weekend. It was on this basis that I declined to admit the evidence; however I left open the possibility that the number and timing of text messages from Mr Brumfield to the accused’s phone and vice versa on Thursday, Friday and Saturday of the Easter 2011 weekend may well have some relevance.
1f) Evidence that the accused lied about the deceased having been injured in a car accident and having called an ambulance
It was suggested that lies told by the accused after the time when the victim must have died were also inadmissible. The particular lies under consideration here were first, that the victim had left the area where the car was parked and walked home and second, that the accused had called an ambulance but the ambulance did not arrive. That the second statement was indeed a lie was proved by evidence that no call was ever made to 000.
It was suggested that both lies amounted to discreditable conduct within the meaning of s 34P of the Evidence Act and that evidence of those lies fell to be excluded by operation of s 34P(2)(a), the prejudicial effect associated with them outweighing any probative value.
Section 34P follows a similar format to the classic formulation of Lord Hershell in Makin v Attorney-General (New South Wales)[2] and plainly covers the old similar fact or propensity rules. However, it does go further than that because it also covers evidence of discreditable conduct which is not relied on for propensity or disposition purposes.
[2] [1894] AC 57.
The lies are very closely connected with the events which caused the victim’s death. While they obviously are not conduct constituting the offence, they nevertheless form part of the circumstances surrounding the offence. Plainly they do not raise the suggestion of any other offence being committed. To that extent their prejudicial effect is limited. The prejudicial effect contemplated by s 34P(2)(a) of the Evidence Act is prejudicial effect other than probative value. It is incidental prejudice which arises from the evidence in the sense explained by King CJ in R v Duke[3] which must be placed in the balance. In Festa v The Queen[4] Gleeson CJ elucidated as follows:
… some care is needed in the use of the term "prejudice". Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.
[footnote omitted]
[3] (1979) 22 SASR 46 at 47.
[4] (2001) 208 CLR 593 at [22].
The lies told by the accused are plainly relevant to the accused’s state of mind in relation to the way in which the victim met her death. Irrespective of whether they are indicative of or could show a consciousness of guilt in relation to Ms Towner’s death by either murder or manslaughter, nevertheless they have probative value as items of circumstantial evidence which substantially outweighs their prejudicial effect.
For these reasons I admitted evidence of the lies at the trial. How exactly I have used the lies is explained below.
Evidence about the relationship between the accused and the deceased
Some of the background of the relationship between the accused and Ms Towner has already been discussed briefly in the context of my reasons for admitting evidence of discreditable conduct. That evidence relates to previous alleged acts of violence by the accused towards the deceased and the accused’s habitual excessive consumption of alcohol.
As I have found, the evidence which was led about the relationship between the accused and Ms Towner is relevant to a number of issues at the trial. On the prosecution case, it is relevant to understanding the context in which arguments developed between the accused and Ms Towner and which may have been the genesis for what happened over the Easter weekend of 2011.
On the other hand the accused has also relied on aspects of the relationship history in submitting that there should at the very least be a reasonable doubt whether the accused could have formed an intention to kill or cause grievous bodily harm to the woman he loved. Mr Vadasz pointed to various aspects of the evidence about their relationship as observed by others and also tendered as part of the defence case a number of text messages (D8) passing between the accused and Ms Towner in the period before her death.
The evidence establishes that the relationship began sometime in the first half of 2010. Evidence given by the deceased’s family and friends was to the effect that before Ms Towner met the accused she lived in a close relationship with her family and was a caring mother to her disabled son. It was only after the relationship between the accused and Ms Towner commenced that some of her friends and family noticed for the first time that Ms Towner had bruises, black eyes and cuts and abrasions. Their evidence was challenged by Mr Vadasz who tendered a statement of agreed facts (D7) which demonstrated that Ms Towner attended the Victor Harbor Hospital or Victor Harbor Medical Centre seven times between 30 May 2003 and 11 February 2009 with injuries to different parts of her body. The suggestion faintly surfaced during the trial that prior to engaging with the accused, Ms Towner was seeing someone by the name of Michael. Be that as it may, I do not consider there is anything in the fact of the deceased’s attendances at the hospital during the time period referred to in the statement of agreed facts, or anywhere else in the evidence for that matter, which raises in my mind a reasonable doubt that it was the accused who was the author of the injuries observed on Ms Towner in 2010 and 2011.
Earlier injuries to Ms Towner
I shall now refer to the evidence of a number of lay witnesses who observed injuries on Ms Towner at various times. Ms Edwards, the school counsellor and Ms Moores, the school Chaplain both observed injuries on the deceased on 18 February 2011. Ms Moores also observed injuries on Ms Towner prior to and in August 2010. Ms Hopkins observed injuries on her daughter on about four occasions including an occasion in August 2010 and on 18 February 2011. Mr Towner saw his sister outside Woolworths with the accused one day in late 2010 or early 2011 exhibiting a black eye and again saw her with a black eye two to three weeks later at 142 Canterbury Road where she was then living with the accused. Ms Jeisman, who was Mr Towner’s girlfriend during the relevant period, described an occasion when she and Ms Hopkins went to Canterbury Road to pick up Shane Towner. She observed injuries on Ms Towner’s face that day. She noticed that the accused was present as she saw him draw the curtain from inside the house.
The injuries observed by others in August 2010 and on 18 February 2011 were well documented. In August 2010 Ms Towner had scratches on her neck, the right side of her head, her left inner arm and left leg, and grazing on her forehead. Those injuries were documented by Constable Turner who photographed them on 27 August 2010 at her address at 142 Canterbury Road. A police officer who spoke to her on the same day described Ms Towner as upset and apparently afraid.
The injuries observed by others on Ms Towner on 18 February 2011 were also well documented. Dr Fowler, a medical practitioner from Victor Harbor, examined Ms Towner on 18 February 2011. He described her as being in a very distressed and tearful state. She was unable to talk clearly because of injuries to her throat. She looked like a very scared individual. Ms Towner had multiple bruises and abrasions on her face, several bruises on her neck and multiple scratches and abrasions on the rest of her body. Her abdomen was tender. The injury that most concerned the doctor was an injury on the left hand side of her neck. The doctor remarked on the severity of the injury at the time and expressed his concern that Ms Towner’s difficulty with speaking might be related to trauma to the larynx or swelling and bruising in the trachea. Either of those explanations could signify serious injury.
It is my view that the evidence of the injuries observed on Ms Towner on 18 February 2011 is consistent with Ms Towner having been subjected to a severe beating. Furthermore, although I cannot make a finding beyond reasonable doubt, it is likely that the old fracture of the hyoid bone observed by Dr Langlois at the post-mortem was caused at the time when she sustained the injuries on 18 February 2011.
In addition to the injuries observed by members of Ms Towner’s family, another friend Sean Jones who was a house mate of Ms Towner’s for a period of time in the weeks after 18 February 2011 at 64 Seaview Road, Victor Harbor, observed injuries upon Ms Towner on a number of occasions. He observed bruising on Ms Towner sometime before she moved into Seaview Road and two black eyes in the weeks after she moved in sometime in February or March 2011.
From all of the circumstances surrounding the observations of friends and family, including the fact that those observations were made during the period of time that Ms Towner was seeing the accused and there is no suggestion she was seeing anyone else at that time, I am satisfied beyond reasonable doubt that it was the accused who caused the injuries to Ms Towner observed by others in the period between August 2010 and Easter 2011.
That is, I am satisfied that the accused caused the injuries to Ms Towner observed on her on 26 August 2010 and 18 February 2011. I am also satisfied that the accused caused the injuries to Ms Towner observed by her brother Mr Towner outside Woolworths and by Ms Jeisman when she travelled with Ms Hopkins to the Canterbury Road house when it was occupied by the accused and Ms Towner.
Furthermore, I draw the inference from the evidence of Mr Bennier about Ms Towner’s behaviour as she boarded his bus on 18 February 2011 and from the evidence of Mr Towner and Ms Jeisman, together with the police officers who arrested the accused on the evening of 18 February 2011, that at least after the incidents which left her with the injuries referred to by the witnesses on those respective dates she was frightened of the accused.
Earlier injuries to the accused
The evidence also satisfies me beyond reasonable doubt that on no occasion in 2010 or 2011 did any witness observe any injuries on the accused other than minor cuts and abrasions. This includes upon the accused’s arrest on Tuesday 26 April 2011 when he was examined by Dr Maine and his injuries were photographed by Brevet Sergeant Pearson.
As to one of the injuries observed on the accused on 26 April 2011, Mr Vadasz invited me to conclude that the effect of Dr James’ evidence left open the possibility that a mark seen on the accused’s neck that afternoon was a bite mark, which by implication leaves open the possibility that it was caused by Ms Towner in the course of a drunken brawl. Dr James very fairly did not rule out that possibility notwithstanding the fact that the mark possessed only two of five characteristics of a bite mark. However that mark may have been caused, I am satisfied for the reasons which follow that it was not inflicted in the course of any of the hypothetical scenarios put to Dr Langlois.
It also includes his prior arrest on 18 February 2011, when Senior Constable Brain observed no injuries to the accused’s body except a cut to his knuckle. From the evidence I conclude that there were at least two previous episodes of violence by the accused against Ms Towner from which, irrespective of how those episodes began, only Ms Towner came away with serious injuries, while the accused had little or no injury. Indeed, from the observations of Constable Arnold who was one of the police officers called to Canterbury Road on the night of 18 February 2011, I infer that it is likely that the accused sustained the cut to his right hand knuckle either at the time when he inflicted the injuries on Ms Towner or when he caused damage to the gyprock wall in the house observed by Constable Arnold.
Use of the relationship evidence
I have used these findings when considering and determining whether any of the scenarios put to the pathologist in cross-examination about the cause or causes and the mechanisms by which the injuries were sustained by Ms Towner are reasonably possible.
The evidence as to the state of the relationship in the months leading up to Easter 2011 is also relevant to explain how it was that the accused and Ms Towner ended up camped in an isolated roadside spot near Strathalbyn for the whole of the Easter weekend in 2011.
The evidence supports the inference that the behaviour of Ms Towner deteriorated after she became involved with the accused. In particular, others observed her to be drinking more, and on the morning of Easter Thursday prior to leaving for camping Ms Towner was behaving in an uncharacteristic manner consistent with possible drug use.
That there was a level of mutual attraction between the accused and Ms Towner is not in dispute. That attraction of course is no bar to any finding of guilt. However the text messages and the observations of others who saw them together in those months leading up to Easter 2011 demonstrate that the relationship was a volatile and unstable one, punctuated by episodes of violence which left Ms Towner on occasions with injuries which ranged from bruising and black eyes to far more serious injuries such as those observed in August 2010 and 18 February 2011.

The fact that the relationship was punctuated by arguments and episodes of verbal abuse from both sides does not detract from the conclusion that after all these episodes it was Ms Towner who was badly hurt. Unfortunately it is common enough that a relationship between two people can be loving and affectionate for some of the time and become dysfunctional and violent at other times, especially when alcohol is put into the mix. The consumption of alcohol was most certainly a substantial cause of the volatile dynamic between the accused and Ms Towner.
The text messages (D8) in particular illustrate the volatility in the relationship. It is evident that the communication in those texts was alternately loving and affectionate followed by doubt and insecurity and accusations from one to the other.
I do not attach significance to the fact that no one ever witnessed any actual violence between the accused and Ms Towner. Others usually saw them only on occasions when Ms Towner was going to the meatworks or to Strathalbyn to pick up or drop off the accused. The fact is that most of the relationship was conducted in private, first at Canterbury Road and later in a clandestine fashion camping out at various places. It is a fact that there are rarely witnesses to what happens between a man and a woman in a relationship in the privacy of their own dwelling. What is clear however is that the interaction between the accused and Ms Towner could quickly change from loving and affection to volatile and abusive.
Notwithstanding the provisions of s 34P of the Evidence Act the statement of Menzies J in Wilson v The Queen[5] is still apposite to explain the relevance and purpose for which evidence of the background relationship is being admitted:[6]
It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.
[5] (1970) 123 CLR 334.
[6] Wilson v The Queen (1970) 123 CLR 334 at 344.
I make it clear that the evidence of the background relationship between the accused and Ms Towner insofar as it involves evidence of the accused’s discreditable conduct has not been used by me to reason that because the accused might have inflicted serious injuries on Ms Towner in the past, he is therefore more likely to have done so on this occasion or that he is of bad character and just the type of man to commit murder.
The use which I have made of the background evidence insofar as it involves evidence of discreditable conduct is to explain the circumstances in which the clandestine relationship was conducted and to evaluate and determine whether any of the scenarios put to the pathologist in cross-examination to explain how the deceased may have died as a result of an accident or by misadventure are reasonably possible. This includes the scenario put to Dr Langlois involving Ms Towner jumping on the accused from behind and then falling over backwards (the koala tree hugging scenario).
Alcohol
The consumption of alcohol by the accused is relevant to a number of issues in the trial. It is relevant to whether the accused formed the requisite intention to either kill or cause grievous bodily harm. It is also relevant to the issue of whether the accused’s actions in inflicting the injuries which caused Ms Towner’s death were voluntary and deliberate. Defence counsel specifically raised the issue under s 269(1) of the Criminal Law Consolidation Act 1935 (SA), submitting that I am not able to be satisfied that the accused’s actions were voluntary and deliberate as there is a reasonable possibility on the evidence that the accused’s consciousness at the relevant time was impaired by self-induced intoxication to the point of criminal irresponsibility.
The evidence about the accused’s consumption of alcohol and the effect of alcohol upon him came from a variety of witnesses both lay and professional, namely police officers and medical personnel who observed him in a variety of situations in various states of alcohol intoxication.
From the whole of the evidence I infer that although the accused did drink alcohol to excess, frequently to the point where he became so intoxicated he ultimately fell asleep, he was nevertheless a seasoned alcoholic who was able to function and conduct conversations at times when his blood alcohol level must have been at a very high if not lethal level. I turn to that evidence now.
The first witness to speak about the behaviour of the accused when obviously under the influence of alcohol was Sean Towner. Mr Towner had a confrontation with the accused at the backyard of the property at 142 Canterbury Road on the evening of 18 February 2011 when he went back to that property with his sister Ms Towner to get her some clothing.
From his observations I infer that the accused, although obviously intoxicated, was able to drive himself to the property, converse with Mr Towner and give responsive answers to Mr Towner’s questions.
The police officers who went to the property and arrested him described his behaviour later in the evening at a time when his blood alcohol reading by alcotest was 0.218. From his own observations, Constable Brain assessed the intoxication level of the accused as moderate to high.
The accused made appropriate and polite responses to the questions which Constable Brain asked him. He was able to respond to being given his rights and indicated that he required a lawyer. When the charge of aggravated assault of Ms Towner was read to him he volunteered “I wasn’t even there that night”.
The arrest video on 18 February 2011 shows that after the arrest formalities were completed at the charge counter, the accused was able to walk without any difficulty and unaided to the charge counter.
What is important about this evidence is that at a time when witnesses were describing the accused as drunk, intoxicated, stumbling out of his car, slurring his speech, smelling of alcohol and with glazed eyes, the accused can be observed on the video walking without difficulty, giving responsive answers to the police and behaving in an appropriate manner. The video provides a realistic yardstick by which I can assess the oral evidence of the witnesses on the night of 18 February 2011.
There was evidence from a number of friends and associates of the accused including Mr Brumfield, Ms Stevens, Mr Hull and Mr Cutting from which I infer that the accused possessed a remarkable capacity to function purposefully at very high levels of alcohol intoxication.
The accused worked at the Strathalbyn meatworks from 11 June 2008 to 10 June 2010. The accused spent a substantial period of time in custody; between 26 August 2010 and 7 January 2011 and another three days from 18 February 2011 to 21 February 2011 and 5 April 2011 to 8 April 2011. So the principal observations made by Mr Brumfield and Ms Stevens were confined to the latter period when the accused had bailed himself to live at their house at 31 South Terrace, Strathalbyn from about 21 February 2011 until the Easter weekend. Nevertheless, some of the observations made by Mr Brumfield and Ms Stevens did cover an earlier period when the accused was still working.
Mr Brumfield like the accused was a heavy drinker, however there is no doubt in my mind that the accused drank far more than Mr Brumfield on most occasions.
Mr Brumfield said he never saw the deceased more than tipsy when she was drinking with the accused, however both he and the accused often became drunk on those occasions. He spoke of an occasion after 21 February 2011 when he and Ms Stevens were kept awake until the early hours of the morning after an argument started between the accused and the deceased after all of them had been drinking.
According to Mr Brumfield neither the accused nor the deceased ever appeared to be affected by alcohol when they returned from their regular camping trips away from the house at 31 South Terrace on the weekends. Although the accused sometimes turned up at the Strathalbyn meatworks too drunk to work, nevertheless he held that job for two years between 2008 and 2010 and worked from about 7.00 am each day until 3.00 pm, or much earlier depending on the workload for that day.
Mr Brumfield said that the accused actually drank more at the time when he was employed with the meatworks than afterwards because, according to Mr Brumfield, the accused did not have as much money to spend on alcohol.
Kelly Stevens, Mr Brumfield’s partner, was inclined to agree with most propositions put to her whether in examination in chief, cross-examination or re-examination. For this reason I have some reservations about Ms Stevens’ reliability. It was obvious that she was a most reluctant witness although I accept that she gave evidence which was basically honest.
During the time the accused lived with Ms Stevens she frequently observed him drunk and said that he drank on most days. Ms Stevens did however say that she did not ever see the accused drinking alone. He usually started drinking after the other boys came home from work anytime between about 11.00 am or 3.00 pm depending on the workload that day at the meatworks. She often saw the accused drink until he fell asleep and prior to that he would often be incomprehensible and knocking things over. Ms Stevens however never saw any injuries on the accused as a result of him stumbling around when drunk.
The accused was observed by some of the witnesses on Thursday of the Easter weekend before leaving to go on the camping trip. Mr Brumfield said although the accused had been drinking in his company earlier, he thought his state was not too bad. He did not recall the accused being “tipsy” that evening.
Colin King, Mr Brumfield’s brother, was also at 31 South Terrace, Strathalbyn having a few drinks with the accused and others on the Thursday of the Easter weekend. He said at one stage he left with the accused to go back to his own place to get more drinks. He described the accused’s condition when he last saw him that evening as not paralytic, talking normally, walking normally and not staggering.
Mr Hull who also lived at 31 South Terrace during the whole of the time that the accused lived there described the accused as a heavy drinker who could not stop. He usually saw the accused with others drinking on Thursday or Friday nights usually if it was a pay night.
A number of witnesses also saw and spoke with the accused on Tuesday 26 April 2011 prior to his arrest.
Mr Brumfield spoke with the accused when he turned up that morning between 11.00 am and 11.30 am with a bottle of port wine. He was drunk and asked Mr Brumfield for a cigarette. Mr Brumfield had a conversation with him and after asking where Ms Towner was, the accused told him they had had a car accident and the car was in a tree out near Michey’s and that Ms Towner had walked home a couple of days ago. The accused told Mr Brumfield that she was in a bit of a bad way. In response to Mr Brumfield’s questions about where his camping gear was the accused then gave him accurate directions to where the car was parked.
Ms Stevens also observed the accused on the front verandah of her house that day. She also had a conversation with him in which he told her that Ms Towner had had a bad car crash and that she walked home.
What is important about the evidence of both Ms Stevens and Mr Brumfield is that on 26 April 2011, although the accused was obviously intoxicated, both had a coherent conversation with the accused. The accused was able to respond to their questions.
Mr Hull’s observations on that day were in similar vein. At the trial, Mr Hull was shown a video of the accused later that day after he had been arrested. In his opinion the accused was drunker when he saw him earlier in the day than what he appeared to be in the video. Nevertheless when Mr Hull saw him the accused was still able to converse, ask for a cigarette, roll it, light it and smoke it.
A number of police and medical personnel also gave observations of the accused during 26 April 2011 at times when, according to Professor Irvine’s back calculation based on his alcohol readings later in the day, his blood alcohol level may have been as high as 0.38 and certainly over 0.3. Ms Little, an ambulance officer with the South Australian Ambulance Service, went to 31 South Terrace in response to a police request made at about 1.40 pm on Tuesday 26 April 2011. Ms Little had conversations with the accused who she described as confused, however as appears on the video, the accused was polite with Ms Little and answered her questions. That was a markedly different response to that which he gave to the police officers who arrested him.
Senior Constable Martlew, the arresting officer, spoke with the accused who answered him and responded to some questions initially before appearing to fall asleep. When the police officers searched him on the verandah at the house and requested him to identify a white powdery substance in his pocket, he identified it, correctly as it turned out, as salt. He also answered Ms Little’s questions about the drugs he had consumed and described a pain in his chest which according to Dr Maine, was consistent with symptoms experienced by alcoholics. The point I am making is that his exchanges with these officers although confused was coherent and they were able to understand him.
The blood alcohol level of the accused was measured at 5.45 pm, 9.59 pm and again sometime between 11.10 pm and 11.30 pm that evening. The blood alcohol reading at 5.45 pm was 0.260, at 9.59 pm was 0.140 and sometime between 11.10 pm and 11.30 pm the alcotest reading was 0.095. It is from those readings that the back calculation was performed enabling an inference to be drawn that the accused’s blood alcohol level at the time when he was conversing with the police was somewhere above 0.3 and possibly as high as 0.38.
One of the doctors at the Royal Adelaide Hospital Dr Maine spoke with the accused at 5.20 pm on that day. Dr Maine made observations of the accused which in my view are significant given his obvious level of intoxication (which at that stage was still about 0.260).
A.To be honest I didn't find him to be particularly intoxicated despite his blood alcohol level. He was tearful and emotional, and that is not uncommon in people who have a degree of intoxication. But I would suggest that with a blood alcohol that high most of us would probably be quite inebriated, so I would gather, given how well he presented, he was probably quite tolerant to alcohol at that stage and in accordance with history of long term volumes.
Dr Maine went on to describe the accused’s state as a little tearful which he considered to be an appropriate adult adjustment reaction to the obviously stressful and grieving situation which the accused was in on that date.
As a matter of completeness I refer also to the evidence of the police officer Detective Cresp about the accused’s behaviour much later that evening when he was taken from the Royal Adelaide Hospital to the watch house. Although the video of the charging procedure at the watch house on 26 April 2011 was admitted de bene esse, there is nothing in the video which in my view should result in its exclusion. Neither counsel sought to persuade me that it should not form part of the evidence in the trial. Indeed both counsel submitted that the accused’s actions and his conversation in that video throw some light on both the manner in which the accused said he sustained the injury to his throat on that date and provided an opportunity to observe the condition of the accused approximately nine hours after his arrest. For those reasons I admitted the evidence of that video.
Of course none of that evidence sheds any direct light on the accused’s mental state or intention at the time when he inflicted the injuries on Ms Towner which caused her death. The behaviour of the accused on these other occasions however does demonstrate in my view the validity of the opinions expressed by both Professor Irvine and Professor White about the capacity of a seasoned alcoholic to function well at high levels of alcohol consumption. On 26 April 2011 when the accused’s blood alcohol was at a dangerous if not lethal level, the accused nevertheless demonstrated a capacity throughout that day to respond to questions and to converse with others. There is no doubt he was intoxicated, however he was aware in my view that he was in serious trouble. He was appropriately upset as Dr Maine observed. He reported that he had been feeling suicidal. When Detective Schiek arrived at the house earlier in the day and told him again that he had been arrested on the charge of murder and proceeded to give him his arrest rights, the accused interjected with the significant question “did you find the girl?”.
The whole of the accused’s presentation on 26 April 2011 provides a remarkable insight as to the capacity of the accused to function consciously and at least to an extent purposefully at a time when his blood alcohol concentration was at a known lethal level.
In reaching this conclusion I make it clear that I do not consider that this evidence on 26 April 2011 provides any reliable indicator of the accused’s actual level of intoxication at the earlier time sometime over the Easter weekend when he inflicted the injuries which caused Ms Towner’s death.
It is obvious from his presentation on 26 April 2011 that the accused was in a distressed state even though highly intoxicated. This was a uniquely unusual event even for the accused. He had just been arrested for murder, he plainly knew Ms Towner was dead, he was suicidal and at some earlier stage which cannot be ascertained he had taken both sleeping tablets and excessive quantities of alcohol.
The evidence about the accused’s and the deceased’s consumption of alcohol over the Easter weekend when Ms Towner met her death is entirely circumstantial.
At the scene, police retrieved two empty wine bladders from the deceased’s vehicle. One was a two litre and one a four litre bladder. There were five empty bourbon and cola cans found in the car. In addition there was another paper cardboard two litre Golden Oak port carton found about 800 metres east of the vehicle on Lowana Road. There is no evidence to enable any conclusion to be drawn one way or another about the additional carton or whether it had any relationship at all to the crime scene. There is no evidence as to the total amount of alcohol which was taken on the trip or consumed by either the accused or the deceased, however the deceased’s blood alcohol level taken post-mortem from the liver was 0.143 and from the vitreous humour was 0.149. From these readings Professor White estimated a blood alcohol level at time of death of around 0.134.

There is no evidence as to how much alcohol Ms Towner needed to have consumed to have reached that level because the rate at which she was drinking, the time over which she consumed it and the amount of food and other circumstances relevant to that issue are simply not known. To some extent the same is true of the accused’s consumption.
I infer from the whole of the evidence that once Ms Towner’s vehicle was parked in the position under the trees where it was seen on Tuesday 26 April 2011 it remained in that position for the rest of the weekend. I draw that inference from the totality of the observations of the independent witnesses, namely the local farmers who either drove past that vehicle or observed the vehicle from a distance over the weekend. Therefore I find that the vehicle was not moved from approximately 8.00 am on Friday 22 April 2011 until lunch time on Tuesday 26 April 2011 when Mr Brumfield and his friends went to the scene and found the deceased.
I find that neither the accused nor Ms Towner returned to Strathalbyn to replenish stocks after leaving Strathalbyn on the night of Thursday 21 April 2011. Even if Mr Kerslake’s evidence as to the sighting of the accused at the Strathalbyn IGA on Good Friday is accurate, which I doubt, the accused could not have replenished alcohol from any alcohol store on Good Friday because they were all closed for the Good Friday holiday.
It follows that between Thursday 21 April 2011 and Sunday morning of 24 April at about 11.40 am when the accused made a phone call to Mr Brumfield, neither the accused nor Ms Towner had replenished alcohol stocks.
I also find that the man who was seen by Mr Clarke near the car in that same position at about 6.00 pm on Friday 22 April 2011 was the accused. I also find that the man Mr McAnaney observed standing at the rear of the vehicle on Saturday 23 April at about 8.30 am was the accused.
I am satisfied that Ms Towner was still alive on the Saturday morning 23 April at the time when Mr McAnaney observed the accused at the rear of the vehicle. Mr McAnaney testified that he saw the front passenger door being pulled shut while the accused was standing at the boot of the car. I do not consider there is any other explanation possible for the shutting of that door by any other mechanism than it having been closed by whoever was sitting in the car at the time. I find that person was Ms Towner.
Discussion
I was assisted in my evaluation of the evidence by Professors Irvine and White, both experts in the field of pharmacology and in Professor White’s case psychology as well.
I also had the benefit of Mr Balfour’s evidence in the earlier proceedings. Mr Balfour is a forensic psychologist who interviewed the accused on 27 January 2012, carried out some formal psychological testing and provided a report about the general level of intelligence of the accused. Each of the three experts gave evidence of a general nature about the effect of alcohol on a person who has a dependency on alcohol.
I consider there is some real difficulty in accepting the opinions of any of the experts as anything more than a general guide as to the behaviour of people generally at different blood alcohol levels. This is because there are a wide range of variables contained within some of the assumptions which the experts were asked to make.
For example the assumption that Professor White was asked to make that Ms Towner was a non-alcoholic dependent female that is an average drinker is not in my view accurate.
On the contrary the evidence supports the inference that although Ms Towner did not drink nearly as much as the accused, after she started a relationship with the accused she drank more heavily. In the period leading up to Easter 2011 she was observed by her family and friends often to be smelling of alcohol and leaving empty alcohol bottles lying about the house. She was regularly observed drinking. On several occasions she was observed to be very drunk particularly after visiting the accused in prison in November 2010.
A number of figures were put to each of the witnesses based on calculations of different rates of elimination. These rates are determined by a range of variable factors one of which includes the tolerance of the particular person to alcohol.
It is, as I have previously noted, not possible to conclude how much alcohol the accused drank, at what rate it was consumed or even when he drank it. In addition to that there was obviously an undetermined but finite quantity of alcohol available to the accused and Ms Towner over the Easter weekend. The only evidence about the accused’s level of intoxication at any time proximate to when the death of Ms Towner must have occurred is in the phone call made by the accused to Mr Brumfield at 11.40 am on Sunday 24 April 2011.
Nevertheless the evidence of both Professors White and Irvine is significant. It supports the evidence of the lay witnesses and the medical and police personnel who observed the accused and interacted with him on occasions when he was known to be highly intoxicated. Professor Irvine was asked to comment about the accused’s mental state at a blood alcohol level of 0.3. He said:
A.… But, I should say, in talking about getting to these high levels, when we're talking about people who are seasoned drinkers in that case they may well have a better grasp of the situation than another person who is not a heavy drinker. So, .3 for a normal drinking person, the person would have a great deal of difficulty in understanding what was going on around them and responding appropriately. If they were an alcoholic they may be able to function much better at those very, very high levels of alcohol.
Professor Irvine did not accept the proposition that because the accused was an alcoholic his blood alcohol level at the time of Ms Towner’s death was necessarily higher than hers. Asked about that scenario he said:
Q.As a general norm, a person with that history of drinking like Gardiner is likely to consume alcohol at a faster rate than their partner who doesn't have a history of drinking.
A.Probably, probably.
Q.So that if the partner had a blood alcohol content of .18 I think we settled on, you would expect Mr Gardiner's blood alcohol content to be higher.
A.Not necessarily because we already assumed that he had a higher metabolism rate so over a long period of time that plays a role in setting the maximum blood alcohol level he can get to.
Professor White was asked about the accused’s mental state at levels as high as 0.38. He said:
Q.Moving on to Mr Gardiner who may have been as high as 38% [sic] at the time he was spoken to by police, does the capacity to reach that high level of blood alcohol provide any insight into his drinking habits.
A.For a person to be interacting with other people at that blood alcohol concentration it indicates that the person has a very high degree of tolerance. Most people would be comatose at that level and there is a risk of death occurring so, if a person was interacting with others, they would have had to have had a really marked degree of tolerance.
Q.Can you just explain 'tolerance' please.
A.Yes; when alcohol affects the brain - and this occurs over a long period of time - the brain adapts in a way that reduces the effects of alcohol, so a person with experience of alcohol doesn't react as strongly to a given amount as a person without that experience. And essentially, the more you drink the more tolerant you become, so your brain is not as affected by a given concentration of alcohol to the same degree. So alcohol still produces the same effects but they only occur at higher concentrations in a person who is tolerant.
Q.So they're physiological changes are they.
A.Yes.
Q.So a heavy drinker will show the same signs as an average drinker but tend to show them at a higher level of blood alcohol.
A.Yes.
Professor White further said:
Q.Their awareness of what they were doing, would that be affected.
A.They have an awareness in the sense that they would generally be able to describe to you what was happening around them but if you like their level of understanding or comprehension would be lower than you would expect so a person may not understand fully the implications, would not have thought through the implications of the things that are happening or things that they are doing. So, they have a basic level of understanding but not the normal level that we would expect.
Q.Are you saying this: they have a basic understanding of what they are doing but don't appreciate the consequences of their actions.
A.That's right.
Q.You said they are not functioning at a normal intellectual level, that's normal for that particular person.
A.Yes, compared to what they would be in a sober state, they wouldn't be able to understand things in the same way when they are intoxicated.
Q.So a person who's operating at a low/average level of intellectual function, their level of intellectual function would drop down even lower.
A.Yes.
Professor White was then asked to express an opinion based on the following scenario:
Q.I would like to present a scenario that that, firstly, alcohol is available; secondly, that there are two people in an isolated location; thirdly, that they are both drinking alcohol, one of them is a non-alcohol dependent female, an average drinker as you stated, the other is alcohol dependent. I'd like you to assume that at the time the non-alcohol dependent person stopped drinking she had a blood alcohol content of .224. Would you expect the alcoholic to have a similar blood alcohol level or higher.
A.Obviously that depends on the circumstances of the time which are not known but I can say that in general an alcohol dependent person, where there are no other constraints, would tend to drink at a faster rate than an non-alcohol dependent person so they will generally get to a high blood alcohol concentration for that reason and also because of their tolerance. One of the factors that constrains a non-alcohol dependent person is that eventually the alcohol causes sedation and that in many of us will slow down the rate of drinking, simply become too sedated and you no longer drink as much. For the alcohol dependent person that doesn't occur until a higher blood alcohol concentration so they can get to a level that the non-dependent person can't without that sedation occurring. So in most circumstances it's likely that the alcohol dependent person will get to a higher blood alcohol concentration but obviously that depends on the exact circumstances.
A number of the assumptions which Professor White was asked to make have not been proved and there is no evidence one way or another whether they are correct. For example, Professor White was asked to assume that the accused started drinking when he got up in the morning. There is no evidence to suggest that the accused started drinking each day when he got up in the morning. The only evidence about the accused’s drinking patterns is that he started drinking when his mates came home from work which could be anywhere between 11.00 am and 3.00 pm.
I have already explained why the assumption that Ms Towner was a “non-alcoholic dependent” female is not necessarily correct either. Nor is the assumption that her blood alcohol level was 0.224 when she stopped drinking established. It is speculative.
While it may be readily accepted that the accused was an alcoholic, the evidence does not go so far as to support the inference contained in some of the assumptions Professor White was asked to make that the accused drank himself into a comatose state every day of the week. The fact is that during a significant period of the latter half of 2010 the accused was in custody and in the early months of 2011 when not in custody he was unemployed. Mr Brumfield at least did not accept that the accused was drinking more during that period because he was unemployed.
Each of the experts expressed the opinion that a person’s level of intoxication will have an effect on their mobility, coordination, reflexes and judgment. That opinion might readily be accepted. Indeed the higher the level of alcohol intoxication, the more prone that person is to making poor judgments and becoming impulsive. Mr Balfour, the psychologist, was asked:
Q.In an advanced state of intoxication, is it possible for persons to be physically mobile and act physically without their brain being aware of what’s going on.
A.You mean automatism kind of state?
Q.Yes.
A.It is very difficult to answer that one because a person, they have an awareness of the actions at the time of intoxication, but later suffer from post-intoxication amnesia and have no recall of what happened. That doesn’t exclude that they were aware of their actions at the time.
I find it significant that Mr Balfour who was the only one of the experts to examine the accused albeit many months after these events, said he did not observe any evidence of profound memory impairment on the accused. He found that the accused’s memory was adequate for the purpose of carrying out his assessment and for all of the communications during the assessment. There is nothing in the evidence of either Professor Irvine or Professor White which suggests that that opinion should not be accepted.
Of course that is not to say that the accused did not suffer some memory impairment as a consequence of his ingestion of alcohol over the weekend. However, the accused was able to give directions to Mr Brumfield on Tuesday 26 April 2011 to enable Mr Brumfield to find where the vehicle was parked. He spoke with medical staff later at the hospital that day and told them what alcohol he had consumed and what pills he had taken even though he did not know how many.
In the same context of suggested memory loss I find the accused’s question to Detective Schiek during the afternoon “did you find the girl?” to be significant. He certainly did not suffer from a complete memory loss about the events over the weekend as he later suggested to others but even had he, as Barwick CJ observed in The Queen v O’Connor,[7] the fact that a man does not later remember what he did when heavily intoxicated does not necessarily indicate that his will did not go with what he did do or that he did not have the necessary intention.
[7] (1980) 146 CLR 64.
Each of the three experts were asked general questions about the effects on a person of ingesting both alcohol, cannabis and benzodiazepine. Once again that evidence might readily be accepted, however it is not of any particular relevance in evaluating the accused’s mental state at the relevant time, which is when he inflicted the injuries on Ms Towner. That is because there is no evidence about the accused’s consumption of cannabis and or any other drug before Ms Towner’s death. Nor is there any evidence from which any inference can be drawn as to the effect of that cannabis and or other drug on the accused. It is pure speculation. The fact that he had tetrahydrocannabinol (THC) in his blood without more indicates only that in the few days prior to 26 April 2011 he had consumed cannabis. Although there was nordiazepam found in the accused’s blood consistent with having consumed benzodiazepines within the previous two to three days, for the same reasons, I find there is no evidence to suggest what the actual consumption of benzodiazepines and or any other drug by the accused was at the relevant time. There is simply no evidence which supports any inference that the accused had even consumed those benzodiazepines before Ms Towner died.
In short there is no evidence to establish what the level of intoxication was at the time when the accused inflicted the injuries on Ms Towner. The evidence is sufficient to establish, and I find beyond reasonable doubt, that both the accused and Ms Towner had been drinking prior to her death. The deceased had a blood alcohol level of 0.143 in fluid taken from her stomach area post-mortem, and a vitreous humour reading of 0.149 also taken post mortem. Taking into account the evidence of Professor White estimating a reading of 0.134 at time of death, and his estimation that her blood alcohol would have ranged between 0.154 and 0.174 in the two hours before her death, I infer that the blood alcohol reading of Ms Towner at the time the injuries were inflicted was unlikely to have been much higher than 0.174.
Taking into account the evidence of both Professor Irvine and Professor White I do not accept that the blood alcohol reading of the accused at the time when he inflicted the injuries upon Ms Towner which led to her death, was necessarily higher than Ms Towner’s blood alcohol level. It may have been, however by how much is purely a matter of speculation.
Mr Vadasz submitted that the evidence raises at least as a reasonable possibility an inference that there was a sufficient quantity of alcohol available to the accused over that weekend to have drunk sufficient alcohol on each of the Thursday, Friday and Saturday evenings prior to Ms Towner’s death to have reached a blood alcohol level of around 0.3. That may or may not be so, however it does not assist in the evaluation of the level of intoxication of the accused at the time when he inflicted the injuries upon Ms Towner which led to her death.
The only evidence as to the accused’s state of intoxication at any time proximate to when Ms Towner must have died is in the evidence of Mr Brumfield and Ms Stevens about their conversation with him on Sunday morning 24 April 2011 at about 11.40 am. In that conversation even though both Mr Brumfield and Ms Stevens were aware that the accused was drunk and slurring his words, he was able to communicate adequately with them. He told them that Ms Towner’s lips were blue. After Ms Stevens told the accused to check for a pulse on her neck or her wrist there was a pause in the conversation before he responded that he could not find one. It is significant that the accused was able to describe Ms Towner’s state with some accuracy. It is also significant that later when neither Ms Stevens nor Mr Brumfield responded to his further communication he sent another text message saying “I me [sic] not joking please call back”. Plainly at that stage the accused was aware of the seriousness of the situation, able to respond meaningfully and purposefully to suggestions made to him and report back.
However even if the accused was grossly intoxicated at the time when he inflicted the injuries upon Ms Towner the whole of the evidence establishes that the accused even when intoxicated and with a blood alcohol level as high as 0.3 to 0.38 has demonstrated an ability to perform conscious, voluntary and at least to some extent purposeful actions.
The video of the accused’s interactions with police and other medical personnel on the afternoon of 26 April 2011 when he was undoubtedly grossly intoxicated, is replete with examples where the accused made conscious, voluntary choices to speak to certain people and not to speak with others.
On 18 February 2011 when he was at a known blood alcohol level of 0.218 and on the afternoon of 26 April 2011 when he was at the hospital with a known blood alcohol level of 0.26, the accused was demonstrating coordinated actions and was able to engage in responsive conversation with others.
For these reasons I do not accept that there is any reasonable possibility that the accused was in such a catatonic state due to alcohol and/or drug consumption at the time when he inflicted the injuries on Ms Towner that he was not performing voluntary and deliberate acts. To put that in terms of s 268 of the Criminal Law Consolidation Act 1935 (SA), I am satisfied beyond reasonable doubt that at the time of inflicting injuries on Ms Towner which caused her death the accused’s consciousness was not impaired by alcohol or drug consumption to the point of criminal irresponsibility.
Intention

I turn now to the issue whether the accused in fact did form the intention to either kill or at least cause grievous bodily harm to Ms Towner.
Mr Vadasz invited me to conclude that at the time Ms Towner died there was, at most, some sort of altercation during which Ms Towner sustained the injuries which led to her death. In making that submission counsel pointed to the injuries on the accused including the scratches on his arm, the back of his neck and another injury on his neck, which Mr Vadasz submitted had not been excluded as a bite mark.
The defence argument was that because the evidence demonstrates Ms Towner was able to some extent get up and walk after the infliction of the injuries upon her, this is not a case where the victim is beaten senseless leading to the inescapable conclusion that those injuries must have been inflicted by a person who had the specific intention to either kill or cause grievous bodily harm. Counsel submitted that it is not possible to rule out at least as a reasonable possibility that there was an argument between the accused and Ms Towner, possibly followed by a flurry of fighting then making up, perhaps repeating the same sequence then retiring to bed only for the accused to later wake up and find that Ms Towner had died.
It can be accepted that Ms Towner’s state of intoxication might have dulled her perception of the seriousness of the injuries. I can also accept that she was able to walk to the car after the injuries were inflicted upon her. Indeed it is likely that none of the injuries she sustained were inflicted upon her inside of the vehicle.
However after my examination of all of the evidence including the extent and nature of the injuries on Ms Towner’s body and the behaviour of the accused before, during and after the Easter 2011 weekend, I have reached the conclusion that it is not reasonably possible that the injuries observed on Ms Towner’s body were inflicted in the course of a drunken argument or fight without the accused possessing the necessary intention.
There may well have been an argument. Ms Towner may well have started it, however I do not consider it necessary to determine who may have started the altercation which led to Ms Towner’s death.
The nature and extent of the deceased’s injuries are such as to exclude any reasonable possibility that they were inflicted in the course of the accused defending himself. At the time of her death Ms Towner weighed 54 kilograms. The accused weighed 90 kilograms. The accused sustained no serious injury. All the doctor observed on the accused on 26 April 2011 was minor scratches. For the reasons I have earlier explained I do not accept there is any reasonable possibility that the mark observed on the accused’s neck was a bite mark, notwithstanding Dr James’ rational concession on the basis of the material she then had. In any event I reject that possibility. It is preposterous, given Ms Towner’s behaviour on earlier occasions, to suggest that the most severe injuries observed on her torso were caused by the scenario put to Dr Langlois which he referred to as “the koala hugging the tree” scenario. The passage from Dr Langlois’ evidence explaining that scenario illustrates what a complex, choreographed scenario would have been required to produce those injuries from a fall in the manner suggested. In my view, there is not a shred of evidence to support that hypothetical scenario.
I remind myself at this point that even though the accused did not give evidence it remains for the prosecution to prove each and every element of the crime of murder beyond reasonable doubt.
The accused does not have to prove anything. Nor is any inference adverse to him to be drawn from the fact that he chose to exercise the right to silence. Nor can the absence of evidence from the accused be used as a makeweight for any deficiency in the prosecution case.
In my evaluation of the evidence I cannot reach a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable explanation other than the guilt of the accused.
I remind myself again that it is not for the accused to establish that inference other than guilt should reasonably be drawn from the evidence or to prove particular facts that would lead to support such an inference.
However as the High Court observed in Barca v The Queen[8] in evaluating the evidence I am not required to engage in groundless speculation, nor am I required to find that there is a reasonable possibility of innocence based on mere conjecture.
[8] (1975) 133 CLR 82.
Having examined carefully the evidence of Ms Towner’s extensive injuries in the context of the whole of the evidence I find that each and every one of the scenarios put to the pathologist amount to nothing more than hypothetical speculation which gains no support from the evidence. The koala hugging the tree example in particular is mere conjecture.
However that is not all. I accept that the lies told to Mr Brumfield and Ms Stevens on Sunday 24 April 2011 about the manner in which Ms Towner met her injuries and then walked home, do not necessarily indicate a consciousness of guilt of the crime of murder. On the contrary, those lies are equally consistent with the accused not having intended to cause death or serious bodily harm, but waking up the next morning and realising that Ms Towner was either dead, dying or very seriously injured and panicking out of fear that he would be blamed for her death if not her murder.
The lie told to Mr Brumfield and Ms Stevens about calling an ambulance but it not having arrived is, however, a telling indicator about the accused’s state of mind at the relevant time. In my view, that lie demonstrates that the accused well knew that the natural thing, the appropriate thing, for someone in the circumstances in which he found himself on that Sunday morning having found his partner either dead, dying or seriously injured, would be to summons immediately some help, medical or otherwise. Apart from the call to Mr Brumfield and Ms Stevens, the accused did nothing to alert anybody, be it the authorities or anyone else, or to obtain any help for Ms Towner between 24 April and 26 April 2011 when he was arrested
Help was close at hand. There were farmers and farmhouses nearby. The campsite was less than six kilometres from Strathalbyn. The accused eventually must have walked that distance because he turned up at Strathalbyn on 26 April 2011 on foot.
There was no call to the ambulance at any time by the accused over that weekend. There is no evidence that the accused did anything to proffer any assistance to Ms Towner other than make that call to his friends on Sunday morning. I find it inexplicable if not extraordinary that the accused, if innocent, did nothing for two days after plainly appreciating the gravity of Ms Towner’s plight.
The accused’s failure over the two days to do anything to assist Ms Towner and his failure to alert any authorities whether medical or police of Ms Towner’s plight is part of the circumstantial evidence which I have taken into account when determining whether there is any reasonable possibility that the accused is innocent of murder.
Summary of principal findings
At the commencement of the trial the accused pleaded not guilty to murder but guilty to manslaughter. I infer from that plea that the accused admits responsibility for the first element of the crime of murder namely that he inflicted the injuries which caused Ms Towner’s death.
Even without that admission the circumstantial evidence satisfies me beyond reasonable doubt that it was the accused who was the author of the injuries which caused the death of Ms Towner.
I find beyond reasonable doubt:
·The accused was the person who inflicted the injuries on Ms Towner on 26 August 2010, 18 February 2011 and on the other occasions referred to by the witnesses Sean Towner, Jesse Jeisman, Gail Hopkins and Sean Jones.
·The accused held down regular employment at Strath Pastoral Pty Ltd from 11 June 2008 to 10 June 2010.
·The accused was taken into custody following the 26 August 2010 incident. On that occasion he spent 134 days in custody. The accused was arrested on 18 February 2011 for assault.
·The accused was living separately from the deceased from 18 February 2011 to Thursday 21 April 2011 as his bail conditions provided. He breached that condition on some weekends and over the Easter weekend 2011.
·It was a condition of the bail granted to the accused after the complaint of 18 February 2011 that he not contact the deceased. The accused breached this bail condition at Unit 2, 3 Elliot Avenue, Hayborough on 2 April 2011. He was arrested for this on 5 April 2011 and spent three days in custody before again being granted bail by a magistrate on 8 April 2011.
·The accused and Ms Towner left to go camping on Thursday 21 April 2011.
·Ms Towner was still alive on Saturday morning 23 April 2011 at around 8.30 am when Mr McAnaney made his observations. I find that the accused and Ms Towner were alone camping near Strathalbyn for a minimum of two nights, namely Thursday and Friday night, before Ms Towner met her death.
·Neither the accused nor Ms Towner returned to Strathalbyn to replenish alcohol stocks before Ms Towner died.
·Ms Towner died sometime after 8.30 am on Saturday 23 April 2011 and before 11.40 am on Sunday 24 April 2011.
·The accused was at the relevant time alcohol dependent and in the months leading up to the death of Ms Towner he regularly drank to excess to the point where he sometimes passed out.
·The accused even when intoxicated and with a blood alcohol level as high as 0.3 has demonstrated an ability to perform conscious, voluntary and purposeful actions.
·There is no reasonable possibility that at the time when the accused inflicted the injuries which caused Ms Towner’s death that he was in such a catatonic state due to alcohol and or drug consumption that his consciousness was impaired by self-induced intoxication to the point of criminal irresponsibility.
·The accused spoke to Mr Brumfield and Ms Stevens at 11.40 am on Sunday 24 April 2011. He told them that the lips of the deceased were blue and that she had no pulse. He told them he had called an ambulance and that it had not arrived.
·No call to the ambulance was ever made by the accused.
·The deceased sustained multiple injuries referred to in P27 described by Dr Langlois.
·The injuries which caused the death of Ms Towner were caused by applications of force ranging from mild to moderate to severe.
·The injuries were not caused by a single application of force but by multiple applications of force.
Conclusion
Ms Towner suffered multiple injuries to her head, neck, torso, front and back. Leaving aside the minor cuts, abrasions and bruising on the legs, a number of those injuries must have been caused by moderate to severe applications of force including in particular the rib fractures and the injury to the liver and colon. As I have noted earlier the injuries to the head involved injuries on three different planes. Ms Towner’s death was caused by a combination of the severe injuries which included the head injuries, the rib fractures and the lacerated liver. The most significant was the lacerated liver and there was evidence that the deceased had lost at least one litre of blood. In the end I consider that an application of plain common sense to the evidence requires rejection of the hypothetical scenarios put to Dr Langlois including in particular the koala hugging the tree scenario as a reasonable possibility explaining the bulk of the injuries seen on Ms Towner’s torso. As far as I have grasped it, the law in this State has not yet evolved to the point where trial judges sitting alone, are no longer permitted to apply common sense to the evaluation of the evidence before them. In my view, having assessed the whole of the evidence, the injuries seen on Ms Towner are inconsistent with anything other than a severe beating.
I have considered whether the evidence raises a doubt in my mind whether the inference that the accused intended to cause grievous bodily harm should be drawn. Having considered the whole of the evidence it is my view, contrary to the submissions of Mr Vadasz, that I can draw that inference. It is my view that the natural inference arising from the nature and extent of the injuries observed on Ms Towner is that whoever inflicted them intended at the very least to cause Ms Towner grievous bodily harm. That inference arises from my finding beyond reasonable doubt that the injuries were caused by multiple applications of force including moderate to severe force.
Even though the accused was likely to have been intoxicated at the time when he inflicted those injuries I am satisfied that he intended at the very least to cause her really serious bodily harm. There are far too many injuries on too many vulnerable parts of the body for there to be any reasonable possibility that even a man in a drunken state as the accused likely was, did not appreciate that his actions would cause really serious bodily harm to Ms Towner. A drunken intention to cause grievous bodily harm is nevertheless an intention. There is no reasonable possibility that in subjecting Ms Towner to what I find to have been a severe beating he did not intend to cause her grievous bodily harm. He may well have very quickly regretted his actions however that is beside the point.
I find beyond reasonable doubt that at the time when he inflicted the injuries which caused Ms Towner’s death the accused was not acting either in self-defence or in the course of a drunken fight when he did not possess an intention at the very least to inflict grievous bodily harm.
I find the accused guilty of murder.