R v Gardiner - [2012] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GARDINER
Criminal Trial by Judge Alone
[2012] SASC 160
Judgment of The Honourable Justice Anderson
17 September 2012
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 - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - REBUTTAL OF POSSIBLE DEFENCE - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - EXPLANATORY MEMORANDA, PARLIAMENTARY DEBATES AND MATERIALS ETC
Criminal trial by judge alone – accused charged with murder – accused pleaded not guilty – victim partner of the accused – circumstantial evidence – whether evidence of discreditable conduct admissible – whether probative value of the evidence of discreditable conduct substantially outweighs the prejudice to the accused – meaning of "substantially outweighs" - defence hypothesis of accident –question of intoxication – whether application of s 268 Criminal Law Consolidation Act 1935 (SA) - whether intention to cause death or grievous bodily harm.
Held: The accused is guilty of murder – no reasonable explanation for totality of the evidence other than guilt of accused.
Criminal Law Consolidation Act 1935 (SA) s 268 and s 269; Evidence Act 1929 (SA) s 34O, s 34P and s 34R; Evidence Act 1995 No 25 (NSW) s 101 and s 135, referred to.
Wilson v The Queen (1970-1971) 123 CLR 334; R v Clark (2001) 123 A Crim R 506; R v Ellis (2003) 58 NSWLR 700; R v Childs (2007) 98 SASR 111, discussed.
The Queen v Hissey (1973) 6 SASR 280; R v Matthews (1991) 58 SASR 19; K-Generation Pty Ltd & Anor v Liquor Licensing Court (2008-2009) 237 CLR 501; R v Nieterink (1999) 76 SASR 56; Pfennig v The Queen (1994-1995) 182 CLR 461; HML v The Queen (2008) 235 CLR 334; Harris v The Queen (1990) 55 SASR 321; R v Gavare [2012] SASCFC 52; R v Loader (2004) 89 SASR 204; The Queen v Crabbe (1985) 156 CLR 464; R v Wildy [2011] SASCFC 131; R v O’Connor (1980) 146 CLR 64; R v Tucker (1984) 36 SASR 135; The Queen v Perks (1986) 41 SASR 335, considered.

R v GARDINER
[2012] SASC 160
Criminal
INDEX
1.    Introduction
2.    The relationship between the accused and the deceased
3.    Evidence of discreditable conduct
3.1          The legislation
3.2          Submissions for admissibility
3.3          The common law position
3.4          Intention of Parliament
3.5          Comparative legislation
3.6          The actual evidence of discreditable conduct called by the prosecution

4.    Other background evidence
5.    Movements of the accused and the deceased on the Easter weekend
6.    The crime scene
6.1          The discovery of the body of the deceased
6.2          The injuries sustained by the deceased
6.3          DNA evidence
6.4          Clothing of the accused and the deceased
6.5          Damage to the clothing
6.6          Cause of death

7.    Conduct of the accused
8.    Agreed facts
9.    Prosecution case
10.    Defence hypothesis
11.    Intoxication
12.    Findings beyond reasonable doubt
12.1.        Pre-Easter 2011
12.2         Easter weekend 2011
12.3.        Injuries sustained

13.    Consideration
14.    Conclusions
15.    Alternative to murder
15.1         Reckless murder
15.2         Manslaughter by unlawful and dangerous act
15.3         Criminal negligence

16. Verdict

ANDERSON J.
1. Introduction
Jason Lee Gardiner is charged with murder. The particulars alleged are that between 20 April 2011 and 27 April 2011 he murdered Katherine Dulcie Towner at Strathalbyn. That period includes the Easter weekend.
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 from all the evidence which I accept, other than that the accused is guilty of the crime of murder. If there is any reasonable explanation other than that the accused committed the murder of Katherine Towner, then the accused must be acquitted of that charge. I will detail the basis of the circumstantial case later. I remind myself that when dealing with these matters some items of circumstantial evidence may carry significant weight by themselves, but others by themselves may be quite weak by comparison. However, I have to consider the weight of the circumstantial case based on the combined strength of all the facts which have been proved and that are probative of the final inference contended for by the prosecution, namely, the guilt of the accused.
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. The matters which the prosecution must prove beyond reasonable doubt are:
1. That the act or acts of the accused caused the death of Katherine Towner;
2.That the act or acts of the accused which caused the death of Katherine Towner were conscious and voluntary, 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;
3.The act or acts of the accused which caused the death were carried out with the intention of either killing Katherine Towner or at the very least causing 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;
4.Finally that the killing was without any lawful justification or excuse such as lawful self-defence.
Ms McDonald, who appeared for the Director of Public Prosecutions, submitted that in the event that I could not find beyond reasonable doubt an intention by the accused of either killing Katherine Towner or at the very least causing grievous bodily harm I could nevertheless proceed to convict the accused for murder on the basis that he was reckless.
Even where a person does not intend to cause death or grievous bodily harm, it is enough to satisfy the element of intention if, at the time of committing the act which causes death, that person foresees that that act will probably cause death or grievous bodily harm. That is so even though that person might not wish that death or grievous bodily harm should occur. It is not enough that the person foresees that death or grievous bodily harm will possibly result from his act. There must be a realisation that death or grievous bodily harm will probably occur and a determination to proceed with the act notwithstanding.
Ms McDonald also submitted that in the event I was not satisfied beyond reasonable doubt of the accused’s intention to the level required for murder and if I was not satisfied that there was a foresight by the accused that his act or acts would probably cause death or grievous bodily harm I could then convict the accused of manslaughter. She submitted that there were three possible routes to a conviction of manslaughter. First by an unlawful and dangerous act, second by the statutory provisions of s 268 of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) because of the degree of intoxication of the accused and finally by criminal negligence. I will deal with these aspects later in these reasons.
I now remind myself of some of the normal matters upon which a jury would be directed.
When I use the terms “accept”, “satisfied” or “proved” in this judgment I mean accept, satisfied or proved beyond reasonable doubt.
I must at all times bear in mind that the accused does not have to prove he is innocent. He is presumed innocent. The accused is not to be convicted unless and until I am satisfied beyond reasonable doubt of his guilt on this charge of murder. This means that each element of the offence of murder, as I have set out, must be proved beyond reasonable doubt.
I remind myself that an accused person on his trial is legally entitled to give evidence in his defence or to refrain from giving evidence. I direct myself not to speculate as to reasons why the accused did not give evidence because that is his legal right. I cannot draw any inference against the accused from the fact that he did not give evidence. The accused’s silence in court is not evidence against him. It does not constitute an admission by the accused. It may not be used to fill in gaps in the evidence tendered by the prosecution and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
I heard opinion evidence from some experts. In particular Dr Langlois, the pathologist, Ms Rositano, senior toxicology scientist, Ms Mitchell, DNA scientist, Dr Donnelly relating to the evidence regarding the clothing of the deceased and the accused, Dr Irvine, a pharmacologist, and Mr Balfour, a psychologist. I remind myself that I remain the sole judge of the facts and that I am not bound to accept the opinion evidence. I can accept or reject Dr Langlois or any other expert opinion and give such weight to the opinion evidence as I decide. As it turns out, I have found each of the experts to be properly qualified to be able to offer the opinions that they did. I have found their evidence helpful.
2. The relationship between the accused and the deceased
I will deal in this section with the evidence of the relationship generally between the accused and the deceased. I will deal more specifically with it when I come to consider the evidence which was led as to the discreditable conduct of the accused in his violence towards the deceased.
The relationship had existed for approximately 18 months prior to the deceased’s death. Prior to that time the evidence is that the deceased did not socialise much outside her family and did not drink alcohol to any extent. She apparently in earlier times had a drug problem but there was no detailed evidence to assist me on this. She lived in a close and harmonious relationship with her family which was her mother, her half-brother and his partner and also her son who was aged 11 at the time of her death.
Her son has considerable difficulties by virtue of conditions of autism, Asperger’s disease and ADHD. The evidence showed that the deceased was a kind and caring mother in relation to her son. That evidence came from people who worked at his school.
After the relationship between the accused and the deceased commenced, members of her family noticed for the first time that she was injured in various ways including bruises, black eyes and cuts and abrasions.
Even after the deceased had reported the accused to the police on two occasions, one of which resulted in him being incarcerated for just over 4 months, the deceased continued to maintain contact with the accused. This included visits to the prison.
Mr Vadasz for the accused has painted the relationship as a loving one in which they were both sexually attracted to each other. He referred to a series of text messages passing between the accused and the deceased in the period leading up to her death. He asked me to find from these messages that there was no possibility that the accused could have formed any intention to hurt the deceased in any way. The text messages are all contained in exhibit D52.
I have read through those messages and I have attempted to analyse them in conjunction with the other evidence which I have. One witness, Mr Hull, gave evidence that the accused was jealous and mentioned in conversations to Mr Hull and others that the deceased was sleeping around. It is apparent from the text messages that the accused had some sort of hold or control over the deceased, but wanted continual reassurance from the deceased. The messages speak for themselves. Many times on a single day and sometimes within a short time of each message the deceased wrote messages to the accused reassuring him that she loved him. I will instance just a few examples of how in my opinion these messages really do indicate the nature of the relationship between the accused and the deceased.
On 18 February 2011 the accused was arrested for an assault on the deceased. On this occasion he spent three days in police custody before being granted bail by a magistrate on 21 February 2011. The bail conditions, in addition to others, specified that:
4.I will not contact, harass, threaten or intimidate Katherine Towner.
5.I will not attend at any residence or place of work at which Katherine Towner may reside or work.
6.I will not attend within the municipality of Victor Harbor, except for the purpose of attending at court for this matter.
On 8 March 2011 there were approximately 25 messages exchanged between the accused and the deceased.
Most fall into the category of “love messages” sent between them in addition to “text me”, “are you ok” and “are you going to ring me”. These are a few examples of the messages the deceased sent to the accused:
Love you babe just letting you know so you dont forget sexy
I love you so much babe your the only one for me and i mean that and i hope you know that sweety i am your baby girl and always will be
Did you get my message baby? I love you
I miss you so much baby i wish i was with you that is all i want right now
I wish i had my animal in my arms i miss you so much baby i hope you miss me as much as i miss you i feel so up set with out you here
Can you please text me back please baby i love you so much
I love you to baby and all ways will
You mean everything to me honey i really mean that i love you with all my heart and soul i am your girl for ever
In addition the following exchanges took place on the same day:
The accused:       I can t handel this shit eny more
The deceased:     What do you mean are you going to leave me?
The accused:       It s nothing to do with you I will talk to you about it later why do you want to leave me i hope not
The deceased:     Of cause not baby i want to spend the rest of my life with only you only you babe your mine just dont leave me
The deceased:     Did you get my text baby?
The accused:       I wont dont worry you know how mutch i love you my baby girl we will be togethr one day so dont give up hope
The deceased      I am not i just want to be with you right now that is all i am lost with out you i love you more then you know
I also note that these are only the text messages exchanged between the deceased and the accused and do not include phone call exchanges that may have occurred. I acknowledge that the accused also wrote “love messages” to the deceased declaring how much he loved her. In my opinion, the volume of these messages sent between them in one day with nearly every message containing the words “love you”, indicates some perceived need by the deceased to satisfy the accused that she loved him.
On 10 March 2011 the accused wrote to the deceased the following messages, all sent within the hour:
8.15 am:Yes i do why dident you call me i fucken love you so mutch
8.44 am:I love you baby and i dont want to break up
8.53 am:Can you answer your phone please i love you
In addition on 12, 14 and 21 March 2011 the accused sent the deceased the following messages:
Hay can you please anser yore phone i am realaly worred about you just let me know if you are ok please i am stressing out i love you so mutch dont do this to me i miss you babe and i will do whatevea it takes to make it work i love you so mutch dont evea forget that love ya allways yore man forevea
Dont you love me any more can you please just let me know what is going on i miss you and i dont want us to end i love you so mutch ok baby girl
I love you so mutch please dont leave me my baby girl just promess that you will call me later
What the fuck is gong on dont you love me eneymore? I miss you so mutch just let me know whats going on please i worred about you love you allways yore man
The volatility of the relationship is evident from the following messages sent on 15 March 2011:
The accused: Fuck u dont give me that shit u know i love u
The deceased: Dont start on me i will ring you when i can i am busy at the moment
It is apparent from the tone of the messages that, for whatever reason, the question of terminating the relationship was a live issue between them. The deceased appears to be a troubled person at this time in relation to her relationship with the accused. He had assaulted her only three weeks earlier.
As the relationship between the accused and the deceased developed the deceased grew apart from her family including her son. Getting closer to Easter 2011 the deceased all but gave up care of her son who was then being looked after regularly by her brother and mother. This was evident from the evidence of the deceased’s mother and brother, as well as text messages apparently sent from the deceased’s mother to the deceased, and I will set out just two examples, sent on 6 March 2011 and 19 March 2011:
You had better ring me your son is asking when you are coming home he is upset if you do care for him you will ring him
So I guess you wont be home again tonigh if you are not home tomorrow then we are getting in touch with walfare about shane because we are sick of the shit from you all the time
The deceased sometimes became drunk in the period leading up to Easter 2011 which was quite out of character from her previous conduct. The accused regularly became drunk. Sometimes he was drunk enough to pass out.
Whilst I accept that there was clearly fondness at one level between the accused and the deceased it is my view that she was afraid of the accused and was required to reassure him regularly of her devotion to him. Ms McDonald in her final address described the relationship as “the coming together of two people who separately were in their own ways dysfunctional and together they were toxic”. I agree with her summation and her further comment as follows, “There were phases of a positive relationship. There would be deterioration, an escalation of violence, reports to the police, regrets of reports to the police, reconciliation and then on it would go”.
One good example of the way in which the deceased drifted apart from her family, because of her perceived need to be with the accused, was Christmas of 2010 when she failed to spend Christmas Day with her son, and instead, spent it with the accused who was actually in gaol because of her assault allegations against him.
I would therefore describe the relationship as always teetering on the brink. The accused seemed to need to be constantly reassured by the deceased of her love for him. The extent and nature of the text messages passing between them does not appear to me to be indicative of a normal, loving relationship. I have formed the view from what I have been able to glean from the evidence about the deceased and the accused, and relying on the evidence of Mr Hull, who I found to be an impressive witness, that the accused was jealous and insecure and needed bolstering on a regular basis. When the two drank, any harmony that they shared quickly disappeared and was replaced by arguments, some of which lasted for hours.
Some of these matters are easier to understand on an examination of the evidence of those who lived in and around both the accused and the deceased. I will examine that evidence shortly.
3. Evidence of discreditable conduct

Prior to the commencement of the trial the DPP gave notice pursuant to s 34P(4) of the Evidence Act 1929 (SA) (“Evidence Act”) of its intention to adduce evidence of discreditable conduct. The notice focused on conduct tending to explain the nature of the relationship between the accused and the deceased, the accused’s use of alcohol and drugs and the fact that the accused was on bail with a condition not to contact the deceased. The other matters contained in the notice were not relied on by the prosecution.
3.1 The legislation
Division 3 of the Evidence Act is headed “Admissibility of evidence showing discreditable conduct or disposition”. The sections in the division came into operation on 1 June 2012.
After hearing argument prior to the trial commencing I decided to admit the evidence pursuant to s 34P of the Evidence Act. These are my reasons for admitting the evidence. I decided that the evidence had a permitted use, namely, to properly place the actions of the accused into the necessary background of the relationship which existed between the accused and the deceased prior to her death. I decided that the probative value of the evidence substantially outweighed any prejudicial effect on the accused pursuant to s 34P(2)(a) and (b).
I decided that the permissible use of the evidence could be kept sufficiently separate and distinct from the impermissible use, namely, the propensity of the accused to commit the offence, pursuant to s 34P(3).
I also direct myself pursuant to s 34R(2) that any evidence used in the process of my reasoning leading to a finding of guilt cannot be used unless, on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt.
Pursuant to s 34R(1) I will identify and explain the purpose for which the evidence may and may not be used.
I set out s 34O, s 34P and s 34R in full.
34O—Application of Division
(1)This Division applies to the trial of a charge of an offence and prevails over any relevant common law rule of admissibility of evidence to the extent of any inconsistency.
(2)This Division does not apply to—
(a)     evidence adduced pursuant to section 18; or
(b)     evidence of the character, reputation, conduct or disposition of a person as a fact in issue.
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
3.2    Submissions for admissibility
Ms McDonald submitted that the new legislation now provides a scheme to cover what has been traditionally called either propensity or similar fact evidence. She submitted that, particularly in the case of a trial by judge alone, nothing much has changed in terms of the type of evidence the prosecution could lead and the use to which such evidence can be put.
Ms McDonald submitted that in this matter it is what she calls “classic relationship evidence”, that is, the evidence to be considered under s 34P(2)(a). In this matter I have to be satisfied that the probative value of the evidence proposed to establish the nature of the relationship between the deceased and the accused substantially outweighs the prejudicial effect such evidence would have on the accused.
Ms McDonald provided an outline setting out a chronology of the relationship evidence she wished to call. She submitted that the relationship evidence was critical to an understanding of what occurred on the Easter weekend in 2011. She submitted that the relationship was a volatile one. She submitted that it was a toxic relationship with incidents often culminating in violence. She pointed to a history of the deceased going to the police and reporting the accused, the accused being gaoled, the relationship resuming after his release from gaol and then further episodes of arguments.
She characterised the relationship as on the one hand involving some degree of affection but also increasing animosity between the two. Ms McDonald submitted that the evidence was necessary on the prosecution case to show why it might be that the accused, apparently in such a relationship, could end up doing what the prosecutor alleged he did in killing the deceased on the Easter weekend.
It was submitted that it would be extraordinary that, with no proper explanation, offending of this sort could occur if the deceased and the accused lived in a positive, affectionate relationship. The evidence was necessary, Ms McDonald submitted, to put into context how the relationship was operating by the Easter weekend. She submitted that it was clear that the couple were constantly “at each other”. On the prosecution case the deceased had ended up the worse for wear on previous occasions when she had reported the accused to the police. Ms McDonald submitted that if the prosecution were prevented from leading that evidence it would mean presenting the case in a vacuum with no ability to test the true relationship as it existed at the time.
Ms McDonald relied on the reasoning in The Queen v Hissey (1973) 6 SASR 280 and in particular on the passages at pages 288 and 289. She submitted that this reasoning was still appropriate despite the wording of s 34O(1).
The court, consisting of Bray CJ, Hogarth and Mitchell JJ, stated that:
Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased. (Wilson v The Queen). We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R v Ball, Wilson v The Queen. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased.
It was Ms McDonald’s submission that the evidence proposed to be led by the prosecution went to establish three matters. The first was who killed the deceased, the second was the relevant intention and the third was the overall setting as to what happened. Ms McDonald submitted that the evidence if allowed would establish that by the time the deceased and the accused got to the Easter long weekend the deceased was effectively estranged from her family, which might explain, as things progressed over the weekend, why she did not reach out to anyone by way of a phone call. She had her phone with her in the car.
Ms McDonald submitted that the evidence would explain why the couple had gone camping in the first place because at one level the relationship had to be kept secret not only from the deceased’s family because of their disapproval but also from the police, because of the accused’s bail conditions.
Ms McDonald summarised for me the way in which she intended to lead the evidence and from whom. She made it clear in her submissions that she was not proposing to lead any detailed history that the deceased gave to anyone about how she obtained the injuries in the incidents which occurred prior to Easter 2011. She did intend leading, however, that on some occasions the deceased had nominated that it was the accused who caused her injuries. She also proposed to lead evidence that on other occasions the deceased had said that she had sustained the injuries in other ways.
Ms McDonald submitted that the evidence of relationship background demonstrated that the offence did not occur out of the blue. She submitted that there was a build up to the point of the Easter weekend. She submitted that it was always relevant for the Court to know whether the victim was on good or bad terms with the accused. She submitted that previous feelings of enmity, acrimony or dislike might tend to explain why the assault escalated to the level it did on the Easter weekend. She submitted it was also relevant to rebut any possible defence suggestion of self-defence or even an accident. She submitted that the evidence explains how these two people came to be sitting in a motor vehicle in an isolated spot during the Easter weekend. She submitted that it was highly probative in these respects.
Mr Vadasz for the accused submitted that the standard relating to the admission of this type of evidence has changed considerably with the introduction of the legislation. He said it is a deliberate shift, with a new balance applicable. He pointed to the use of the words “substantially outweighs” in s 34P(2)(a). He submitted that this is more than the “balance of probabilities” test. He submitted that effectively it should be equated to something very close to, if not as high as, “beyond reasonable doubt”.
Overall it was Mr Vadasz’ submission that the bar has been raised in relation to the test. He submitted that there is a clear prejudicial effect if the evidence were allowed in this matter and he submitted that in the circumstances outlined by the prosecutor it should not be allowed to lead the evidence. He submitted that on the description given by the prosecutor it could not be said to “substantially outweigh” the prejudice.
Mr Vadasz submitted that whatever way you looked at it, it is propensity evidence. He submitted that there was no question of identity in the trial from the point of view of the accused. He said it is acknowledged that it was the accused who went on the camping trip and there is no dispute that on a morning over that Easter weekend he woke up in the deceased’s car. He said identity is not an issue. He submitted that none of the evidence is capable of explaining a motive on the part of the accused. He agreed that it was an unhealthy relationship.
He said if the evidence is admissible it should only be admissible to show that they fought but that the evidence could go no higher.
Mr Vadasz submitted that the tests as enunciated in Hissey and also in Wilson v The Queen (1970-1971) 123 CLR 334 no longer apply because the test is significantly more stringent.
Mr Vadasz submitted that it is not possible to discount a “mutuality in the aggression between the two”. To that extent he accepted that some evidence of background is necessary but said that there was nothing to show who started the fights other than the inference that the accused had attacked the deceased before. He said the prosecutor wished to invite the Court to infer that the accused was the aggressor and in this area Mr Vadasz submitted that the probative value cannot substantially outweigh the prejudicial value. He did not concede that such an inference can be drawn.
Mr Vadasz’ submission centred around a relationship with a background of alcohol consumption leading to verbal and physical exchanges. He submitted that there is evidence that the arguments went both ways, that it was not a one-sided story. He submitted that any attempt to go beyond merely establishing that there was a dysfunctional relationship is impermissible. He pointed to some of the denials by the deceased that it was the accused who was responsible for her injuries. In particular Mr Vadasz submitted that there should be no evidence allowed as to what was said by the deceased to her doctor as to the cause of her injuries. He submitted that the history taken by the doctor should not be led before the Court. Ms McDonald responded that she did not intend to lead that evidence but merely to question the doctor regarding his observations of the injuries.
Mr Vadasz accepted that if the Court were of the view that a background of dysfunctional behaviour with consumption of alcohol and violence was a necessary part of the history, that was only one question. He submitted it was quite another matter as to whether the accused was responsible for the injuries and whether the accused or the deceased were aggressors and that therefore this evidence should not be led.
3.3 The common law position
In my view the common law position with regards to such evidence is a relevant background to the interpretation of the new legislation.
The leading High Court authority on discreditable conduct as part of a relationship background is still Wilson. This decision has been applied by the South Australian Full Court in Hissey and more recently in R v Matthews (1991) 58 SASR 19.
The accused in Wilson was charged with the murder of his wife. The accused pleaded not guilty claiming that her death was caused by the accidental discharge of a gun. The Crown applied to lead evidence that the deceased in the course of quarrels with the accused had said to him in the presence of witnesses: “I only know you want to kill me for my money”, and “I know you want to kill me, why don’t you get it over with”.
The trial judge held that evidence of the statements were admissible but cautioned the jury not to treat the statements as evidence of the actual state of mind of the accused.
The decision was appealed to the High Court comprising five judges, where Barwick CJ, McTiernan, Menzies, Owen and Walsh JJ held that the statements were admissible as they were relevant to show the relationship existing between the deceased and the accused and so as to explain the act charged and also the statements assisted the jury to decide between the alternative explanations.
Barwick CJ said at 339-340:
But it was also objected that, whilst evidence of statements of the applicant indicating his attitude to the deceased and statements of the deceased which could be regarded as likely to create animosity in the appellant towards her would have been admissible, evidence of statements by the deceased as to what she considered the appellant's attitude to her to have been were inadmissible. It may at once be conceded that, if the statement attributed to the deceased had not been part of the evidence of a quarrel of a significant kind, the statement of her opinion of the applicant's attitude or intention towards her would have been inadmissible. But in this case the evidence of the statement was part of the evidence of a quarrel between the parties and, indeed, the words spoken in the course of that quarrel were indicative of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached. It is impossible, in my opinion, to maintain the proposition that though the fact of quarrelling may be admissible, the primary evidence of the quarrelling, namely the words and gestures passing between the parties in the course of the quarrel, may not. Of course, care must be taken by appropriate directions to the jury to properly confine their use of such statements. Here the trial judge took adequate precautions in that behalf. In my opinion, the evidence of what the deceased said in the course of these quarrels between herself and the applicant was admissible.
[Footnote omitted]
Menzies J at 344 stated that:
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.
I agree with these statements. These are with respect clear examples of a commonsense approach to the admissibility of evidence which is on its face relevant. These statements are still important when considering the admissibility of evidence under the new legislation. Parliament has simply said that the legislation prevails if there is inconsistency which is nothing more than a restatement of the law in any event.
In my opinion, in this case the evidence of the status and deterioration of the relationship between the accused and the deceased must assist me in deciding how the deceased may have died over the Easter long weekend in the presence of the accused, and whether it may have been as a result of an accident.
This evidence is classic background relationship evidence, to use the words of Ms McDonald, and excluding this evidence would mean deciding the occurrence of events during the Easter long weekend in a vacuum. It sets the scene in which the alleged offending occurred and is relevant as to the deceased’s state of mind towards the accused. This evidence is important. I have directed myself as to the adequate precautions I must take in using this evidence and in particular that, pursuant to s 34P(1)(a), the evidence cannot be used to suggest that the accused is more likely to have committed the offence because he has engaged in discreditable conduct.

Wilson was applied by the South Australian Court of Criminal Appeal in Matthews. The headnote states, inter alia,
Evidence given by witnesses of statements made by the deceased to them or in their presence to the effect that she was in fear of and did not wish to see the appellant is admissible, probably as ‘original evidence’, to prove her state of mind if that is relevant to the charge, but not to prove the truth of the facts contained in the statements”, not to use it to impute a guilty intent to the appellant.
This is an example of where the court has allowed background relationship evidence, in this case from a statement of the deceased, not to prove the truth of the facts contained in the statements but because of its relevance to one of the elements required to be proved, in that case, the consent of the deceased to sexual intercourse.
3.4 Intention of Parliament
The cases I have referred to were decided under the regime which existed at common law. Section 34O(1) provides that s 34P prevails over any relevant common law relating to admissibility of evidence in the event of inconsistency. Therefore in my opinion, given the section is being interpreted for the first time, it is appropriate to have regard to the Second Reading Speech of 6 April 2011 relating to the Evidence (Discreditable Conduct) Amendment Bill provided by Ms McDonald during argument. There are obvious limits to which this speech can be used.
In K-Generation Pty Ltd & Anor v Liquor Licensing Court (-2008-2009) 237 CLR 501 at [51]-[52] French CJ said:
[51]The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes. In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.
[52]At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”.
[Footnotes omitted]
The Second Reading Speech does assist in providing guidance on the intent of Parliament.
There are six main features of the Bill according to the speech. I will briefly summarise the features that Ms McDonald relied on.
The Bill extends to the admissibility and use of evidence of discreditable conduct for non-propensity or non-similar fact purposes such as to show the background or context to alleged events, the relationship between the parties, to provide evidence of motive or intention in appropriate cases or to disprove a possible defence such as accident, self-defence or provocation. The Bill is intended to maintain the grounds for the admissibility and use of this type of evidence to the sensible balanced workable model outlined by Doyle CJ in R v Nieterink (1999) 76 SASR 56. Ms McDonald submitted that it is this feature outlined in the Bill that is directly relevant to this case.
The second feature relied upon by Ms McDonald is that the Bill endorses the position outlined in Nieterink and other cases that, if the evidence of discreditable conduct is admitted for a specific and limited purpose, such as to establish the background or context to the alleged offences or to shed light on the relationship between the parties, and not for a wider propensity or similar fact line of reasoning, then it is incumbent upon the trial judge to give the jury an explicit warning as to both the correct and incorrect uses to which the evidence can be put.
Ms McDonald submitted that the change in wording in this legislation is subtle and certainly there was no intent to completely revisit the topic. Ms McDonald emphasised that she is not suggesting that there is no change in the legislation. She accepts that the wording has changed, but in her submission it is not significant in relation to the facts of this case. She said the prejudicial effect is still exactly the same, even though the rest of the legislation might have different nuances. It is mainly directed to the effects on the jury. As to the admissibility, Ms McDonald said that the probative value must still be very high. In her submission the description given to the approach in Nieterink as sensible, balanced and workable is a good description and the sort of approach suggested by Doyle CJ is the position I should adopt in this case. Ms McDonald submitted that half of the test is still that the evidence has to outweigh any prejudicial effect. She said when one weighs prejudicial effect with probative value, the prejudicial effect in a trial by judge alone is close to negligible. The prejudicial effect has always been linked with the potential for a jury to misuse the evidence.
As I stated earlier, Mr Vadasz made a concession from the bar table that there is no dispute that the accused went on the camping trip and that there is no dispute that he woke up in the car. However, many questions are still left unanswered. As Ms McDonald said, there was no reference to any other persons there, no clarification as to whether there was any suggestion of accident, lack of intent or self-harm. She said there is a myriad of possible scenarios upon which light would be shed by this evidence. Ms McDonald submitted that who or what caused these injuries to the deceased is still a matter of dispute. I agree with her submission.
Mr Vadasz referred to the standard of proof that is referred to in the Bill. He referred to a passage that states:
The Pfennig test requires that the evidence of discreditable conduct, at least for propensity or similar fact purposes, will only be admissible at trial where it is more probative than prejudicial to such a degree that there is no rational explanation of that evidence consistent with the innocence of the accused. This test has been heavily criticised, even before HML, as technical, complex and too restrictive. It raises the bar too high.
The Pfennig test derives from the decision in Pfennig v The Queen (1994-1995) 182 CLR 461. HML is a reference to HML v The Queen (2008) 235 CLR 334.
Mr Vadasz submitted that there is a step back from the stringent test in Pfennig that there is “no rational explanation” of the evidence consistent with the innocence of the accused. He referred to pages 6 and 7 of the speech which, among other things, discusses the use of the terminology and sufficiency of probative value:
… the Bill does not preclude the use of evidence of discreditable conduct to suggest that a defendant is more likely to have committed an offence if the evidence relies on, or discloses, a particular propensity or disposition of the defendant as circumstantial evidence of the fact in issue. Such evidence may be admissible if led for that purpose. There will be circumstances in which the probative value of evidence of discreditable conduct is derived only from the propensity of the accused or disposition to act in a particular manner. … It would be artificial to attempt, as has been sought on occasion in the past, to argue that the evidence of discreditable conduct in such cases can always be properly admitted on a basis other than relying on the propensity or disposition of the accused to act in a particular way.
The Bill distinguishes between evidence of discreditable conduct that is introduced for propensity or similar fact purposes as circumstantial evidence of a fact in issue and that which is not. If the permissible use of the evidence of discreditable conduct which the prosecution seeks to use relies on a particular propensity or disposition of the defendant and circumstantial evidence of a fact in issue then the permissible use must additionally have a strong probative value having regard to the particular issue or issues arising at trial for the evidence to be admissible. This means that the evidence must be more than simply relevant or material. It must have a sufficiently strong probative value to clearly outweigh the prejudicial effect of such evidence. What will amount to strong probative value will depend on the particular circumstances of each case. The test of establishing strong probative value is not intended to be the same as under Pfennig as required the exclusion of any rational inference inconsistent with innocence.
…
The Bill provides that, where the evidence of uncharged acts of past discreditable conduct is adduced for a non-propensity or non-similar fact purpose, then the evidence need only be of sufficient probative value as to substantially outweigh its prejudicial effect. It need not additionally be of strong probative value.
[My underlining]
It is my view that the evidence proposed by Ms McDonald is relevant. It is relevant to show how the deceased died and whether it was murder as distinct from death by accident. If there had been evidence of a close and loving relationship with no suggestion of arguments or disharmony the evidence of the relationship would have been admissible to show the unlikelihood of the accused killing his partner. This follows the reasoning in Wilson.
If the evidence were not allowed, to use Menzies J’s words with respect, it would be to allow “a set of artificial rules remote from reality and unsupported by reason”.
In relation to my decision under s 34P(2)(a) I have to consider whether the probative value of the evidence “substantially outweighs” any prejudicial effect.
I agree that the choice of those words means that Parliament intended something beyond proof on the balance of probabilities. Likewise I agree that it does not equate to proof beyond reasonable doubt.
Had Parliament intended either of those consequences it could easily have said so. The Second Reading Speech uses the words “clearly outweigh”.
Substantial in my view means real or of substance. The Macquarie Dictionary (5^th Edition) defines substantial as “of a corporeal or material nature; real or actual”.
3.5 Comparative legislation
The words “substantially outweighs” convey to me a concept of greater rather than less. This view is supported by views expressed in New South Wales regarding the use of the term “substantially outweighs” in the relevant legislation under the Evidence Act 1995 No 25 (NSW).
The relevant part of the New South Wales Act is Part 3.6 entitled “Tendency and coincidence”. Restrictions are placed on the prosecution in leading this type of evidence. Section 101(2) states:
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1)…
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have may have on the defendant.
[My underlining]
Later s 135, which is the general discretion to exclude such evidence, states:
135General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)     be unfairly prejudicial to a party, or
(b)     be misleading or confusing, or
(c)     cause or result in undue waste of time.
[My underlining]
In R v Clark (2001) 123 A Crim R 506, Heydon JA at [163] considered the way in which a trial judge had dealt with the interpretation of “substantially outweighed” in s 135. Heydon JA at [163] set out the words used by the trial judge as follows:
[163]… I have considered whether the evidence should nevertheless be rejected in the discretion of the court but I do not think that it should. It seems to me that its probative value well outweighs its capacity unfairly to prejudice the accused.
[My underlining]
The trial judge used the words “well outweighs” and not the words of the section in directing himself.
In considering whether the judge had properly considered s 137, which was a general exclusionary provision for prejudicial evidence, Heydon JA has endorsed the approach taken by the trial judge to his interpretation of s 135. He says at [163]:
[163]… This corresponds with the language of s 135, which creates a discretion to refuse to admit evidence if its probative value substantially (ie “well”) outweighs the danger that the evidence might be unfairly prejudicial to a party. If the probative value of the evidence “well” outweighs its capacity for unfair prejudice, it cannot be held, as s 137 requires if it is to trigger the court's obligation to exclude evidence, that the probative value of the evidence is outweighed by the danger of unfair prejudice to the appellant. Hence though the trial judge did not specifically refer to s 137, the conclusion he reached in conclusion to s 135 necessarily entailed the rejection of Mr Stratton's s 137 submission. …
In my view “well outweighs” is a good and convenient way of considering the balance to be struck between the probative value versus the prejudicial effect on the accused in the wording of the new legislation.
In R v Ellis (2003) 58 NSWLR 700, a court of five judges sat to consider the “Tendency and coincidence” provisions in the New South Wales Evidence Act. The court did not specifically consider the meaning of the words “substantially outweighs”.
It was held that Part 3.6 of the Act dealing with “Tendency and coincidence” prescribed a regime for such evidence to cover the field to the exclusion of the common law principles previously applicable.
In particular the court held that the words of s 101(2) required a balancing exercise which can only be conducted on the individual facts of each case. It required the court to make a judgment in each case rather than exercise a discretion.
Spigelman CJ said at [88]-[89]:
[88]The continued application of a “no rational view” test is not, in my opinion, consistent with a statutory test which expressly requires a balancing process and tilts that process in the same direction as that which the joint judgment in Pfennig suggested, but by the use of different terminology, that is, “substantially”.
[89]The reasoning in Pfennig applied the “no rational explanation” test to a common law principle that probative value outweighs prejudicial effect. That reasoning is, in my opinion, inapplicable to a statutory test that probative value substantially outweighs prejudicial effect.
I agree with Mr Vadasz that the bar has been raised and that the standard relating to this type of evidence is now higher.
I now ask myself whether the probative value of the evidence proffered by the prosecutor “substantially outweighs” or “well outweighs” the prejudicial effect on the accused. In coming to my decision I take into account that the evidence is clearly relevant. Without it, there would be an unsatisfactory and artificial history of the relationship available to me. There is no remoteness in time from the events commencing later in 2010 and leading up to pre-Easter 2011 and the death of the deceased. The deceased and the accused were quarrelling up to the Easter weekend. The arguments had extended for many months prior to that. The physical assaults had resulted in the incarceration of the accused and bail conditions on his release that he was not to have contact with the deceased. He was in breach of those bail conditions on the Easter weekend and had been on many other prior occasions.
The prejudicial effect on the accused in a trial by judge alone is significantly less than a trial by jury even with proper direction. This is so providing I constantly remind myself that I cannot use the evidence for the impermissible use of propensity reasoning.
For all those reasons I decided to admit the evidence, not as evidence of any propensity of the accused but as relevant background relationship evidence.
3.6 The actual evidence of discreditable conduct called by the prosecution
The evidence of the prior discreditable conduct of the accused, which I admitted, comes from four different categories of witnesses. First there are the family members who made observations as to the changes they observed in the deceased after she met the accused and in particular that they observed for the first time bruising and marks on her body. The second group of witnesses were police officers who attended the deceased when she reported assaults which she attributed to the accused. The third group comprised people who, after the alleged assaults by the accused, provided support for the deceased and including two doctors who treated the deceased following two of these occasions. Finally there were also witnesses who were occupants of houses in or around Seaview Road, Victor Harbor where the deceased lived for a period of time prior to her death. I will now summarise the evidence relied on by the prosecution.
The deceased’s half-brother Sean Towner said that he and his sister were close. He said he became aware that she was seeing the accused in August 2009. After his sister started seeing the accused the family saw less of her. They saw the accused on an average of once a week.
He said he noticed a change in his sister. She became withdrawn. He also saw her with injuries after the time she met the accused. He specified a particular occasion when he saw his sister and the accused walking out of Liquorland. He said she had a small welt under her left eye and you could see the darkness. He said she normally did not wear make-up but she had on this occasion. He asked her what happened and she shrugged it off and told him not to worry. He said at that time the accused stood by her side and puffed out his chest.
Mr Towner said that he saw his sister at the Victor Harbor Hospital in early 2010. She had scratches and bruises over much of her body and around her throat and neck. He also saw scratches and cuts to her back. He said on this occasion she was terrified and trembling and could not talk properly. He said she had what looked like burn or round marks on her back. He confronted the accused when he took his sister back to get some clothes from the place where she was living. He said he asked the accused why he had hurt his sister and the accused responded that he had not done so.
Later he said he noticed that she seemed to go away on a Thursday each week. He said on those occasions his sister’s son Shane stayed with he and his partner and Mrs Hopkins who was the mother of both the deceased and Mr Towner. He said that by this time they were looking after Shane each weekend.
He said he last saw his sister a week before she died. He said that by that time her son was spending four days a week with them. He said that before she met the accused his sister did not drink. After she met him he saw her drunk quite often.
Gail Hopkins is the mother of the deceased. She said that the deceased’s son Shane suffers from autism, Asperger’s and ADHD. She said that she saw her daughter every day or every second day until she met the accused. After she met the accused Mrs Hopkins noticed a few bruises. She said the first time she noticed this was probably April 2010 when she had a black eye and bruises and scratches on her arms. She asked her daughter about her injuries and was told that she had hurt herself and that the cat had done some of the scratches. On another occasion she had a cut on her throat and bruising around her eyes and scratches and bruising down her arms. On this occasion when Mrs Hopkins asked her daughter what had happened she told her that the accused had done it to her. She took her daughter to the police station where her daughter made a statement to the police.

Mrs Hopkins said on another occasion she received a phone call from the school which Shane attended and was told that her daughter had been taken to the Victor Harbor Hospital. When Mrs Hopkins arrived her daughter was in Accident and Emergency. She said her daughter was crying and shaking. She noticed bruising around her eyes and cuts over her face. Her arms were also bruised and she seemed to have trouble breathing. Following that attendance at the hospital Mrs Hopkins again took her daughter to the police station. She took photographs of her daughter’s injuries after that incident. These photographs were tendered.
Mrs Hopkins recalled a birthday celebration on 27 February 2011 when her daughter attended and she observed injuries. She said she had bruising, a black eye, scratches and bruising on her arms and was limping.
The last time Mrs Hopkins saw her daughter was the Wednesday before Easter 2011. She said by this time Shane was permanently staying with she and her son and his partner Jesse. She said on this occasion she noticed her daughter had been drinking. She said that her daughter would stand up for herself and argue verbally.
Jesse Jeisman is the partner of Sean Towner. She said that she knew the deceased and that they had a sister-like relationship. She said she saw the deceased in the early parts of the relationship about four times a week. She said that stopped when she started going out with the accused. She said they appeared to get along well when she saw them together and she said that sometimes they argued.
Ms Jeisman remembered an occasion when she saw the deceased with a black eye. She thinks that was later in 2010. She saw her again some months later when she noticed a black eye and a bruised cheek. On that occasion she said that the deceased stayed the night with them. In early 2011 between January and February she noticed another injury and that the deceased appeared to be in pain. She said she had bruising to her head and cigarette burns to her back, with bruising on her legs. She said she was shown the cigarette burns on her back. She remembers some photographs being taken of those injuries. She said that between Christmas of 2010 and the time of the deceased’s death she had a lot of contact with the deceased. That included helping her move house. She remembered another occasion when she and her partner went to meet the deceased at the Woolworth’s car park at Strathalbyn. She said that the deceased arrived late and her emotional state was angry and upset. The last time she saw the deceased was on the Thursday of the Easter weekend in 2011.
When cross-examined regarding the cigarette burns Ms Jeisman acknowledged that she must have made a mistake and that it was a different occasion because they are not shown in the photographs. She said she is not mistaken about seeing the burns. She said there were about five of them. She thought photographs had been taken.
As I have indicated, various police officers gave evidence of their observations. Mr Leach saw the deceased on 26 August 2010 at the Victor Harbor Police Station. The deceased came to report an assault. He wrote out the Police Incident Report. The deceased nominated the accused as having caused her injuries. The officer saw a bruise on her forehead and also a bruise on her stomach when she lifted up her top. She told the police officer she was concerned for her safety. He arranged for photographs to be taken of the injuries. Another police officer, Mr Turner, attended the following day, in the company of Mr Leach, to take photographs. The photographs were tendered.
Relating to that same occasion Samanda Attard was another officer on duty at Victor Harbor Police Station. She received a request by the deceased to have the accused removed from the house. She arrested the accused. She told the accused that a complaint had been made by the deceased. Later that day the deceased telephoned the police officer and asked her to drop the charges. It is an agreed fact that the accused was taken into custody on 26 August 2010 and not released until 7 January 2011.
Samantha Massey worked at the Mount Barker Family Violence Investigation Section and took a phone call on 18 October 2010 from the deceased who wanted to withdraw charges against the accused. She counselled against this but, although she attempted to, could not again make contact with the deceased.
I add that the trial of the accused was due to commence at Victor Harbor Magistrates Court on 9 February 2011. The note on the record indicates that the deceased failed to attend as a prosecution witness and the magistrate dismissed the matter for want of prosecution. The accused was granted bail on 7 January 2011.
Mr Bennier was a bus driver who drove the school bus at Victor Harbor. He regularly picked up the deceased’s child Shane who was accompanied to the bus stop by either his mother or his grandmother. He gave evidence regarding an incident on 18 February 2011. On that occasion the deceased asked to get on the bus with her son. Mr Bennier said she was pulling her son as fast as she could. He noticed that she had bruising on her cheeks and eye sockets. He described her as appearing to be stressed. Mr Bennier said that on that day the deceased spoke very softly and did not breathe very deeply. She spoke more quietly than she usually did. He then saw a male person coming around the corner. He said he had never seen this person before. He described him as Caucasian, stocky, muscular, with a short hair cut. He said he was in his 30s. When the male approached the bus the deceased asked the bus driver to close the door. Mr Bennier then closed the door and saw the male make a gesture like a shrug. He drove the deceased and her son to school.
Elizabeth Edwards was a school counsellor at Victor Harbor Primary School where Shane attended. She spoke of the incident on 18 February 2011. She said the deceased turned up at school about 9 o’clock. She described her as being in a dreadful state. She said she was not fully dressed and was physically hurt. She was barefooted. She was dishevelled and swaying and huddled over. She collapsed into a seat. She saw that she had one eye closed. She had bruising all over her face. On her torso she observed bruising and also on her legs. She asked another school officer, Ms Moores, to come and assist. Together they took the deceased to the police station. The police officer said that they should go straight to the hospital. It was after visiting the hospital that they were referred to see Dr Fowler at his surgery.
Once finished at the doctor’s, they took the deceased back to the police station.
Ms Edwards indicated that prior to that occasion she had seen the deceased with injuries. She could remember two specific occasions, one where she showed her bruising on her stomach and the other time a gash on her leg. She said the last time she saw the deceased was on the Thursday, that is, 21 April 2011. On that occasion the deceased came into her office unannounced. She said she was disorientated, not very coherent, had garbled speech and was agitated and was scratching herself. She said at one stage she fell asleep in mid-sentence. She said she looked unkempt and smelt and looked dirty. She said that the deceased wanted to use the phone to ring the accused. She discouraged her from doing that. The deceased insisted and eventually spoke to someone. Ms Edwards said that the deceased had wanted to go and see the accused who was at Strathalbyn. She asked her how she would get there and she told her that she would truck there, by which the witness understood hitch hike. She said she appeared to be under the influence of something on that occasion.
Ms Moores was the chaplain at the school and corroborated the evidence of Ms Edwards. She gave similar descriptions in relation to her observations of the injuries carried by the deceased on Friday 18 February 2011. On the deceased’s back she said that she could see some injuries which she described like welts or they could have been old injuries. She said there was bruising and welts or long burns on her back. She said they were like lines or whip marks. They looked like burns to her. They were on her lower back, across the torso part of her back.
On that same occasion the deceased was taken by both the school officers to a local doctor, Dr Fowler, after they had taken her to the hospital. He said when he first observed the deceased she was curled up and very distressed. He said she had severe bruising to her throat. She was only able to talk in a whisper. She had a large haematoma on the right side of her forehead with abrasions, multiple other facial bruises and abrasions, and abrasions and scratches some of which appeared to be healing. Her abdomen was generally tender. In relation to the severe bruising to her throat, he described it as being on each side virtually opposite her voice box. He said the bruising was quite obvious and there was also swelling. He said that as a consequence of the severe bruising to her throat she was only able to talk in a whisper. He observed a black left eye. In his opinion the injuries were caused in the last 24 hours. Some of the others were probably weeks old in his view. He did not notice any cigarette burns.
Police officer Daniels was at Victor Harbor on 18 February 2011 when the deceased attended. He remembers both the women from the primary school attending with her. He said on that occasion the deceased nominated that it was the accused who caused the injuries. He took a statement from the deceased later in the day.
Another police officer Brain was also involved on 18 February 2011. He received a phone call that the accused was in a back yard and proceeded to an address where he arrested the accused for an assault on the deceased. The police officer later informed the deceased that bail conditions had been placed on the accused which also applied to her as there was to be no contact between them. On the occasion he arrested the accused he said he regarded the accused’s level of intoxication as high to the extent that he did not think he would be able to understand questions.
Police officer Watkins gave evidence of the photographs which he took on that occasion.
Later, on 2 April 2011, police officer Hegarty attended premises at Hayborough near Victor Harbor on the report of the owner of the premises that someone had broken in. The owner was in fact the father of the accused. At the house the police officer found the deceased sitting on a bed crying. She did not have any clothes on at the time. The window was open and in the room the officer found male clothing and some identification belonging to the accused. This was a time when there were bail conditions applicable for the accused not to be in contact with the deceased. Bail had been granted on 21 February 2011 after the alleged assault on 18 February 2011.
Later police officer Brown received a phone call from the accused on 5 April 2011. He wanted to make arrangements to collect his clothing which was being held at the Victor Harbor Police Station. On 5 April 2011 the accused was arrested for his breach of bail on 2 April 2011 at Hayborough. On this occasion the accused spent three days in custody before again being granted bail by a magistrate on 8 April 2011. His bail conditions, amongst others, were:
2.I will not have or make contact direct or indirect with Katherine Towner.
5.Not to attend at any place of work or residence that Katherine Towner may work or reside.
After the 18 February 2011 incident the deceased moved from Strathalbyn to live at Victor Harbor. The deceased lived from that time until her death at 54 Seaview Road, Victor Harbor. She lived there with friends Peter Rhodes and Sean Jones. She also had her son with her. Mr Rhodes said that they moved in about two months before Easter. He observed injuries, being black eyes and bruises. He said she had bruises all over. Mr Rhodes said he had seen the deceased with the accused prior to her coming to live at that address. He said on the first time she also had black eyes and bruises. He said it was about a month between the two incidents. The last time he saw her was on the Thursday of the Easter weekend, he said it was about 5 o’clock in the afternoon when she said she was going to see some friends.
Mr Jones confirmed that he observed injuries on the deceased when she moved in to stay with he and Mr Rhodes. He also saw her for the last time on the Thursday of the Easter weekend.
Another witness Kelly Lunnay also lived in the same general area at Port Elliott. She had known the deceased since she was 16. She said it would have been towards the end of the week and on the Thursday prior to Easter. She said it was around lunch time and she saw the deceased outside the house in Seaview Road. She said she was pacing out the front, holding her hair. She said she looked pretty distressed. She had her hands on her head.
4. Other background evidence
David Brumfield lived with his partner Kelly Stevens at 31 South Terrace, Strathalbyn. At the time of the deceased’s death, Grantley Hull and the accused were also living there. Mr Brumfield met the accused about four years ago. At some stage he became aware that the accused was in a relationship with the deceased. The accused and Mr Brumfield worked together at the Strathalbyn meatworks. The deceased used to pick up the accused from work. Mr Brumfield did not notice any trouble between the two of them.
The accused commenced living at South Terrace when he apparently got bail with the South Terrace address nominated as his place of residence. Mr Brumfield dated this to early in 2011.The actual date on which bail was granted to the accused was 7 January 2011. The accused then occupied a bedroom of his own at the premises at South Terrace. Mr Brumfield said that he had seen the accused range from sober to very drunk. He had never seen any violence between the accused and the deceased but did observe arguments between them. On one particular occasion the deceased stayed the night at South Terrace with the accused. Mr Brumfield said he could not hear what they were actually saying but they argued from late at night until early the next morning. It was loud enough to keep him awake.
The deceased would come over to South Terrace on the weekend and they would then usually go off together on the weekend. Mr Brumfield did not know exactly where they went. He was told that they were going camping. On Thursday 21 April 2011 Mr Brumfield offered to loan the accused blankets, a mattress, a BBQ plate and some food. The accused did not tell him where he was going.
He estimates that the accused and the deceased left the house to go camping later on Thursday evening, probably around 10.00 pm or 11.00 pm. They left together in the deceased’s blue car.
As a result of some money which went missing out of his brother’s wallet that evening, Mr Brumfield attempted to send the accused text messages. He in fact sent him several text messages over that Easter weekend.
He recalled that the accused rang him and he said he rang the accused back. He was not sure whether it was the Saturday or the Sunday of the Easter weekend He said that he spoke to the accused for a couple of minutes but then handed the phone over to his partner Kelly because he himself was intoxicated.
He recalled the conversation with the accused even though he was intoxicated. He said that the accused told him that when he woke up in the morning that the deceased’s lips were blue and that he rang for an ambulance. Mr Brumfield told him to check for a pulse on the neck or the arm. It was at that stage that he handed the phone over to his partner Kelly.
The next time he had contact with the accused was when he arrived back at South Terrace on Tuesday 26 April, that is, the Tuesday after the Easter Monday. When the accused arrived Mr Brumfield observed that he had been drinking. He asked where the car was and the accused said it was smashed into a tree near Mitchies. He asked the accused where his stuff was and he said it was still in the car. He then asked where the deceased was and the accused told him that she had walked home a couple of days ago and that she was in a bit of a bad way.
As a result of the information received Mr Brumfield, Mr Hull and another friend Trevor Cutting drove out to where the accused had said the car was. They found the car without any difficulty from the description given to them by the accused. When they saw the car they saw a tarpaulin hanging over the left side of the vehicle. They pulled the tarpaulin back and noticed a heap of flies outside and a smell coming from the car.
They observed a quilt and Mr Brumfield lifted it up and realised that there was a body underneath. Mr Cutting rang the police.
When cross-examined about the conversation with the accused on the Tuesday Mr Brumfield said that the accused said of the car, “It’s near Mitchies scrub”. He said he thinks it was the second road on the right past Mitchies. He said he was making sort of sense.
He said that he had seen the accused who was asleep on the front porch of 31 South Terrace like that on more than one occasion. He described him as a heavy drinker.
He was also cross-examined on the basis of a statement he had made saying he thought that the deceased was a bit crazy. He said he meant by this that when she was waiting in the car she revved the engine and did donuts in the car park. He only saw her do that once. She did pull up in the driveway at South Terrace and revved the car engine. He repeated his evidence about the altercation when the deceased stayed at South Terrace one night. He mentioned another occasion when they argued near the carport of the house at South Terrace. Mr Brumfield actually told the accused that he did not want the deceased staying at the house any more overnight.
He said that when he saw the accused on the Tuesday his jumper was ripped at the neck, he noticed scratches on the right side of his face and a deeper cut around the middle of his neck.
He repeated that when the accused drank he usually drank to excess. Sometimes he was unable to walk properly. He looked at a video taken at the time of the arrest of the accused and said that he had seen him drunker than that. He said he could not have a conversation with him when he was like that. He said that now and again he saw the deceased smoke cannabis.
In relation to the telephone call from the accused earlier on the weekend, he said he did not have a very good memory of the conversation but he could remember the accused saying that when he woke up in the morning that the deceased’s lips were blue. He said he remembered that clearly. He also said that the accused said he had rung for an ambulance. He could not remember in cross-examination whether he rang the accused or the accused rang him. In cross-examination it was put to Mr Brumfield that on 24 April 2011 between 11.20 am and 11.36 am there were seven mum and dad phone calls to his phone. These are effectively reverse charge calls. Mr Brumfield said he only remembered one of those phone calls. Between 6.49 am and 11.40 am on 24 April 2011 there were in fact five unanswered mum and dad phone calls from the accused to Mr Brumfield.
MrBrumfield’s partner Kelly Stevens said that she saw the accused maybe twice a week when he and David Brumfield were working together at the meatworks and after that maybe once a week. She met the deceased at some stage. She observed at first that they were a “sweet couple”, that she never saw them argue but then she said that changed. She said they then were always arguing.
All of the arguments which she heard happened at 31 South Terrace. The arguments would last for an hour to an hour and a half. They would call each other insulting names. She remembered one particular occasion when they were arguing near the carport. She said on that occasion they were calling each other names. She said that that argument went on for about an hour or an hour and a half.

Their Honours then refer to the judgment of Barwick CJ in R v O’Connor (1980) 146 CLR 64 at [75] of their reasons:
[75]The common law was considered by the High Court in some detail in The Queen v O’Connor (1980) 146 CLR 64. In our respectful opinion Barwick CJ accurately summarised the position in the following passage at 87-88:
In my opinion, evidence of the state of the body and mind of an accused tendered to assist in raising a doubt as to the voluntary character of the physical act involved in the crime charged is admissible on the trial of an accused for any criminal offence, whether an offence at common law or by statute. Further, in my opinion, such evidence tendered to raise a doubt as to the actual intention with which the physical act involved in the crime charged, if done, was done is admissible on the trial of an accused for any offence, whether at common law or by statute, with the exception of such statutory offences as do not require the existence of an actual intent, the so-called absolute offences.
As I earlier indicated, however, the jury needs careful and special instruction. If the evidence, if accepted, is not such as to be capable of raising a doubt as to either of the basic elements, voluntariness or actual intent, there being no other material to suggest a lack of voluntariness or actual intent, that evidence can be withdrawn from the jury's consideration. It will have had no more than a tendency to establish that though the accused acted voluntarily and with the requisite intent, he was influenced in what he did by a state of insobriety. They should be told that if the evidence does not raise in their minds a doubt as to voluntariness or actual intent they may put that evidence out of their minds in considering the accused's guilt or innocence. But if the evidence is capable of raising a doubt either as to voluntariness or the existence of an actual intent, the jury should be told that if that evidence raises in their minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds and to satisfy them beyond reasonable doubt that the accused voluntarily did the act with which he is charged and that he did so with the actual intent appropriate to the crime charged. They should be instructed as to the meaning and scope of voluntariness and as to the precise intent which the crime charged requires. It would be proper in these cases to tell a jury that the fact that a man does not later remember what he did does not necessarily indicate that his will did not go with what he did do or that he did not have the necessary intent.
Reference was also made at [76] to King CJ in The Queen v Tucker (1984) 36 SASR 135 as follows:
[76]Another helpful summary of the position can be found in the reasons of King CJ in The Queen v Tucker (1984) 36 SASR 135. He said at 138-139:
… A person is, it is true, criminally responsible only for actions which are accompanied by the will. It is also true that, albeit in rare cases, the ingestion of alcohol may deprive a person of the use of his will with the consequence that his actions do not result from the exercise of the will. Criminal liability requires, however, in the great majority of crimes, not only that the physical act constituting the actus reus be voluntary but also that it be accompanied by a basic intention to do the forbidden act. In the case of many crimes, moreover, there must be a further specific intent. The existence of intent, either basic or specific, in the sense in which I have used those words, implies the existence of volition. The concept of an intended but unwilled act is a psychological, and once the terms are properly understood, a logical self-contradiction. In trials of charges of which intent, either basic or specific, is an ingredient, where there is evidence of intoxication, it is necessary for the judge to direct the jury to have regard to the effect of intoxication on the accused's mind in determining whether he possessed the requisite intent. If intent is proved, voluntariness is proved ipso facto. If intent is not proved, a verdict of not guilty results irrespective of voluntariness. In all such cases a direction as to the effect of alcohol on the existence of volition is unnecessary and could well confuse the jury. Only in the rare case in which there can be criminal liability for an unintended act or omission, and there is evidence of drunkenness to a degree which could raise a doubt as to whether act was accompanied by will, is it necessary for a trial judge to direct as to the effect of intoxication on the voluntary character of the act.
In that passage King CJ distinguishes between voluntariness, which will rarely arise, what he calls “a basic intention” to do a forbidden act and then “a further specific intent”.
The common law position has been modified by s 268. In relation to murder, as explained in Childs, there is the “basic intention”, that is, that the accused intended to harm the deceased, or whether for instance it could have been accidental. The question is whether the acts were the result of the exercise of the accused’s will.
Doyle CJ and Vanstone J said in Childs at [80]:
[80]… Section 268 of the Act has not rendered the common law principles referred to above irrelevant. Its effect is to modify them. For crimes of specific intent, that modification, found in s 268(1), is extremely limited. The principal work which s 268 does is found in s 268(2). The ambit of s 268(2) is limited by s 268(3) which effectively excludes offences of specific intent such as murder and causing serious harm with intent to cause serious harm (s 23 of the Act).
However, s 268(2) operates on offences of basic intent which include, among others, the automatic alternative to a charge of murder, being manslaughter. Now, where the crime charged, or the available alternative, is an offence of basic intent the accused can be found guilty of that offence even though, under common law principles, the accused might not have been found guilty because evidence of intoxication might have left a reasonable doubt as to the voluntariness of the act or the intention accompanying it. Thus, where the accused is charged with murder, the effect of s 268 will be that although the accused is acquitted of the principal charge, the accused may be convicted of manslaughter notwithstanding the impact of intoxication upon volition or intention.
Having found that the accused by his act or acts caused the death of the deceased I have to consider whether there is any basis on which I can entertain a reasonable doubt as to the voluntariness of the acts of the accused. I would not have left that question to a jury. There is no evidence as to the degree of intoxication at the relevant time, but simply an inference that he had been drinking and was to some, but to an unknown extent intoxicated.
I therefore come back to the evidence of intoxication. Can I be satisfied beyond reasonable doubt on the evidence available, and any reasonable inferences from that evidence, that having regard to that evidence the accused did form the necessary intent for murder?
For the reasons I have already given there is a lack of evidence to make any finding about the actual level of intoxication at or about the time the accused dealt the blows to the deceased. Mr Vadasz asked me to infer that on the whole of the evidence relating to the accused’s drinking habits I could safely draw an inference that he was affected to the extent that there is a reasonable possibility that he did not intend to either kill or to cause grievous bodily harm even though he may have intended some harm. I am not prepared to do so. I could equally infer that at 11.40 am on Sunday the accused, although affected by alcohol according to one witness, could still carry on a basic conversation in his apparent endeavours to seek help. The accused also was capable of texting the following message at 12.33 pm on Sunday to Mr Brumfield, “I me not joking please call back”.
As I have pointed out earlier, the questions asked of the expert witness Dr Irvine were all based on the assumption of a blood alcohol reading of something in the area of 0.3%. This was the calculation made by Dr Irvine for a reading at about lunch time on Tuesday 26 April 2011. It does not assist at all with any reading of the accused at any time earlier in the weekend and therefore as to his level of intoxication at any earlier time.
I am not prepared to infer that the accused was in the same or a similar state of intoxication, as observed on the video, at the time he inflicted the injuries on the deceased. If the accused was affected to about the level of 0.16% at the time he inflicted the injuries my conclusion is that he would not have manifested the signs of an average person with that reading. His drinking history and observations made of him show that he had a very high tolerance for large amounts of alcohol. Such a degree of intoxication as proposed by Mr Vadasz would not impact on any murderous intent he may have formed.
Dr Irvine was specifically asked to consider the effects of a 0.14% alcohol reading on a 90 kilogram male of solid stature who was a seasoned or heavy drinker. Dr Irvine’s conclusion was that such a person would probably have displayed much less of the behaviours than the deceased with a similar alcohol level and would have been able to hold his alcohol a lot better.
Because of the lack of any evidence as to the drinking pattern of the accused and the amount that the accused had consumed up to the time he delivered the blows to the deceased, but assuming that he must have consumed some alcohol at least to the extent of slurring his words in the 11.40 am call on Sunday morning, I am not able to conclude, having regard to the lack of specific evidence and bearing in mind the opinion of Dr Irvine, that the level of intoxication of the accused was such as to allow for the reasonable possibility that he had neither the intention to kill nor cause grievous bodily harm when he struck the deceased.
In addition to the evidence of Kelly Stevens regarding the accused’s slurring of words there is a reference by Mr McAnaney who saw the accused standing by the vehicle on Saturday morning at about 9.00 am. Mr McAnaney described the accused as having the appearance of blank, glazed-looking eyes when he saw him and commented that it looked like he had had a hard night. I cannot say that such an observation assists in determining the accused’s sobriety at that time, nor whether that was before or after the death of the deceased.
Defence counsel specifically requested, pursuant to s 269(1) of the Criminal Law Consolidation Act that I should direct myself on the question of whether the accused’s consciousness was, or may have been, impaired by intoxication to the point of criminal irresponsibility. I have already indicated that having directed myself accordingly, I am unable to draw the inference.
12. Findings beyond reasonable doubt
I make the following findings beyond reasonable doubt.
12.1.     Pre-Easter 2011
1.The deceased and the accused had been in a relationship for approximately 18 months prior to Easter 2011.
2.The relationship was often volatile and included long arguments which became very personal. There was a nasty and personal argument just before they left on Thursday for the Easter weekend.
3.During that time the accused assaulted the deceased on at least two occasions, being 26 August 2010 and 18 February 2011, when she required medical treatment for the injuries received. Both incidents were reported to the police.
4.The fracture to the hyoid bone observed post mortem by Dr Langlois was caused by the accused on 18 February 2011. The evidence of the bus driver Mr Bennier and the general practitioner Dr Fowler supports such a finding. The time since the fracture and the degree of healing observed by Dr Langlois likewise supports such a finding.
5.The accused was taken into custody following the 26 August 2010 assault. On that occasion he spent 134 days in custody. The accused was arrested on 18 February 2011 for the second assault.
6.On both occasions when the deceased went to the police and complained of the injuries she had sustained the police took photographs of her injuries. These photographs were tendered. The photographs taken on 27 August 2010, being exhibit P17, were taken by Gregory Turner from the South Australian Police Forensic Services Branch of SAPOL. The photographs taken on 18 February 2011, being exhibit P21, were taken by Brian Watkins from the Forensic Services Branch.
7.The injuries shown in the photographs and as described by two different medical practitioners were caused by the accused.
8.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.
9.The accused also regularly breached his bail conditions by contacting the deceased either by text messages and/or by telephone between 18 February 2011 and Easter 2011.
10.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.
11.The accused was a very heavy drinker and drank on occasions to the point of passing out.
12.Despite him being a heavy drinker he held down a regular job at Strath Pastoral Pty Ltd from 11 June 2008 to 10 June 2010 where he was a slaughterman.
13.The deceased, prior to meeting the accused, was only a very occasional drinker but after meeting him she became a heavier drinker and was seen drunk on a few occasions.
12.2      Easter weekend 2011
14.At some time, probably between 8.30 pm and 10.00 pm on Thursday 21 April 2011, the accused and the deceased left 31 South Terrace, Strathalbyn to go camping for the weekend. They left in the deceased’s car.
15.The accused had consumed some liquor before leaving but was not drunk.
16.They travelled to an area five or six kilometres from Strathalbyn and at some stage on either Thursday night or Friday parked off Lowana Road on a verge and near a farm boundary fence.
17.The deceased’s car was found on Tuesday in the same position it had been observed by local farmers from early Friday morning.
18.From evidence in the car and nearby, five empty cans of bourbon and cola and two empty wine bladders were found. One was from a cask of four litres and the other two litres.
19.The deceased had consumed alcohol. Her blood alcohol reading was 0.14%. It was therefore slightly higher at the time of her death.
20.The car and the accused were seen by local farmers at 8.00 am or 9.00 am and again at 5.00 pm on Friday and then at 9.00 am on Saturday. The accused was out of the car when observed at 5.00 pm on Friday and 9.00 am on Saturday. The deceased was not observed on these occasions.
21.The accused spoke to Mr Brumfield at 11.40 am on Sunday 24 April 2011 and reported that the lips of the deceased were blue and that she had no pulse.
22.The accused at the same time advised that he had called an ambulance.
23.No call to the ambulance was ever made by the accused.
24.The deceased died sometime before the phone call at 11.40 am took place.
25.The deceased’s body was found by Mr Brumfield, Mr Cutting and Mr Hull at about lunch time Tuesday 26 April 2011.
26.The body was lying on a mattress spread over the front two seats of the vehicle. The seats had been reclined.
27.The body was covered by a quilt and a denim jacket had been placed over the head of the deceased.
28.The body had begun to decompose but there was no evidence of flies.
29.The absence of flies meant that the body was covered and in the vehicle between the time of death and when it was discovered.
30.The police and the pathologist Dr Langlois examined the body in the position where it was found and photographs were taken of the body in that position.
12.3.     Injuries sustained
31.The deceased sustained a large number of injuries prior to her death. These are catalogued by Dr Langlois in exhibit P31.
32.The injuries were caused by the application of blunt force trauma.
33.The amount of force applied to inflict the various injuries varied between mild to moderate to severe.
34.The injuries could not have been caused by a single incident.
35.Each of the injuries in the schedule P31 was inflicted by the accused, with the possible exception of the injury to the right index finger.
36.The deceased died as a result of the injuries inflicted by the accused.
13.    Consideration
I start with the background relationship. I use it not as showing any propensity by the accused to commit the crime charged. I use it to establish the nature of the relationship between the accused and the deceased. That includes arguments and disputes in what was a volatile and dysfunctional relationship. It includes violence by the accused towards the deceased.
I use the evidence of the relationship to consider whether the events which occurred on the Easter weekend 2011 were the result of an accident. I use the pre-existing history of the relationship difficulties between the accused and the deceased as an important part of the circumstantial case against the accused. I take into account that in all of their past disagreements there is no evidence of the accused ever sustaining injuries whereas there is evidence that the deceased did sustain injuries. I use it to explain how the deceased and the accused went away together that weekend when they both breached bail conditions imposed on the accused.
The history of the relationship and the bail conditions imposed on the accused on 7 January 2011, 21 February 2011 and 8 April 2011, namely, that the accused was not to have, or make contact, direct or indirect, with Katherine Towner, is used to explain how they came to spend a weekend in a car in the scrub surrounding the township of Strathalbyn with no vehicle movement from at least the Friday of the weekend. This assists me to exclude the involvement of any third party.
The other items of circumstantial evidence include the number and pattern of telephone calls and text messages made over the weekend by the accused or to the accused. In particular an important item of circumstantial evidence is the telephone call at 11.40 am on the Sunday morning between the accused and David Brumfield and Kelly Stevens.
Again as part of the circumstantial case I consider the overall conduct of the accused regarding a suggested call to the ambulance, the suggestion that the vehicle had been involved in an accident and the fact that the accused had said that the deceased walked home. I find that the overall conduct of the accused from his actions and statements were attempts to distance himself from the circumstances surrounding the death of the deceased.
I further take into account the absence of any significant injury to the accused and the way in which the body of the deceased was found and her state of clothing and the way she was partly dressed and including the damage to her clothing.
I take into account the DNA evidence. In my view of itself it is equally consistent with the accused having undressed the deceased as distinct from the prosecutor’s suggestion of an attempt to re-dress her. I cannot make anything of itself of the fact of the positioning of a soiled sanitary pad tucked into the underpants of the deceased, but not in the correct position, when the deceased was not menstruating. It is, however, part of the circumstantial case.

I take into account the accused’s failure to seek any help over some days as an important part of the circumstantial case as being inconsistent with an innocent explanation.
The events which I have related above by themselves may not point necessarily to an intention to kill or to cause grievous bodily harm to the exclusion of any other explanation. However, the significance of that conduct is as part of the whole circumstantial case when considered with all the other evidence. The other evidence is the relationship evidence already set out in detail earlier in these reasons and the nature and extent of the injuries sustained by the deceased. I will again refer to the significance of the injuries shortly.
There is no evidence to support the fact that the act or acts of the accused were involuntary by virtue of his intoxication. I am not prepared to infer a gross state of intoxication, sufficient to satisfy the requirements of s 268 of the CLCA, on the basis solely of the deceased’s alcohol history and his level of intoxication when arrested on Tuesday afternoon. There is no evidence as to his level of intoxication at the time shortly prior to the death of the deceased.
The accused was slurring his words in the telephone conversation at 11.40 am on the Sunday but nevertheless gave a description of the deceased and advised that he had checked for a pulse. Likewise, even when heavily intoxicated at the time of his arrest, he was able to give an accurate description of where the car could be found in the scrub area out of Strathalbyn. I take into account generally the consumption of liquor but cannot find any particular level as negating any intention by the accused to cause grievous bodily harm. With a level of 0.26% at the hospital he was co-ordinated.
The accused did not suffer from a complete loss of memory as he indicated to the medical staff. He was able to give detail of what alcohol he had consumed and what pills he had taken. He also gave a false account of what happened about an accident and made an inquiry about the whereabouts of the deceased.
I will now deal with the way in which I have considered the injuries sustained by the deceased. As I have explained, Dr Langlois prepared a list of injuries which has been included earlier in these reasons. I find that he only included those injuries for which he had positive evidence that they occurred prior to the time of death. In other words he excluded any post mortem artefacts.
I will consider the injuries having regard to the defence hypothesis which I have earlier referred to as the “falling over backwards scenario”.
It is not a reasonable possibility in my view that the three injuries to the head could have been caused in that scenario. Two of them are near the ears on each side of the face and one is on the forehead of the deceased. Dr Langlois excluded the possibility of the forehead bruising being caused by what is known as a contrecoup injury, in other words an impact at the rear but bruising to the front. He excluded this because the internal examination of the brain showed no contusion of the brain. So there is an absence of external head injury to the rear from what must have been, on the defence hypothesis, a significantly traumatic fall, and there is no internal injury on examination.
In addition Dr Langlois’ evidence was that the area around the ears on both sides where the bruising was shown is an area which would usually be protected in a fall such as the one envisaged in the defence scenario. Clearly both could not have been caused in the same fall. Different impacts were required to produce those injuries. The injuries to the head involved injuries in three different planes.
In addition there was an injury to the jaw, again inconsistent with a fall backwards. Further, there were injuries to the front of the neck consistent with a strangling exercise but inconsistent with the falling over backwards scenario.
The injuries to the ribs and the associated bruising could have been caused by a fall backwards as envisaged but one of the injuries, that is, the haemorrhage in the area between the 8^th to 10^th ribs, could not. It must have been caused by a different incident.
The split liver could possibly have been caused by a fall backwards but the force required was extreme. It was a 7 centimetre tear the result of which was the loss of one litre of blood. Dr Langlois likened the force required to tear the liver to this extent to the equivalent of falling down a set of stairs. That is not quite the same as falling backwards in the manner envisaged. Nevertheless it is still of itself a possibility.
In relation to the back injuries, the injury to both the upper right shoulder blade and the area between the shoulder blades would not usually be caused by the falling backwards scenario.
In relation to the extensive area of bruising of 17 centimetres by 3 centimetres across the lower back in a broad band, it is in my view inconsistent with the falling over backwards scenario. I say this because of the evidence of Dr Langlois and the commonsense of the position. Dr Langlois explained that with the deceased falling backwards with her arms stretched forwards around the body of the accused, the bruising cannot be explained because of the “associated linear band of bruising going all the way across the left and right sides from the lower chest to the top of the pelvis because if we are saying that the hands are outstretched taking the shoulder-blades forward and exposing the spine at impact then the body is curved from left to right such that one would not expect a complete band of bruising across the back on a flat surface”. Dr Langlois was then asked about the possibilities if it was not a flat surface. In relation to the possibility that the fall was on an undulating surface Dr Langlois said, “I was thinking in terms perhaps like a ploughed field with furrows, so a mound of earth and a ditch, and if the raised area was something in the order of 17 cm wide, which is the width of this bruising … that could produce I think this type of bruising”.
Dr Langlois thought that the injury would require something “more like a stomp or a person jumping onto a person lying down to achieve sufficient compression”, to cause the extensive bruising observed.
When being asked about all these potential possibilities Dr Langlois made it clear that he gave no consideration to the mechanism of how the fall occurred but merely accepted for the purpose of his answers that such a fall had occurred. It was his view, and I agree, that this could not be the subject of any expert evidence but was a matter of commonsense.
I thought Dr Langlois was stretching an acceptance of a possible scenario to the limit in his proper concession that effectively anything was possible.
I have used Dr Langlois’ expert opinion which I have found very helpful but I have also used my own judgment as the trier of facts in relation to the defence hypothesis.
The defence hypothesis is not a reasonable possibility. It is not a reasonable possibility that in an isolated spot the deceased would attempt to tackle the man, who had previously beaten her, by jumping on his back during a drunken brawl.
There is no issue of self-defence raised on the evidence.
Even allowing for some struggle there is no reasonable possibility that the scenario postulated by the defence, namely, the falling over backwards scenario, would have caused all the injuries suffered by the deceased.
There is no reasonable possibility, when all the injuries are considered together, that the deceased sustained a ruptured liver with the consequent loss of blood as a result of the falling over backwards scenario. The absence of any laceration or internal bruising to the rear of the deceased’s head is significant. The postulated scenario cannot explain the three areas of injury to both sides and the front of the head. That scenario cannot explain the bruising and injury around the area of the deceased’s voice box or the injury to the jaw or haemorrhage between the ribs.
Death was caused by a combination of severe injuries including the head injuries, the rib fractures and the lacerated liver. Of those the most significant was the lacerated liver with the loss of one litre of blood but the others nevertheless contributed.
I conclude therefore that the whole of the circumstantial case presented by the prosecution is compelling. There is no reasonable possibility, consistent with the innocence of the accused, of any intention other than an intention to cause, at the very least, grievous bodily harm. I find beyond reasonable doubt that the accused bashed the deceased and that all the injuries contained in Dr Langlois’ summary were inflicted by the accused during that bashing.
The hypothesis of a fight between a man of 90 kilograms who has previously assaulted the woman weighing 54 kilograms, with a lack of injuries sustained by the man, other than minor scratches, combined with the need for a very sophisticated and theoretical choreographed scenario of the male falling on top of the female with the bodies aligned perfectly and causing the major injuries is in my view bordering on fanciful. It is certainly not a reasonable possibility. It is quite inconsistent with the deceased’s behaviour in the past including her hurrying from the accused with her son on the morning of 18 February 2011 when she escaped onto the school bus.
14. Conclusions
I now return to where I started with my conclusions on the specific elements required to be proved beyond reasonable doubt before the accused can be found guilty of murder.
·I am satisfied beyond reasonable doubt that the act or acts of the accused caused the death of Ms Towner. There was no-one else involved in inflicting the injuries upon her. The injuries did not occur by misadventure or accident.
·The acts of the accused leading to the injuries causing her death were conscious and voluntary and were the result of the exercise of the accused’s will. The issue of intoxication is not relevant because there is no satisfactory evidence to support the proposition that the accused was so grossly intoxicated at the time he inflicted the injuries on the deceased that his responsibility should be diminished.
·On the whole of the circumstantial case and having regard to the nature and extent of the injuries, as I have previously described them, I find beyond reasonable doubt that the accused intended at the time he inflicted those injuries at the very least to cause grievous bodily harm. By that I mean really serious bodily harm. I find beyond reasonable doubt that the intention, to cause at least grievous bodily harm, existed at the time the accused inflicted the injuries on the deceased, and was not affected by his intoxication.
·I find that there was no lawful justification or excuse for the accused’s actions. In particular there is no issue of self-defence raised on the evidence or any inferences to be drawn from the evidence. Insofar as it may have been inferentially raised by the defence scenario which I have called the “falling over backwards” scenario I am able to say that there is simply no reasonable possibility on the evidence and available inferences that the accused was acting in self-defence to actions taken by the deceased.
15. Alternative to murder
15.1 Reckless murder
I agree with the submission made by Mr Vadasz that this is not a case of reckless murder. I do not consider that murder by recklessness genuinely arises on the evidence in this matter. On the facts of this matter I would not have left reckless murder to the jury.
15.2 Manslaughter by unlawful and dangerous act
I have already dealt with the evidence of the relevant conduct of the accused at [318] to [342] in this context. With that evidence of his conduct by itself there could have been a potential finding of manslaughter by an unlawful and dangerous act. However, when that evidence is combined with the other aspects of the circumstantial case as I have described them it leaves no room for this alternative verdict. I have found beyond reasonable doubt that the accused at the time of the act or acts inflicting the injuries on the deceased had, at the very least, an intention to cause grievous bodily harm.
There is no evidence or inference available to raise self-defence or any other lawful justification for the killing of the deceased.
I have specifically considered whether there is any reasonable possibility that the accused only intended to harm or seriously harm the deceased and not to cause grievous bodily harm. I have found that the accused assaulted the deceased on 26 August 2010 and 18 February 2011. I find that on those occasions that harm did not amount to grievous bodily harm, in the sense of really serious harm (my underlining), although it was probably serious harm. The previous injuries were depicted in the photographs tendered and described by the doctors, family members, police officers and other witnesses I have referred to earlier. The injuries inflicted by the accused on this occasion, as I have described them, and explained by Dr Langlois, were in my opinion at a significantly higher level than the previous injuries caused by the accused. I find beyond reasonable doubt that on the Easter weekend 2011 the accused intended to cause grievous bodily harm. Therefore manslaughter by an unlawful and dangerous act is not in my view a reasonable possibility.
In this regard I have found the comments of White J, with whom King CJ and O’Loughlin J agreed, in The Queen v Perks (1986) 41 SASR 335 at 345-346 to be helpful in my analysis White J said:
… However, where the particular assault is of a less obviously dangerous nature, for example, performed with the hands in the form of blows to the face or temporary pressure to the neck, the distinction between an intention to do “grievous bodily harm” and to do “serious bodily harm” can become significant and less of a semantic difference. ...
…
When the cause of death is strangulation and the accused person has previously indulged in physical violence and struggle without causing grievous bodily harm, the specific intention with which the pressure was applied to the neck on the particular occasion resulting in death can be at least ambiguous, especially where the mind and will may be clouded by intoxication. The jury should be directed that the specific intention must be either to kill or to cause “grievous bodily harm”, and not just “serious bodily harm”, in such circumstances.
I find that on this occasion the accused intended to cause injuries of a much greater degree than when he inflicted the injuries on 26 August 2010 and 18 February 2011. He intended on this occasion at the time he inflicted those injuries to cause at least grievous bodily harm.
Having regard to all the matters of the circumstantial case including the nature and extent of the injuries, and allowing for some degree of intoxication, I cannot see that there is any reasonable possibility of an intention less than one to cause grievous bodily harm.
15.3 Criminal negligence
In view of the findings I have made it is not necessary to consider this final alternative suggested by the prosecution. It is simply not a relevant consideration on the reasoning I have adopted in coming to my conclusions.
16. Verdict
I find the accused guilty of murder.