R v Glenn Anthony Robbins R v Gregory Allan Hill (Appellant) R v Sean Michael Kelly (Appellant) R v Samantha Ann Howell (Appellant) Nos. SCCRM 94/424, SCCRM 94/427, SCCRM 94/428, SCCRM 94/429, SCCRM 94/431 Judgment..

[1994] SASC 4879

COURT IN THE COURT OF CRIMINAL APPEAL SOUTH AUSTRALIA MILLHOUSE(1), PRIOR(2) and DUGGAN(2) JJ

CWDS
Appeal and new trial - appeal - general principles interference with discretion of court below - Appeal by four appellants against convictions, - two convicted of murder and two of being accessories after the fact to a felony. - Trial judge refused application at close of Crown case of no case to answer. Held: No evidence to prove beyond reasonable doubt cause of death: not possible to shew that actions of either appellant found guilty of murder a "substantial cause" of the victim's death. Trial judge in error in not granting application.

HRNG ADELAIDE, 22 November 1994 #DATE 9:12:1994

Counsel for appellant Robbins:     Mr D Peek

Solicitors for appellant Robbins: Elizabeth Griffith

Counsel for appellant Hill:         Mr N Vadasz

Solicitors for appellant Hill:     Nicholas Vadasz

Counsel for appellant Kelly:        Mr B Martin QC with Mr J Lister

Solicitors for appellant Kelly:     Jon Lister

Counsel for appellant Howell:     Mr R Bleechmore

Solicitors for appellant Howell:    Ralph Bleechmore

Counsel for respondent:             Ms W Abraham with Mr A Moffa

Solicitors for respondent:         DPP (SA)

ORDER
Appeals allowed: verdicts of not guilty substituted in each of each appellant.

JUDGE1 MILLHOUSE J At their joint trial two of the appellants, Robbins and Kelly, were convicted of murder and the other two, Hill and Howell of being accessories after the fact to a felony.

2. This is an outline of what happened.

3. On Thursday 10 October 1991 the appellants Robbins and his de facto, Howell, had a party at their house at Renmark. It looks to have been a rough affair with plenty of alcohol and some drugs. Besides the host and hostess the other two appellants, the victim, Brown, and others were there.

4. The party started in the afternoon. About 10 o'clock in the evening Brown and Howell were fighting inside the house. Another guest, Black, saw Howell face down on the floor with Brown kneeling beside her, his fingers entwined in her hair, trying to push her face into broken glass. Black tried to prise Brown's fingers out of Howell's hair. Hill came in and hit Brown once or twice (accounts vary) across the back of the head or neck with a piece of wood. One blow was very hard indeed: Black, who had worked in an abattoirs, said it was "hard enough to kill a cow".

5. The blow made Brown unconscious: he bled from the nose and ears: his face went blue. Two people moved him to a couch in the lounge room, leaving him there on his back, making gurgling noises.

6. At that time Robbins and Kelly were outside in the yard with a man, Duncan, standing around the fire. Duncan was the vital witness for the Crown as to events. He said in examination-in-chief that, separately, first Robbins and after he returned, Kelly went inside the house and Duncan heard groans while each was in there. Robbins had said something about "finishing Tigger (Brown) off". In cross examination Duncan said he did not know when he had heard the groans and did not really know if either Robbins or Kelly actually went inside - but each had left the fire where he was.

7. Brown died.

8. The next morning Robbins and Kelly took the body and buried it. Several days later they dug it up again and buried it a long way further from the town. The body was not discovered until March 1994: by then all body tissue had disappeared. Dr Colin Manock, the forensic pathologist, who made a post mortem, had only the bones to examine. Dr Manock gave evidence at the trial and his was the only evidence as to the cause of death.

9. About 12 months after the incident the police found blood splattered on the walls and ceiling of a bedroom in the house: an attempt had been made to clean up the blood. That there was blood on the walls prompted Miss Wendy Abraham, who led for the respondent on the appeal, to argue that the deceased must have been well enough to move himself from the sofa in the lounge room into the bedroom before he died. Miss Abraham argued from this that either Robbins or Kelly or both of them, engaged in a joint enterprise, hit him again in the bedroom: it was open to the jury to conclude beyond reasonable doubt that their blows were a substantial cause of Brown's death.

10. The trial lasted from 7 September to 5 October.

11. There are many grounds of appeal but the whole appeal may be decided on the first ground argued by Mr Brian Martin QC who led for Kelly both at trial and before us. The ground is:-
    "7. The Learned Trial Judge erred in law in ruling at the
    conclusion of the Crown case that the Crown had established
    a case to answer in respect of the appellant ....".

12. At the close of the Crown case the learned trial judge, Bollen J, was asked to find that there was no case to answer. After argument he refused and the trial went on.

13. The appellants argued before Bollen J, as they did before us, that there was no evidence that the actions of either Robbins or of Kelly were a substantial cause of Brown's death.

14. The argument is based on Dr Manock's opinion. Before I come to his opinion I should mention that Dr Manock said there was evidence of four blows to the victim's head. He could not say, naturally, who struck which or in what order they were delivered.

15. At trial the learned judge and the parties accepted that for Robbins and Kelly to be convicted the jury must find beyond reasonable doubt that the actions of Robbins and Kelly, either individually or in concert, were a substantial cause of Brown's death. Although, during the hearing of the appeal there was discussion as to whether "substantial cause" is the test, I think it is. There is authority to that effect. The Crown did not argue to the contrary, the contention having been put forward by Mr Martin.

16. I refer to R v Hallett ((1969) SASR 141). The facts were that the victim had been assaulted and injured by the appellant at a beach: the appellant left the victim at or near the water-line: the water came up to the unconscious victim who drowned. Bray CJ, Bright and Mitchell JJ said (at 150):-
    "His Honour might have directed the jury in terms of the
    passage from R. v. Bristow, citing R. v. Smith, that if at
    the time of death the original wound (here the original
    violence in the water referred to in the accused's story)
    was still an operating cause and a substantial cause the
    death could be said to be the result of this, even if some
    other cause, such as the action of the water, was still
    operating and that only if it could be said that the
    original violence was merely the setting in which the action
    of the sea operated could it be said that the death did not
    result from that violence. ....... His Honour did in
    substance, though not in precise words, so direct. He told
    the jury specifically that the act of the accused must be a
    substantial cause. He did not use the word operational; but
    his remarks about the death by drowning postulate that the
    accused was still unconscious from the violence used by the
    appellant when he was involved with the sea, either by the
    action of the tide or by rolling down the slope or by both.
    If this was so, clearly the violence which preceded the
    unconsciousness was still operational."

17. The High Court in Royall v The Queen (1990-91) 172 CLR 378 confirmed the view that the actions of an accused must be a substantial cause of death (even though some of the judges used other words): see, for example, Brennan J at 398, Deane and Dawson JJ at 411, McHugh J at 442 et seq.

18. For Robbins and Kelly to have had a case to answer, there must have been evidence, accepted by the jury, that the actions of one or other or both were a substantial cause of Brown's death. Unfortunately for the respondent there was none.

19. On the cause of death this is what Dr Manock said:-
    "Q. If this man, the deceased, was kneeling on the floor or
    half laying (sic) on the floor, involved in a struggle with
    another person and he was struck a very forceful blow by a
    piece of timber about three to four feet long, four by two,
    three by two which was described as a sickening thud and
    that blow rendered him unconscious and he was then seen to
    have blood coming from his nose, his mouth and his ears, do
    you agree that would suggest that the blow caused the
    fracture at the base of the skull.
    A. That would be a very reasonable assumption to make, yes.
    Q. That is the most serious injury and the most life
    threatening injury of those that you saw.
    A. Yes.
    Q. If that person was then seen to be going blue but someone
    pulled the tongue out and got the breathing occurring but
    was then laid on their back, that is a pretty dangerous
    position if they have suffered a fracture to the base of the
    skull.
    A. Yes.
    ...
    Q. Before lunch I put a factual situation to you that while
    the deceased was perhaps lying down or kneeling down, lower
    down anyway, having a struggle with another person, that he
    was struck a very forceful blow on the head - and please
    make notes if you need to because this could turn into a
    lengthy question - there is no conclusive evidence as to
    where it struck the deceased on the head, it may have been
    to the back of the head or to the side, assume it's not to
    the front, and there may have been two blows, one didn't
    appear to have an effect but the second was described by one
    witness as a sickening thud that immediately rendered the
    deceased unconscious to the point where he was going blue
    and required assistance by way of pulling his tongue out to
    commence breathing again and blood was seen to come from his
    nose, his mouth and his ears. You agreed with me, I think,
    before lunch that it was a reasonable interpretation that
    the blow, the heavy blow that rendered him unconscious
    caused the fracture at the base of the skull.
    A. Yes.
    Q. Then I suppose that interpretation is reinforced, if you
    like, if you add in the evidence that this man was placed on
    his back on a couch and was heard to be snoring in a rattly
    fashion or in a fashion that could be equated to sucking up
    the remains of a milkshake, do you agree with that.
    A. Yes.
    Q. All of this points at the moment, doesn't it, to an
    injury to the base of the skull, the fracture that you have
    described and bleeding caused by that injury.
    A. It does.
    Q. And bleeding that is entering into the airway.
    A. From the position laying (sic) on his back, that would be
    inevitable.
    ...
    Q. Do you agree with the proposition that on that particular
    scenario it is probable that the fracture at the base of the
    skull caused this man's death.
    A. Yes.
    Q. You cannot say, on the basis of the material before you,
    whether the other injuries, the fractures, whatever they may
    have been, contributed to the death or not.
    A. I can't say whether or not the other injuries, those to
    the right side of the head, to the mandible, the zygoma and
    the indented mark actually extended the fracture. I don't
    believe that the injury to the zygoma and mandible would
    extend the fracture and, therefore, it would not
    significantly alter the course of events. The indented mark
    behind the right ear may have extended the fracture line in
    which case it may have increased the rate at which death
    occurred but it would have been by a very small amount.
    ...
    Q. You have said as a matter of principle that further blows
    would add stresses but in this particular case you can't
    say, can you, whether any further blows contributed to the
    death by accelerating it or not. You simply don't know one
    way or the other.
    A. If you have someone with a single injury and you inflict
    additional injuries, then you will add additional stress on
    that person's ability to survive the first injury and, from
    that point of view, subsequent injuries must be additive,
    even though their effect might be minor.
    Q. You certainly can't say that it would be a substantial
    cause of the death.
    A. I didn't say that.
    Q. Their effect may be only minimal and you can't say one
    way or the other what effect they may have had.
    A. I can't say what effect they had but whatever effect they
    had would be additional and detrimental.
    Q. And could be anything from minimal upwards.
    A. Yes."

20. These exchanges were between Dr Manock and Mr Martin QC in cross examination.

21. I interpret the effect of Dr Manock's evidence to be that the hard blow struck by Hill probably caused death: the other blows may have contributed to death to a degree from minimal upwards. That is not an opinion of the actions of Robbins or Kelly being a substantial cause of death.

22. Miss Abraham had to argue that the jury could infer the victim had been alive because he had been able to get from the lounge room to the bedroom: in the bedroom he was hit again, this time by Robbins or Kelly or each of them and it was a matter for the jury as to whether these later blows were a substantial cause of death. With respect, such inferences must fall short of being proof beyond reasonable doubt of the cause of death.

23. In the course of a summing up favourable to the accused, the learned judge told the jury that they need not accept Dr Manock's evidence but "if you reject Manock there is no evidence of cause of death." With respect, that was quite right. Where did that leave the Crown at the close of its case? With the opinion of the only medical expert called that the probable cause of death was the early blow by Hill but a later blow (or blows) may have contributed to death by anything from a minimal degree upwards. Otherwise there was no evidence of the cause of death.

24. I conclude that the two accused, Robbins and Kelly, had no case to answer. The trial ought to have ended there for the convictions of Hill and Howell depended on the conviction of one or other or both of Robbins and Kelly. With respect, His Honour should have found that no accused had a case to answer.

25. That is sufficient to decide all the appeals but out of deference to the two other arguments put by Mr Martin, I merely say, first, that in my view Duncan was such an unreliable witness, in part on his own admission, that verdicts relying on his evidence, (as the Crown had to rely) were quite unsafe. Secondly there was no evidence of a joint enterprise between Robbins and Kelly, merely inferences incapable of amounting to proof beyond reasonable doubt.

26. We did not hear Mr Martin or Miss Abraham on Mr Martin's other grounds nor did we hear other counsel at all. Thankfully, because of the conclusion I have reached, we should not need to hear any further argument. Mr Martin's point on causation is decisive.

27. I suggest that the four appeals from conviction be allowed and that verdicts of not guilty be recorded. It follows that the sentences imposed on Hill and Howell disappear with the verdicts of not guilty.

JUDGE2 PRIOR AND DUGGAN JJ The appellants were charged with offences arising out of the death of a man named Colin Brown and were tried jointly. The appellants Robbins and Kelly were found guilty by the jury of murdering Brown at Renmark on or about 11th October, 1991. The appellants Hill and Howell were found guilty of being accessories after the fact to the alleged murder. It was alleged that Hill had assisted the principal offenders by deceiving the police as to the whereabouts of the deceased when he was aware that the deceased had been killed and that Howell had assisted by washing away some blood stains in the house in which it was alleged that the deceased was killed.

2. The principal grounds of appeal put forward by the appellants are that the trial judge erred in ruling that there was a case to answer against any of them and that the verdicts are unsafe and unsatisfactory. In particular it was argued on appeal that the prosecution had not proved that the deceased died as a result of the actions of either Robbins or Kelly or both.

3. The relevant facts disclosed by the prosecution case are as follows. The appellants, the deceased and a number of their acquaintances attended a party at a house at Renmark which commenced towards evening on Thursday 10th October, 1991. The house was occupied by the appellants Robbins and Howell, a man named Faulkhead and another man. Alcohol was consumed at the party and a number of those present congregated around a bonfire which had been lit in the backyard.

4. In the course of the evening those around the fire heard yelling and screaming coming from inside the house. Some of them went inside to the kitchen where they saw Brown attacking Robbins' girlfriend, Samantha Howell. The prosecution's main witness, Anthony Duncan, said in evidence that Howell was lying on her stomach on the kitchen floor and Brown was either kneeling or lying over her and trying to force her face down onto some broken glass on the floor. The appellant Hill then hit Brown with a piece of wood the thickness of which measured approximately four inches by two inches. In the earlier part of his evidence Duncan said that one blow was struck by Hill, but in cross-examination he said two blows were struck. He said that Brown was knocked unconscious by the second blow.

5. Another prosecution witness, Raymond Black, said he saw Brown with his hands twisted in Howell's hair as they were lying on the floor. Black tried to get Brown to release his grip and he said that, as he was doing so, someone (he did not see who) hit Brown over the back of the head. Black emphasised the force of the blow. He said that Brown was "bludgeoned", that it was "hard enough to kill a cow" and that it was so hard that it "stuck in my mind for the rest of my life".

6. It would appear that Black had some rudimentary training in first aid. He stated that the force of the blow rendered Brown unconscious and that he stopped breathing. The witness said he had to pull the man's tongue out of his throat to revive him. Blood came out of Brown's nose and ears and he went blue. Black's description of Brown was supported by Black's girlfriend, Sharon Whitford, who also gave evidence for the prosecution. She said Brown went a purple colour and blood was coming from his nose, mouth and ears. Some of those present in the kitchen lifted Brown onto a couch in the lounge room. He was positioned on his back and Whitford said he was snoring with a "rattling type snore" which sounded like someone sucking through a straw at the bottom of a near empty milkshake container.

7. The majority of those present at the party left the premises shortly after this incident in the kitchen and, in due course, Robbins, Kelly and Duncan were the only persons standing in the vicinity of the fire. The prosecution case in relation to the events which followed the departure of the guests at the party was based upon an account given by Duncan. His evidence was most unsatisfactory and, because of the internal contradictions on most of the major aspects, it is difficult to piece together a narrative based on his final position in relation to each of the individual events.

8. Duncan was unsure as to how long after the incident in the kitchen it was that he and the other two were left by themselves at the fire. He said that he did not know whether it was an hour or a couple of hours. However he said that at some stage while the three were present there was talk of "knocking 'Tigger' (Brown) on the head". He said that it was Robbins who made this comment and that Robbins said something about "finishing Tigger off" and dumping his car in the river. Duncan said that Kelly made no response to this comment. He said that Robbins was holding something in his hand at the time. He could not be sure what it was but it was metal and he thought it was a shifting spanner.

9. In evidence-in-chief Duncan said that at some stage after the above conversation took place Robbins went inside the house and the witness heard a moan or a groan coming from inside. He said that Robbins came out and Kelly went inside. While Kelly was inside he heard another moan or groan. In the course of cross-examination, however, Duncan agreed that he did not see either appellant enter the house after they left the fire and he could not really say who left the fire first. He also said that the moan or groan on each occasion could have come from outside the house. He agreed with the suggestion that the noise could have come from someone vomiting. Duncan left the premises shortly thereafter. However he said that he saw Robbins and Kelly at a service station at about 10.00 o'clock on the Friday morning and they told him they had just buried Brown. Duncan was first interviewed by the police about 12 months after these events. He agreed that he was significantly affected by liquor at the relevant time and that he had a poor memory of what transpired.

10. The appellants Robbins and Kelly were apprehended and charged with murder in the latter part of 1992. They did not dispute that they had buried Brown and later reburied him. However Brown's body was not found until 29th March, 1994 when Robbins took the police to the burial site. In his interview with the police Robbins blamed Kelly for inflicting injury on Brown and said that he helped Kelly to bury the body. Robbins gave evidence before the jury along the lines of his interview. For obvious reasons the prosecution did not rely on Robbins' evidence in proving its case against Kelly. The learned trial judge ruled that Kelly's interview could not be led as part of the prosecution case, although parts of it were revealed in the course of cross-examination by Robbins' counsel. Kelly did not give evidence.

11. The prosecution called Dr Manock, the pathologist. He was present when Brown's body was exhumed on 30th March, 1994. Little more than the skeleton was retrieved so there was no opportunity to observe any soft tissue injuries which might have been present when the body was buried.

12. An examination of the skull revealed four injury sites. The first involved fractures to the zygoma and mandible on the right side of the skull. According to Dr Manock's evidence these were probably caused by a single blow with a pointed object. The second injury was an indented mark in the outer bone on the right side of the skull bone. According to the evidence this also would have been caused by a single blow and it is possible that an object such as a shifting spanner was used. The third and fourth injuries consisted of two linear fractures which joined each other. One travelled across the base of the skull. They were relatively straight fractures and Dr Manock was of the view that they were caused by two blows with an object such as a piece of wood of the type referred to by Black.

13. It would appear that the main injury to the base of the skull was caused by a blow to the left side of the head. It would not have been associated with the injury to the zygoma and mandible. Dr Manock said that the latter injury could have caused death from associated bleeding but that this was not likely. However he said that the fracture to the base of the skull caused by the one blow could quite easily have caused death. Bleeding could have placed pressure on the brain leading to death in about half an hour or, if the person inhaled blood being shed from the back of the nose, that could block the air passages and death could occur within approximately five minutes.

14. In the light of the earlier incident in the kitchen of the house when, according to the prosecution evidence, Brown was struck by Hill with a piece of wood Dr Manock was cross-examined as to the likely consequences of such an attack.
    "Q. If this man, the deceased, was kneeling on the floor or
    half laying (sic) on the floor, involved in a struggle with
    another person and he was struck a very forceful blow by a
    piece of timber about three to four feet long, four by two,
    three by two which was described as a sickening thud and
    that blow rendered him unconscious and he was then seen to
    have blood coming from his nose, his mouth and his ears, do
    you agree that would suggest that the blow caused the
    fracture at the base of the skull.
    A. That would be a very reasonable assumption to make, yes.
    Q. That is the most serious injury and the most life
    threatening injury of those that you saw.
    A. Yes.
    Q. If that person was then seen to be going blue but someone
    pulled the tongue out and got the breathing occurring but
    was then laid on their back, that is a pretty dangerous
    position if they have suffered a fracture to the base of the
    skull.
    A. Yes.
    Q. Why is it dangerous?
    A. If you are unconscious and you lose the normal reflexes
    which protect your airway, if you are awake and you vomit,
    then your throat constricts, your epiglottis closes off the
    airway and the airway is protected. If you are unconscious,
    the epiglottis is more or less paralysed and doesn't
    respond. The next breath that you take in contains vomit or
    blood or whatever else happens to be at the back of your
    throat. It's a very dangerous position for anyone who is
    unconscious, whether it be from alcohol or a head injury, to
    be placed in - lying on your back. The position for the
    unconscious patient is lying usually on the left side in a
    semi-foetal position with the mouth below the level of the
    neck; in other words, the head is turned downwards so any
    drainage of fluid will come out from the mouth and this
    protects the airway.
    Q. If the person who had been rendered unconscious with this
    injury had been drinking heavily, that just compounds the
    problem?
    A. Yes, in two ways. It tends to upset the protective
    reflexes but also it interferes with the clotting of blood
    so that any bleeding that does occur will tend to continue
    longer than if alcohol hadn't been present.
    Q. Because of the blood going back down into the airway, can
    that lead to what might be perceived, from the layperson,
    inexperienced person, as a 'rattly snore'?
    A. Yes.
    Q. A snore that might be compared to someone sucking up the
    last bit of a milk shake?
    A. Yes.
    ...
    Q. Before lunch I put a factual situation to you that while
    the deceased was perhaps lying down or kneeling down, lower
    down anyway, having a struggle with another person, that he
    was struck a very forceful blow on the head - and please
    make notes if you need to because this could turn into a
    lengthy question - there is no conclusive evidence as to
    where it struck the deceased on the head, it may have been
    to the back of the head or to the side, assume it's not to
    the front, and there may have been two blows, one didn't
    appear to have an effect but the second was described by one
    witness as a sickening thud that immediately rendered the
    deceased unconscious to the point where he was going blue
    and required assistance by way of pulling his tongue out to
    commence breathing again and blood was seen to come from his
    nose, his mouth and his ears. You agreed with me, I think,
    before lunch that it was a reasonable interpretation that
    the blow, the heavy blow that rendered him unconscious
    caused the fracture at the base of the skull?
    A. Yes.
    Q. Then I suppose that interpretation is reinforced, if you
    like, if you add in the evidence that this man was placed on
    his back on a couch and was heard to be snoring in a rattly
    fashion or in a fashion that could be equated to sucking up
    the remains of a milkshake, do you agree with that?
    A. Yes.
    Q. All of this points at the moment, doesn't it, to an
    injury to the base of the skull, the fracture that you have
    described and bleeding caused by that injury?
    A. It does.
    Q. And bleeding that is entering into the airway?
    A. From the position laying on his back, that would be
    inevitable.
    Q. If you assume that factual scenario for the moment, I
    want you to then assume that subsequently the other
    fractures, some or all of them, depending on what was caused
    at the time the fracture at the base of the skull was caused
    but, on your understanding and your interpretation, there
    were some other fractures caused right?
    A. Yes.
    Q. Do you agree with the proposition that on that particular
    scenario it is probable that the fracture at the base of the
    skull caused this man's death?
    A. Yes.
    Q. You cannot say, on the basis of the material before you,
    whether the other injuries, the fractures, whatever they may
    have been, contributed to the death or not?
    A. I can't say whether or not the other injuries, those to
    the right side of the head, to the mandible, the zygoma and
    the indented mark actually extended the fracture. I don't
    believe that the injury to the zygoma and mandible would
    extend the fracture and, therefore, it would not
    significantly alter the course of events. The indented mark
    behind the right ear may have extended the fracture line in
    which case it may have increased the rate at which death
    occurred but it would have been a very small amount.
    Q. The situation is this, that you don't know, do you?
    A. I don't know.
    Q. Whether it extended it or not?
    A. Correct.
    Q. Because what you don't know is how far that fracture
    across the base of the skull extended from the first blow or
    the blow that caused it?
    A. Quite correct.
    Q. You can't help us with whether any other blow contributed
    to the death or not. You don't know one way or the other?
    A. That's correct."

15. There was no expert or other evidence to contradict Dr Manock's assessment. His evidence, taken in conjunction with the evidence of other prosecution witnesses, placed the prosecution in the position of having to accept that Hill's actions were the substantial cause of death. Accordingly there was no basis upon which a jury could convict either Robbins or Kelly of murder unless the prosecution proved that either one or both of them inflicted an injury or injuries as part of a joint enterprise to kill Brown or cause him serious bodily harm and that injury or those injuries constituted a substantial cause of death. It is apparent from the evidence of Dr Manock referred to above that this essential aspect of the prosecution case could not be proved by the medical evidence. Dr Manock confirmed his view in later evidence:
    "Q. You have said as a matter of principle that further
    blows would add stress but in this particular case you can't
    say, can you, whether any further blows contributed to the
    death by accelerating it or not. You simply don't know one
    way or the other?
    A. If you have someone with a single injury and you inflict
    additional injuries, then you will add additional stress on
    that person's ability to survive the first injury and, from
    that point of view, subsequent injuries must be additive,
    even though their effect might be minor.
    Q. You certainly can't say that it would be a substantial
    cause of the death?
    A. I didn't say that.
    Q. Their effect may be only minimal and you can't say one
    way or the other what effect they may have had?
    A. I can't say what effect they had but whatever effect they
    had would be additional and detrimental.
    Q. And could be anything from minimal upwards?
    A. Yes.
    Q. If the person has sustained a fracture to the base of the
    skull and is, in fact, in the process of dying from asphyxia
    because of the blood going into the air passage and further
    blows are struck, do you agree it may have absolutely no
    effect on the flow of the blood into the air passage?
    A. There are a number of scenarios where it would have an
    effect and there is one where it would have no effect. Any
    injury which transmits force to a pre-existing injury may
    well cause that injury to commence bleeding, recommence
    bleeding, increase the rate of bleeding, extend injury. If
    that bleeding from that injury is going into the air
    passages then it will increase the rate at which asphyxia is
    likely to occur.
    Q. In this instance, however, you can't say that any
    subsequent blow had any effect whatsoever on the original
    injury to the base of the skull because, as you said before,
    you don't know how far across that injury extended in the
    first place?
    A. That's right."

16. The remainder of the prosecution case did little, if anything, to overcome the obstacle which this evidence placed in the way of convictions for murder. At the close of the prosecution case there was no evidence upon which the jury could safely rely to establish what happened inside the house after Hill's attack upon Brown and after most of those who had attended the party had gone home. If there had been more specific evidence of further violence, that second episode of violence, coupled with the death of Brown within a short time, may have provided the basis for an inference that death had been accelerated to a significant degree by the subsequent acts. However in its final form the unsatisfactory evidence of the witness Duncan, if accepted, did little more than prove the making of the suggestion by Robbins while he was standing by the fire and the fact that he and Kelly had at different times walked away from the fire. There was evidence that Brown was in a room other than the lounge room at some stage after he had been placed on the couch in the lounge room and that there were blood spatters in that other room. However, even if it is assumed that Robbins or Kelly or both caused the injuries to the right side of the skull, the remainder of the evidence establishes that the most likely cause of death was the injuries inflicted by Hill. There is a possibility, but no more, that the other injuries contributed to death but even if they did it was not established that they would have had more than a minimal effect. The fact that both Robbins and Kelly were engaged in the disposal of the body cannot overcome the lack of a sufficient causative link between their actions and the deceased's death. Evidence led by the prosecution did not identify any acts other than Hill's that could be a substantial cause of death. Judgments in Royall v The Queen
(1990) 172 CLR 379, make it plain that an act causes death if it is a substantial operating cause of death. One that has a minimal effect is not enough. Criminal responsibility attaches to an accused if his conduct is "a substantial significant cause of death". (Deane and Dawson JJ at 411) Toohey and Gaudron JJ point out that where there is more than one cause of death the question is whether "an act of the accused substantially contributed to the death". See 423. At 443, McHugh J referred to the substantial operating cause doctrine of causation being adopted by this Court in R v Hallet (1969) SASR 141 at 149. Later in his judgment, McHugh J said, at 449:- "The word 'substantial' means no more than not de minimis."

17. This statement is consistent with approaches of courts in other jurisdictions. In Smithers v The Queen (1977) 34 CCC 2d 427 at 435, the Supreme Court of Canada said that acts were a contributing cause of death if they were "outside the de minimis range". In R v Cato (1967) 1 WLR 110 at 115 and 117, the Court of Criminal Appeal in England said "something more than the mere de minimis contribution" to death had to be established. "Adequate causation" had to be present. The prosecution case identified acts other than Hill's that could have constituted a minimal contribution to Brown's death. The mere possibility of those acts doing more than that was also acknowledged. That is not sufficient to produce, in the minds of a reasonable jury, satisfaction beyond reasonable doubt as to cause of death: R v Billick and Starke (1984) 36 SASR 321 at 335. Thus there was no case to answer on the evidence. In any event, the verdict cannot be supported having regard to the evidence. It was not open to the jury to be satisfied beyond reasonable doubt that any acts of the first and third appellants caused death: Chidiac v The Queen (1991) 171 CLR 432 at 443. The evidence was incapable of excluding the hypothesis or inference that blows by persons other than Hill did not cause death: Knight v the Queen (1992) 175 CLR 495 at 504. All four convictions must be set aside and verdicts of not guilty recorded. It is not necessary to deal with other grounds of appeal taken by the appellants.