R v Huber - [2025] NSWSC 714

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Huber [2025] NSWSC 714
Hearing dates: 18, 19, 20, 23, 24, 25, 26 June 2025
Date of orders: 7 July 2025
Decision date: 07 July 2025
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) On the charge that, on 3 January 2023, at Ballina in the State of New South Wales, the accused, Robert Karl Huber, did murder Lindy Lucena contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), the Court finds the accused not guilty.
(2) On the charge that, on 3 January 2023, at Ballina in the State of New South Wales, the accused, Robert Karl Huber, did unlawfully kill Lindy Lucena, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), the Court finds the said Robert Karl Huber guilty as charged.
(3) The Court will list, after consultation with the parties, a sentencing hearing in relation to Counts 1 and 3 on the indictment.

Catchwords:
CRIME — murder — plea of not guilty — elements of murder — causation — circumstantial evidence — inferences — where medical mechanism of death is not straightforward — where experts disagree on cause of death — whether assault by accused caused death — cause of death versus mechanism of death — methadone overdose — commotio medullaris — positional asphyxiation — axonal injury — domestic violence — requisite intention not found — verdict of not guilty to murder but guilty of manslaughter
CRIME — manslaughter — alternative to murder — unlawful killing — plea of not guilty — elements of manslaughter — verdict of guilty
CRIME — violent offences — assault occasioning actual bodily harm — guilty plea
CRIMINAL PROCEDURE — trial — judge alone — Criminal Procedure Act 1986 (NSW) s 133

Legislation Cited:
Crimes Act 1900 (NSW), s 18
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), s 79

Cases Cited:
Carr v Baker [1936] SR (NSW) 301
Fabre v Arenales (1992) 27 NSWLR 437
Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4

Texts Cited:
“Methadone and drug addicts”, Karen Worm, Anni Steentoft, and Birgitte Kringsholm, International Journal of Legal Medicine (1993) 106
Randal C Baselt, “Disposition of Toxic Drugs and Chemicals in Man”, 12th ed, Biomedical Publications, 1 June 2020

Category: Principal judgment
Parties: Rex (Crown)
Robert Karl Huber (Accused)
Representation:
Counsel:
Ms S Oliver (Crown)
Mr J Watts (Accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Legal Aid New South Wales (Accused)

File Number(s): 2023/00003477
Publication restriction: N/A

JUDGMENT

HIS HONOUR: On 23 September 2024, the Director of Public Prosecutions charged Robert Karl Huber (hereinafter the accused) on indictment with three offences. The first offence charged is an assault on Lindy Lucena (hereinafter the deceased), being an assault occasioning actual bodily harm which occurred on 26 December 2022. To that charge, the accused has pleaded guilty before the Court. The trial was conducted by judge alone.
The second and third charges are murder and manslaughter and charge that on 3 January 2023, at Ballina in the State of New South Wales, Robert Karl Huber did murder the deceased, and, alternatively, that the accused did unlawfully kill the deceased. To each of those charges, he accused has pleaded not guilty.
While manslaughter is a statutory alternative to murder and available as an alternative finding on a charge of murder even when not separately charged, the Director has opted to include manslaughter on the indictment. Nothing turns on such a distinction.
As the assault occasioning actual bodily harm that occurred on 26 December 2022 is the subject of a plea of guilty, other than to note that a sentence hearing will be held in relation to that charge, nothing further in these reasons deals with that offence.
Pursuant to the provisions of s 133 of the Criminal Procedure Act 1986 (NSW), the Court is entitled to make any findings that a jury could make on the guilt of the accused, which finding has the same effect, and the Court is required to issue a judgment which includes the principles of law applied and the findings of fact on which the judge has relied. Further, by the provisions of s 133(3) of the Criminal Procedure Act, where a warning is required to be given, the judge is required to take the warning into account in dealing with the matter.
Generally, while it may seem rather odd, a judge hearing a judge alone trial is required to give the warnings and directions that would ordinarily be given to a jury dealing with the factual matters. Nevertheless, as there is a requirement to issue reasons which include the principles and findings of fact, the manner in which the judicial officer has dealt with the issues that are usually the subject of warning or direction should be obvious in any event.

Murder and manslaughter

It is necessary to deal with the elements of the offence of murder and the relevant differences between murder and manslaughter. In order to prove the offence of murder, the Crown must establish, beyond reasonable doubt, each of the relevant elements of murder. They are:

the death of the deceased;

that the act of the accused was an operating and substantial cause of death;

that the act of the accused was deliberate; and

that the act which was the operating and substantial cause of death performed by the accused was, at the time it was performed, done with an intention to kill, or an intention to inflict grievous bodily harm.

While murder may be proved in circumstances where element (d) includes a reckless indifference to human life, such is not a relevant aspect of the charge before the Court. Later in these reasons, I will deal with the difference between a deliberate act and the intention of the accused.
If the Crown, on the charge of murder, is unable to prove beyond reasonable doubt the requisite state of mind of the accused, then the charge of manslaughter, being an unlawful killing other than murder, must be considered, but not before the murder charge has been resolved. The elements in relation to manslaughter are, except in relation to element (d), the same as that for murder.
In order for the accused to be found guilty of manslaughter, it is necessary for the accused to be found not guilty of murder, and it is necessary for the Crown to prove:

the death of the deceased;

that the act of the accused was an operating and substantial cause of death;

that the act of the accused was deliberate; and

relevantly, that the act of the accused that was an operating and substantial cause of death was an unlawful and dangerous act.

As can be seen from the outline of elements, the “only” difference between murder and manslaughter is element (d). In murder, the Crown is required to prove, beyond reasonable doubt, the requisite intention required for the more serious charge to be proved.
In the case of manslaughter, the Crown is required to prove, again beyond reasonable doubt, the deliberate application of force to the deceased without the deceased’s consent, and that the application of force is dangerous in that a reasonable person in the position of the accused would have realised that by that act the deceased was being exposed to an appreciable risk of serious injury.
The Crown does not have to establish that the act of the accused was done with any particular intention to injure. The offence of manslaughter is complete even if no injury was intended by the accused. The question is whether a reasonable person in the position of the accused would have realised that the accused was exposing the deceased to an appreciable risk of serious injury.
There is a distinction between a deliberate act and an intention of the kind required for the offence of murder. In order for an act to be deliberate it must be voluntary and willed. Thus, an involuntary or reflex action would not be a voluntary act.
On the other hand, intent and intention, in the context of murder elements, are ordinary English words and are to be considered in that way. The accused’s intention may be inferred or concluded from the circumstances of the act and other evidence. But the existence of the requisite intention is not determined objectively; it is a subjective intent that is required to be proved by the Crown in order to establish guilt for murder. The accused’s actual intent or state of mind is the issue that is required to be proved by the Crown beyond a reasonable doubt.
It does not require the accused to admit his subjective intention to kill or his subjective intention to inflict grievous bodily harm. An intention to kill or to inflict grievous bodily harm can be inferred from the conduct itself. Ordinarily, human beings intend the obvious and inevitable consequence of the conduct performed.
The question of proof of the requisite intention is not to be confused with whether there is a deliberate act (being a voluntary act), premeditation or planning, or regret at the eventual result. In the case of a homicide, many persons guilty of either murder or manslaughter may regret that the victim has died, but the Court is tasked with determining whether the intention existed at the time of the performance of the act causing death, not whether there was regret after the event. Further, an intention that exists at the time that an act is performed does not require that the act is premeditated or planned. An act that causes death may be a reaction or an intention formed on the spur of the moment.

Onus and standard of proof

As has been stated, the Crown is required to prove the contested charges beyond reasonable doubt. To that end, the Crown is required to prove every element of the offence and every essential fact that makes up the offence beyond reasonable doubt. In this case, there is no defence of the kind that requires the accused to prove anything and there is certainly no obligation on the accused to prove any fact or issue in dispute. The accused is not required to prove his innocence.
Proof beyond reasonable doubt is the higher of the two standards used in the justice system. While in civil proceedings a factfinder may be satisfied on the balance of probabilities, which requires that the scales of justice be tipped ever so slightly in favour of the existence of a fact as against its non-existence, the criminal justice system, in part because of the consequences of a finding of guilt, requires the higher standard of proof beyond reasonable doubt. The higher standard requires that the Crown eliminate any reasonable possibility inconsistent with the satisfaction of any one of the elements of the offence in question or of any fact necessary to be proved in order for guilt to be established.
The presumption of innocence, which applies to every person charged with an offence, is a fundamental aspect of the criminal justice system and is the underlying rationale for many of the consequential rights enjoyed by an accused. These include the privilege against self-incrimination and the right to silence.
The accused has stated, in an informal statement recorded on bodycam, that he did not touch the deceased. Apart from that expression in one or more iterations, the accused has remained silent. He is entitled to remain silent, and he need not have stated even that informal reaction to a question asked.
The presumption of innocence requires the Crown to prove all elements of the offence. The circumstance that the accused has not given evidence, or has not given an account of events, cannot be used by the Court to give rise to any inference adverse to the accused or to fill any gaps in evidence that are or may be a result of the Crown case. An accused is entitled not to give evidence, to put the Crown to proof and to show that the Crown’s evidence does not establish the guilt of the accused beyond reasonable doubt.

Circumstantial evidence and inferences

Most murder trials are to some extent circumstantial and rely upon inference. The Crown case relies upon the proof of a number of facts from which it asks the Court to infer criminal conduct of the kind alleged. It is necessary to discuss both the drawing of inferences in criminal trials, and elsewhere, and the means by which circumstantial evidence can amount to proof beyond reasonable doubt.
The Court is entitled to draw inferences from direct evidence. In criminal trials, care must be taken in the drawing of an inference, and the factfinder must always bear in mind that it is for the Crown to prove guilt beyond reasonable doubt.
The drawing of inferences has been described as “plain commonsense”. [1] In Fabre v Arenales, Mahoney JA (with whom, relevantly, Priestley and Sheller JJA agreed), after citing the judgment of Menzies J in Jones v Dunkel (at 312) and, at length, of Windeyer J in Jones v Dunkel (at 320-321), said, in relation to the drawing of inferences:

“There is in this nothing esoteric or peculiar to legal reasoning. It is, as Windeyer J said, ‘plain commonsense’. A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, ‘human experience would be contradicted if’ Z did not exist … It follows that the inference will or may be drawn if general human experience (plain commonsense) will not be contradicted if the inference be drawn.” [2]
1. Fabre v Arenales (1992) 27 NSWLR 437, citing Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Jones v Sutherland Shire Council [1979] 2 NSWLR 206.
2. Fabre v Arenales, supra, at 455.

Although not seemingly intended, the comment of Mahoney JA reverses the logical effect of the comments by Knox CJ and Dixon J. There is a difference between being able to draw an inference if human experience would not be contradicted to draw the inference, on the one hand, and, on the other hand, drawing an inference only when human experience would be contradicted if it were not drawn. In a criminal trial, it would seem that the inference may only be drawn where the issue is one that will determine or may determine guilt or is critical to the determination of guilt on the more strict requirement, namely in circumstances where not to draw the inference would contradict human experience.
The drawing of inferences in civil and criminal proceedings was explained by Sir Frederick Jordan CJ in Carr v Baker. [3] The Learned Chief Justice said:

“In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial. … In a criminal matter it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact. … It has been clearly and emphatically laid down … that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture. … The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability – a mere scintilla of probability such as would not warrant a finding in a civil action… to such practical certainty as would justify a conviction in a criminal prosecution. … It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established. … This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. … There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects, it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established.” [4] [Citations omitted.]
3. Carr v Baker [1936] SR (NSW) 301 at 306-307.
4. Ibid.

The extract of the judgment of Sir Frederick Jordan refers to the availability of inferences and whether they should be drawn. When, as is often the circumstance in criminal trials, the factual issues are determined by a jury and there are two reasonable views to be taken of the evidence, it is a matter for the factfinder to determine which of the inferences should be drawn.
In this case, it is for the Court, as presently constituted, to make that judgment. However, where there are two reasonable inferences that may be drawn and one of them is inconsistent with guilt or a finding critical to guilt, the Crown has not proved the element or critical fact in a manner that is beyond reasonable doubt. Ultimately, a guilty verdict is not able to be reached unless the Crown has excluded all reasonable hypotheses inconsistent with guilt. [5]
5. The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46], [50].
In Baden-Clay, the High Court stated that for an inference to be reasonable, it must rest upon something more than mere conjecture. [6] However, that does not mean that there must be evidence supporting the hypothesis inconsistent with guilt in order for a Court to determine that the Crown has failed to prove its case. If, on the evidence adduced by the Crown and upon which the Crown relies, there remains a reasonable possibility inconsistent with guilt, the Crown has failed to prove its case, and the verdict must be not guilty.
6. Ibid, at [47].
Not all facts are required to be proved beyond reasonable doubt. But each of the elements of the charge must be proved to that standard and each of the facts that are critical to the finding of guilt must be proved to that standard. In many respects, the drawing of inferences and the nature of circumstantial evidence overlap. While you can draw an inference on essential facts and the elements of the crime only where that inference is the only reasonable inference available, it may be that there are two or more reasonable possibilities from direct evidence that you accept and only one of them is consistent with guilt, but the addition of other evidence renders the inference consistent with guilt such that it is proved beyond reasonable doubt.
Thus, where two or more reasonable possibilities in relation to an element of the offence or essential fact in the commission of the offence arise from the direct evidence that you accept, and only one of them is consistent with guilt, you must find that fact not proved and therefore the accused not guilty. Each fact is not looked at by itself. Rather, the evidence is looked at as a whole.

The process by which facts are added together to prove, if that be the outcome, a fact beyond reasonable doubt is often described by analogy with the cable and the strands of a cable. Each particular strand may not be strong enough to hold the weight you need to hold, but when you bind all of the strands together, you form a cable that is strong enough to perform the task you want it to perform. Similarly, one can join facts together in such a way that you ultimately rule out any reasonable possibility or hypothesis, as a matter of common sense.
Sometimes, however, a particular fact is crucial or essential to the ultimate conclusion and, in those circumstances, if that fact were not proved beyond reasonable doubt, then the whole cable fails and the weight of the burden of proving guilt beyond reasonable doubt cannot be sustained. In that sense, the essential fact is the weak link in a chain of reasoning. [7]
7. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56.

Witnesses

In relation to lay witnesses, the Court as factfinder, can reject all of the evidence of any particular witness, some of the evidence of a witness or none of the evidence of the witness. In making that choice, human or common experience plays a large part, but demeanour can be overemphasised. Generally, the reliability or truthfulness of a witness is better determined by that which is known objectively and the extent to which such objective factors leave a doubt on the reliability or truthfulness of the particular witness.
Where a witness is not believed, the evidence which is the subject of doubt does not form evidence to the contrary. The circumstance that the Court does not believe some part of the evidence of some of the witnesses does not result in proof of the opposite to that which has been asserted by the witness. If there were no other evidence on the issue, disbelieving the evidence of a witness results in the proposition that there is no evidence one way or the other on that fact. [8]
8. Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52 at [28] (Bell J).
Such a proposition is a matter of both logic and common sense. If a witness were to testify that the sky is blue, disbelieving the witness does not prove that the sky is not blue.
Lastly, it is necessary to deal with the conflict between experts. Expert evidence is adduced pursuant to the terms of s 79 of the Evidence Act 1995 (NSW). It is adduced because of the specialised knowledge of the person giving the evidence.
Necessarily, the term “specialised knowledge” imports knowledge of matters which are outside the knowledge or experience of ordinary persons, and which is organised or recognised to be accepted as a reliable body of knowledge or experience. In providing an expert opinion, an expert witness may, nevertheless, have regard to matters that are otherwise within the knowledge of ordinary persons.
If the conflicting evidence of experts is not based on matters or assumptions with respect to matters upon which the non-expert factfinder can reach conclusions, but is rather an opinion on matters of science or at a level of difficulty and sophistication above that which might be expected of the general public, the non-expert factfinder cannot, by reference solely to that expert evidence, resolve the conflict in a manner which would eliminate reasonable doubt. Where experts are in conflict on issues of expertise, which do not depend upon facts that are in dispute and can be determined differently from that which is understood by the expert, it is not for the non-expert factfinder, in this case the Court, to choose between the different experts in a way which eliminates a reasonable doubt. [9]
9. Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4.

Lay and police evidence

There are agreed facts that deal essentially with the assault on 26 December 2022. [10] At about 9pm on that date, the accused assaulted the deceased during the course of an argument inside their caravan at Site 64 of the Reflections Caravan Park at Ballina.
10. Exh B, Agreed Facts
The assault was with a closed fist to the left cheek area of the face. A second punch was thrown, which connected with the deceased’s left arm as she raised it to block the punch.
A security guard intervened, and the accused desisted from the assault and went to the rear of the caravan. As a result of the assault, the deceased had bruising around her left eye and over her left cheek. There was also bruising on the deceased’s forearms, presumably from the defence to the second punch.
There are images of the deceased, [11] which show a small area of blackening under the eye and a darkening and possible abrasion on the left very upper cheek under the eye. There is no visible damage to the right side of the face. Nor is there damage to the nose of any kind that is visible in any of the photographs.
11. Exh B.
The relevance of the injuries and event is that it provides a datum point from which the later injuries can be measured. It is also relationship evidence which confirms other evidence relating to the relationship between the deceased and the accused.
On 27 December 2022, the accused was charged with the assault occasioning bodily harm and on 28 December 2022 was granted bail. Also, on 28 December 2022, a provisional apprehended domestic violence order was issued, which, apart from the usual provisions, prohibited the accused from being in the presence of the deceased within 12 hours of consuming drugs or alcohol. [12]
12. Exh R.

Tahenie Giordmaina

The deceased’s daughter, Tahenie Giordmaina, testified that the deceased and Ms Giordmaina’s father separated in 2015, after which her mother relocated to Lismore with a friend. She became aware that her mother commenced a relationship with the accused but had never met the accused in person. She had conversations with him over the phone and communicated otherwise through text messages.
Ms Giordmaina married in June 2022 and evidence was adduced about an engagement party which occurred in March 2021, shortly before her mother suffered a stroke. Ms Giordmaina had paid for her mother’s flight to Sydney to attend the engagement party, but her mother did not attend. She learnt about her mother’s stroke after she had attempted, on a number of different mobile numbers, to contact her.
One of the calls was answered by the accused who told her that her mother had a stroke two days before. Ms Giordmaina drove with her fiancé to Lismore Base Hospital to see her mother. When the deceased was moved to Ballina Rehabilitation Unit, Ms Giordmaina returned to Sydney.
Contact between Ms Giordmaina and the deceased after the stroke was “fairly sporadic”. Sometimes, the accused would answer the phone, and he would decide whether or not Ms Giordmaina could speak to her mother. He would tell her to “fuck off or hang up on the phone on [her] or would put it on speaker and then allow mum to speak on the phone but then consistently interject”. At one point, Ms Giordmaina and her mother corresponded on the accused’s phone.
After the floods in 2022, the deceased and the accused were placed in a caravan park. The wedding occurred on 4 June 2022, and, again, Ms Giordmaina had booked flights and accommodation for the deceased. She was expecting her mother to arrive on 2 June 2022, but she did not arrive. She did not hear from her mother until the Monday after the wedding, and she was told that the flights had been cancelled out of Ballina due to COVID. However, even though Ms Giordmaina had paid for the flights, she did not receive a refund or flight credit relating to any alleged cancellation. I do not accept that the flights were cancelled.
Screenshots of text messages are before the Court. [13] On 8 December 2022, Ms Giordmaina sent a text message to the accused asking him to put her mother on the phone.
13. Exh E.
Earlier that day, the accused had called Ms Giordmaina and told her to come and pick up her mother from where they were because the accused and the deceased “were done”. His tone, according to the witness, was direct, angry and sharp. He did not answer follow up questions and hung up. In the text messages, Ms Giordmaina continued to ask to speak to her mother, to which the accused responded, “Tomorrow, now fuck off”.

Julie Viney

It seems, as a result of the assault and its aftermath on 26 December 2022, the accused and deceased were ejected from the caravan park at which they were accommodated following the floods.
On 1 January 2023, there was a telephone conversation between the deceased and Julie Viney, the deceased’s sister. The conversation occurred in the late afternoon and the deceased told Ms Viney that “they [the accused and the deceased] were moving out of their motel they had been placed in. She didn’t know where they were going to be moved to. [Ms Viney] said to her you might not hear about where you would be staying as the next day was a public holiday. [The deceased] told her that they didn’t have a car, but they were getting a van”. As is obvious from the extract of her evidence, the next day, in the evidence of Ms Viney, was 2 January 2023.
Ms Viney also gave evidence of prior contact with the deceased. The deceased and the accused had been together since the end of 2018 or early 2019. The deceased had multiple different phone numbers on which she could be contacted or from which she would contact Ms Viney. The accused would use the deceased’s phone numbers as well as his own. Ms Viney testified that in around Easter of 2022, the deceased had two strokes. Her knowledge of that came only from the deceased’s daughter, who, in evidence, referred only to one stroke.
Ms Viney was aware that the deceased missed her daughter’s wedding and participated in a conversation with the accused in which the accused said that missing the wedding was “all my fault”. “[The deceased and accused] had some serious blues over all the days and if I owe anyone an apology it’s to [the deceased] ‘cause (sic) I know how much it really hurt her, its testing her”. The accused went on to say, “I deserve to feel like a shit”.
While it is of little relevance in the issues to be decided by the Court, it would seem that the deceased was unable to travel to the wedding on account of injuries sustained by actions, or by controlling conduct, of the accused.

Ann-Marie Bostick

Further relationship evidence was provided in the testimony of Ms Ann-Marie Bostick, a friend of the deceased. Ms Bostick had known the deceased since she was 14 years of age, and the deceased was a few years older. They were quite good friends. The deceased was known by the nickname “Kimmy”.
The deceased married Ricardo Lucena and had one daughter from that relationship, whom these reasons have already mentioned.
When the deceased and her then husband separated, the deceased lived with Ms Bostick in the Greater Sydney area off and on for some years. The deceased moved with Ms Bostick and her husband to Goonellabah near Lismore in 2017. Ms Bostick and her husband moved to South Lismore, but the deceased did not join them.
Ms Bostick first met the accused in 2017 when she was living at Goonellabah. He stayed with Ms Bostick for four days. The accused and deceased then moved in together about a week after they met. They lived at various places around the Northern Rivers. Ms Bostick and her husband moved to a unit in Grafton after the floods in Lismore in 2022 and stayed in touch with the deceased.
Ms Bostick was aware that the deceased had suffered a stroke and was admitted to Lismore Base Hospital then Ballina Rehabilitation but could not recall the dates other than it was after the floods in 2022.
Ms Bostick maintained contact with the deceased during her relationship with the accused and saw the deceased five or six times between 2017 and 2022. One of those times was a coffee date in Lismore for about 30 minutes. The accused was present, and the deceased was “pretty subdued”.
The deceased and Ms Bostick also spoke by phone several times, sometimes on FaceTime. The accused was usually present and was sometimes nice and sometimes abusive towards the deceased and Ms Bostick.
After Ms Bostick and her husband moved to Grafton, in around October 2022, she did not see the deceased very much. This was the time between the two floods. Nevertheless, Ms Bostick and deceased spoke on the phone sometimes every day and sometimes once or twice per week. Ms Bostick said she could almost always hear the accused in the background.
She recalled the accused saying, “Oh, you can have her. I don’t want her anymore”, and other nasty statements. While Ms Bostick could not recall how many times she had spoken to the deceased between October 2022 and January 2023, she did recall that she last spoke to the deceased around Christmas time.
They would also always speak to each other on their birthdays. Ms Bostick’s birthday was on 3 January, and she does not recall speaking to the deceased on that day. During the last phone call that they had, the two of them spoke about the deceased going to Melbourne, as Ms Bostick and the deceased’s daughter and sister were encouraging the deceased to move in with her sister in Melbourne. The accused was making incoherent sounds in the background of the call.
The deceased was, on the observation of Ms Bostick, more withdrawn after her stroke and had lost “chunks of memory”. She did not seem frailer in her movements.

Aillia Craigie and Ryan Turnbull

Evidence was also given by Aillia Craigie and her partner, Ryan Turnbull. Ms Craigie had been living in Inverell and moved to Ballina with their belongings at a time when their rental was not available. As a consequence, the couple lived at the back of the Salvation Army or Vinnies, across from the bus depot, for five weeks. Ms Craigie could not remember his name, but a man running the Salvation Army let them stay there over Christmas and New Years Eve. They stayed within the Salvation Army premises but outside.
According to Ms Craigie, they left sometime in the middle of January because they obtained temporary accommodation in Lismore. During the time they lived at the back of the Salvation Army building, they made some friends who were Aboriginal in Ballina at the caravan park across from the beach.
On one of the nights whilst staying at the Salvation Army premises, a woman came there to sleep. Ms Craigie did not know the woman and she remained there for only about five minutes, during which time she had a cigarette with Ms Craigie. According to Ms Craigie, the woman was an elderly lady, shorter than Ms Craigie, with black hair.
While they were smoking, they were alone and then the woman’s partner came around the corner. He was swearing and telling her to get up, and said, “Let’s go”. They both walked away, and the man was screaming at the woman.
Ms Craigie testified that she and Mr Turnbull moved to South Lismore the following day.
The morning after the interaction with the man and woman, Ms Craigie and Mr Turnbull called the Department of Housing (sic) at 9am. They left all of their belongings at the Salvation Army premises when they left. They informed Mr Leadbetter, the person seemingly in charge of the Salvation Army, that they had temporary accommodation and that they would leave their belongings there in case they were put back in Ballina.
Asked if Mr Leadbetter had told them that they could not leave their property there indefinitely, Ms Craigie said he had not. Ms Craigie and Mr Turnbull left for Lismore about lunchtime, catching a bus. They did not return to the Salvation Army to collect their property.
Mr Turnbull testified to the facts in question. He had moved to Ballina at the end of 2022. He testified that while they were waiting for a house to be repaired, they stayed at the back of the Salvation Army for a few weeks before moving into temporary accommodation in Lismore.
On one particular night, Mr Turnbull woke up due to a couple arguing. They needed a place to stay so Ms Craigie and Mr Turnbull offered them a place to stay, namely, to share the passageway with them, but they left. He had not met the couple before; it was dark when they arrived; and he never learned their names. The couple were there for only five to ten minutes.
Mr Turnbull had been asleep on the side of the building between the Salvation Army and the Council Chambers in a covered area that was enclosed by a fence, generally referred to in the proceedings as the children’s play area. It had soft flooring.
The man and woman approached the fenced area from the carpark, which is at the rear of the Salvation Army premises adjoining Holden Lane. Mr Turnbull corroborated that the couple, having been offered space at the side of the premises with Mr Turnbull and Ms Craigie, walked off. While the man was saying things to the woman, he could not hear anything that the man was saying.
Mr Turnbull and Ms Craigie moved to their next accommodation the next morning after calling the Department of Housing and receiving temporary accommodation at Lismore.
As a consequence of evidence to which the Court will shortly discuss, it was submitted that the events to which Ms Craigie and Mr Turnbull attest occurred before the night of 2 January 2023. The rationale for such an approach was that the belongings that were left behind by them were not noticed on the morning of 3 January 2023.
If that were the case, the couple to whom Ms Craigie and Mr Turnbull referred would not have been the accused and the deceased. While the theory is an interesting one, it is far more probable that the couple were the deceased and the accused. First, the absence of evidence relating to the belongings of Ms Craigie and Mr Turnbull in the passageway on the morning of 3 January 2023 may result from a number of quite different factors. Simply, people may not have noted or noticed the belongings in the area. Further, Mr Leadbetter, who gave evidence in the proceedings, may have cleaned out the belongings at a very early hour of 3 January or on 2 January.
It is far more likely that it was 2 January 2023. Mr Turnbull and Ms Craigie each gave evidence that they rang the Department of Housing (as they called it) at 9am the next morning, waiting for the office to open. It is not suggested that they rang from the side passage to the Salvation Army building. If they were waiting for the Department to open for business hours, which was the effect of the evidence, then it could not have been on 2 January 2023, because that was a public holiday. Nor could it have been on either 31 December 2022 or 1 January 2023, because that was the weekend.
I am not suggesting that emergency housing may not be contactable over the weekend or out of business hours, but it is clear from the evidence that the business hours of the persons whom Mr Turnbull and/or Ms Craigie contacted were ordinary opening hours. Further, there is no suggestion of any other couple meeting the description provided, who sought and/or obtained a place to sleep in the passageway.
While the demeanour of Mr Turnbull was more polished and impressive, one must be careful to draw inferences as to reliability or truthfulness from the appearance of witnesses, particularly where that appearance does not relate to the manner in which questions are answered. I accept the evidence of Ms Craigie, and I draw the inference that the couple in question were the accused and the deceased. However, it is hardly a matter that is crucial to the findings in this case other than it is evidence of the relationship between the deceased and the accused, about which there is abundant evidence otherwise.

Nicole Bennett

As to the relationship between the accused and the deceased, some of the evidence has already been the subject of discussion in these reasons but evidence was also adduced from Nicole Bennett. Ms Bennett came to know the accused and deceased at Reflections Caravan Park in Ballina where they all stayed after the floods in 2022. Ms Bennett knew the couple for a couple of months and became good friends with the deceased, according to Ms Bennett, because of the way in which the deceased was being treated.

Ms Bennett testified that the accused would “be going off, yelling” at the deceased every couple of days. She could not now recall exactly what he said, but recalled it was abusive.
On 3 January 2023, Ms Bennett recalled ringing the accused and cycling to see the couple at the Tamar Street bus stop. She and the deceased went into the Op Shop, and she bought a dress for the deceased, before returning to the accused who was putting their belongings at the back of the Salvation Army. I understand “the back” of the Salvation Army to be the passageway at the side of the building and between the Salvation Army building and the Council’s “flood” building.
She recalled the accused giving the deceased $40 to go Op shopping. She did not recall the accused giving the deceased a kiss but accepted that was what she said occurred in the statement she gave to police on 5 January 2023 and did not dispute that it had occurred. She simply did not remember it.
Ms Bennett gave evidence, of which there is CCTV footage, that the couple moved their belongings from the caravan park to the Salvation Army area via taxis in a couple of trips. Ms Bennett saw the accused loading their belongings into the taxis at the caravan park at a time before she rode over to Tamar Street. The accused, Ms Bennett said, went back and forth to get the rest of their belongings.
The last time that Ms Bennett saw the accused and deceased was at the side of Salvation Army building with their belongings and they were “just standing there”. When Ms Bennett last saw the deceased, on 3 January 2023, the deceased had a black eye.

Joel Parker

Exhibit J contains a number of statements tendered by consent of the parties from persons who were not required for cross-examination. Joel Parker was a security guard stationed at Reflections Caravan Park and provided a statement on 6 January 2023. He knew the accused and deceased as a couple at the caravan park, and they were there before Mr Parker started as a security guard there.
He described the relationship between the accused and the deceased, whom he referred to as Rob and Kimmy, as “quite loving” and he would see the accused with his arms around the deceased, having a giggle and laugh. He described them as acting a bit like teenagers. He does remember a couple of occasions only when he would hear yelling coming from the accused about which he thought very little.
Mr Parker described the accused as probably being an alcoholic. Most times that he would see the accused and talk to him, the accused would be drinking or would be drunk. On most days the accused passed out on a chair at the front of his caravan.

Events of 2 and 3 January 2023

Before the Court is CCTV footage of the accused and deceased at the reception area of the Comfort Inn Motor Inn. This was at 12.14pm on 2 January 2023. They arrived by taxi and unloaded various belongings.
The CCTV footage shows them speaking to someone who, I infer, worked at the motel and then leaving again with all of their belongings in another taxi at 12.34pm. The conversation between one or other of the couple and the motel employee is not before the Court and is not particularly important but I assume they sought to check into the motel and could not.
That which is more important is that there is no direct evidence as to where the deceased and accused spent the night of 2 January 2023.
There is also CCTV footage (or in taxi camera footage) and a statement in Exhibit J of Peter Lang. Mr Lang is a taxi driver who drove for Ballina Taxis and had done so for about ten years.
At 7.30am on Tuesday, 3 January 2023, his shift started and at 10am he was parked at the taxi rank. He saw the deceased and accused. He described the deceased “struggling with her mobility” and seemed to struggle to step up to the gutter in order to sit at the bus stop. The accused did not help her.
At 11am, Mr Lang was allocated a job by radio and picked up the accused, whom he recognised from the earlier sighting earlier. He described the accused as being a person who looked like he had been in the sun quite a bit, looked to be between 65 and 70 years of age, was fairly tall, looked a bit unhealthy, but did not smell and was “neat enough”.
Mr Lang drove the accused to the caravan park, loaded up about 15 garbage bags and a couple of suitcases, all of which were wet and smelt like wet socks, and drove them to the Salvation Army building in Holden Lane. During the course of the journey, the accused told Mr Lang that he had been evicted from the caravan park and, “it wasn’t my fault, there were five people involved in the fight… No one is going to pick on my wife, and I defended her… when I was evicted security threw all my stuff out of the RV and into the rain”.
Tracey Walsh saw the accused and the deceased between 12pm and 1pm on Monday, 2 January 2023. Ms Walsh is a volunteer at the Bargain Centre on 77 Tamar Street, Ballina, which is a second-hand shop. She noticed the accused walking along Holden Lane, back and forwards - walking between the Salvation Army building and the Council Chamber. When the accused walked back towards the Salvation Army building, Ms Walsh noticed the deceased standing on Holden Lane and saw her walk into the back of the Salvation Army building.
Prior to that, at 6.45am, Mr Stuart Roach, [14] saw the deceased either in the drive through covered area or the adjacent car park, facing Holden Lane. The deceased was alone, walking. She looked unkempt and possibly homeless.
14. Exh J, Tab 6A.
Mr Roach works for Ballina Shire Council, rides a bike to work and leaves the bike in the car park behind what is described as the “flood building”, the building to the south-east of the Salvation Army building, being the building next door to the Salvation Army building along both Tamar Street and Holden Lane. [15] He described the deceased wearing a floral dress with bits of purple, pink and white, possibly shin length. This is the same dress depicted in the CCTV footage that the deceased was wearing on 2 January 2023 and, it seems, the same dress in which she was found on 4 January 2023.
15. Exh C.
Having noticed the female, Mr Roach did a U-turn on his bike in the carpark next to the Salvation Army carpark and noticed a male at the entrance to the Salvation Army building from the Salvation Army carpark area on Holden Lane. The male was talking to the female, but he could not hear anything that was said.
As Mr Roach waited to cool off before entering the Council building, he noticed the time was 6.48am. He went in to have a shower and on exiting the building did not see either the male or the female.
At about 5.30pm on 3 January when Mr Roach was leaving work, he noticed a makeshift clothesline with towels and plastic bags on the ground underneath the clothes line. He also saw the deceased, being the same woman he had seen in the morning, in the rear carpark of the Council property and she was talking to someone but he was unaware to whom the deceased was talking.
There is CCTV footage of each of the deceased and the accused during the course of 3 January.
During 3 January, the accused and Chris Daley exchanged phone calls and text messages. There were five voice calls during the day, and at about 6pm, the accused sent a text message to Mr Daley reading, “if I called U would I ever waste yr time?”.
Counsel for the accused suggested to Mr Daley during the course of cross-examination that Mr Daley and the accused were involved in a drug transaction. Mr Daley denied that proposition, but the number of calls and their frequency, together with the message which has been quoted leaves a significant suspicion that such was the case. If it were the case, it matters very little in the scheme of these proceedings, except that it may explain some aspects of reluctance by Mr Daley in the evidence he gave.
Just after the message which was the combination of a series relating to Mr Daley and the accused meeting up at the hotel, the accused was seen on CCTV footage entering the beer garden of the Australian Hotel. He was wearing green cargo shorts and a white t-shirt, which was the outfit he had been wearing in the taxi that morning and was eventually found with significant blood stains.
The accused left the beer garden at 6.25pm and walked in the direction of the Salvation Army.
At 7.03pm, Chris Daley made a call to the triple zero emergency number, from outside the Council Chambers on Tamar Street. The call is in evidence. He had just passed by the Salvation Army Building on Tamar Street and, in his evidence adduced in the proceedings, was “slowly putting along”. He was travelling slowly because he was taking his dog for a walk and the dog was trotting beside him.
In the call, Mr Daley relevantly said, “There’s a man bashing the hell out of his woman at the back of the Salvation Army in Ballina. … Yeah, I’m just letting you know there’s a woman getting bashed behind Salvation Army in Ballina”. There was some unfortunate confusion relating to the description that it was “at the back” or “behind” the Salvation Army building to which these reasons will refer.
In his oral evidence, despite being pressed, or perhaps because he was, Mr Daley said he could not see anything; he only heard it. A photograph of the Salvation Army building from Tamar Street discloses that the gate to the side passage is capable of being seen through.
Nevertheless, and despite his description on the emergency call, Mr Daley maintained that he only heard it, but it sounded like a man bashing the hell out of his woman. Mr Daley did not recognise either one of the voices. Nor could he hear what the man was saying, but it sounded like forceful murmuring.
Mr Daley did not recall the text message or the phone calls and did not recall seeing the accused in the beer garden of the Australian Hotel on the evening of 3 January 2023. He did recall that he had seen the accused on the street and had said hello.
Mr Daley did not give his name on the emergency call as he did not want to be involved but felt it was necessary to give a “heads up”. In cross-examination, Mr Daley not only denied supplying any illicit drugs to the accused but made it clear that he did not touch methadone, the relevance of which is presumably to avoid any involvement in the findings in the toxicity report.
In the incident which Mr Daley referred to as a man bashing a woman, he heard the woman shout “stop” once or twice, or perhaps three times. He maintained that he did not see anything but heard an argument and heard “a man getting rough with a woman saying ‘stop’”. He could not tell how far inside the timber gates the man and woman were located.
I accept that at 7.03pm a man was bashing a woman in the passageway at the side of the Salvation Army building where, eventually, the deceased was found. I doubt that Mr Daley only heard the events, but ultimately it matters not. I accept that what he observed was properly described in the triple zero call as a man bashing a woman.
About 20 minutes later at 7.20pm, Ms Lesley Hudson-Moon observed a woman through the fence from Tamar Street. Ms Hudson-Moon worked at Australia Post and provided a statement to police on 5 January 2023.
On 3 January 2023 at about 7.20pm, Ms Hudson-Moon was walking her dogs on the footpath in Tamar Street in a westerly direction, which, according to Exhibit C and the maps in evidence, is in truth a north-westerly direction along Tamar Street towards Moon Street. Ms Hudson-Moon walked past the Council Chambers and passed the Salvation Army building.
When she passed the slatted fence that divided the passageway from Tamar Street, Ms Hudson-Moon noticed a woman lying on the ground and she heard a man grumbling and swearing. She yelled out, “Are you – are you okay, mate?”, to which the man replied, “Yeah”. However, in evidence, it was more a groan and gruff noise than a word that was indicated by the witness. Ms Hudson-Moon felt “a little unease” and left.
Ms Hudson-Moon marked her location and movements on a photograph on which she drew, in stick figure form, the woman that she saw behind the gate. [16]
16. Exh K.
Ms Hudson-Moon explained that she could see the head and body of the person lying flat. She did not know what the person was lying on. Ms Hudson-Moon thought that the person was either lying face down or on her side because she could see her back and hair.
The person’s back was bare, and her buttocks and legs were covered. There was no movement from the person. The person was probably half a metre or one metre from the gate and her head was closer to the building on the other side than the Salvation Army premises. The building on the other side was a reference to the flood building of the Council.
Ms Hudson-Moon could see a man who looked like he had been sitting down or crouching near the woman’s feet and was trying to get up. He was grumbling and swearing. She had heard the grumbling while walking along the footpath. The man went silent as soon as Ms Hudson-Moon called out to him to ask if he was okay.
The volume was loud enough for Ms Hudson-Moon to hear it while walking on the footpath and the tone was distressed. The man was a couple of metres from the fence towards the feet of the person lying down. She saw the back of his head as he was facing away. The time of day in what was effectively the middle of summer was such that at that time it was light, and it did not usually get dark until after 8pm or 9pm.
In cross-examination, Ms Hudson-Moon could not say whether the man was on different bedding or set up in a different sleeping place a couple of metres away from the woman. She did recall that the man was “a little bit in front of the woman” and was not lying down.
Referring to her statement, the witness agreed that she had stated that the man was on a different bed or bundle of blankets. Ms Hudson-Moon did not move after he stood up.
Ms Hudson-Moon said she could see the woman under the gate and the man she could see through the slats in the fence. She did not notice any blood around the woman.
Ms Hudson-Moon said, in re-examination, that she was drawn to the area because of the man groaning while getting up and he responded to her question after that. Ms Hudson-Moon was hesitant about moving too close to the fence because of the situation.
Senior Constable Makings read a statement he had prepared. He provided reasons that the Police were delayed in answering the call at 7.03pm about the bashing of the female. At 7.55pm Senior Constable Makings drove past the Salvation Army carpark and building in Holden Lane. He looked into the carpark and saw nothing.
He was looking in the carpark because he had been told that the bashing was occurring at the rear, back, or behind the Salvation Army building. Senior Constable Makings could not see beyond the fence, which was like a pool fence, separating the carpark from the passageway in which the deceased was found.
Senior Constable Makings did not alight the car and did not look into the passageway. Nor did Senior Constable Makings notice any property in the passageway and conceded that he could not see beyond the fence. The time at which Senior Constable Makings drove down Holden Lane for this purpose was 7.55pm.
Between 5pm and 5.30pm on 3 January 2023, Ms Sue Blakey saw what I infer was the deceased chasing after a male who was about 50 metres up the road. [17] The woman had a limp. The male was walking on Holden Lane towards Moon Street. Ms Blakey saw the woman walk out of the rear of the Salvation Army carpark and she was yelling “John” which she yelled a few times. I accept that Ms Blakey may have misheard the name, and it may have been “Rob”. When the name was called out, the male put his arms up in the air and kept walking away.
17. Exh J, Tab 5.
The female was a bigger woman, but Ms Blakey could not see her face. Ms Blakey did notice that the woman found it hard to walk quickly and was limping.
I turn then to the evidence of the two persons who, on 3 January 2023, were working for the Salvation Army. They are Mr Leadbetter and Ms Magnay.
Ms Brigitta Magnay worked as a volunteer at the Salvation Army in Ballina. She provided a statement to police on 5 January 2023 about the events of 3 January 2023. She was working that day, and it was her first day back after the Christmas/New Year break. She worked normally from 9.30am until 4pm, but on that day she worked from 1pm until 6pm.
She noticed a couple of homeless people staying outside the Salvation Army building in the undercover area of the church. She recalled a meeting in which she and Mr Leadbetter went outside to speak to them. Ms Magnay recalled that it was about 1pm and they, being Salvation Army staff, had been told by the Council that they could not have homeless people staying there.
Mr Leadbetter, according to Ms Magnay, told them that they had to move on. It was a man and a woman about middle aged. The woman was about the same height as Ms Magnay and Ms Magnay spoke mostly to her. The man’s voice was slurred, and it smelled like they had been drinking alcohol. Ms Magnay, in oral evidence, made it clear that she had smelled beer before, and it smelled like beer. Ms Magnay recalled that the man had an accent. The couple had a lot of belongings.
After being told to move on, the man was very angry and was very abusive in his language. He said to Mr Leadbetter that he should be able to stay there and that they were not doing any harm. The man kept talking for about 15 minutes. He was talking loudly and swearing, while the woman was very quiet. The woman said to Ms Magnay that she was sorry and that they would go. The man told the woman that it was her fault. He was very angry and loud.
Ms Magnay and Mr Leadbetter remained outside for 30 minutes talking to the couple, before they went back inside the building and locked the door. The last time Ms Magnay saw the man and woman, they were still in the courtyard. She did not notice any bruising on the woman’s face.
In cross-examination, Ms Magnay stated that Mr Leadbetter had told her that he had already spoken to the couple earlier in the day. She was not aware of any other people staying in the same area outside the Salvation Army premises. There were other people staying there regularly in the past, up to some weeks ago, but she could not recall whether there was a couple who stayed in the same area on or just before 2 January 2023.
Ms Magnay recalled that both the man and woman were slurring their words on 3 January 2023. She did not remember seeing any bottles of alcohol. When asked whether it was possible that what she smelt on the couple was not alcohol, but because they had not showered, she said that the smell of alcohol was “quite distinctive”. She had the impression that it was the smell of beer. While Ms Magnay does not have experience detecting the smell of beer on people who are intoxicated, she has had experience of being in the presence of people who had been drinking. Ms Magnay does not drink.
Ms Magnay did not recall whether the man had said to Mr Leadbetter that they would like to leave their property there for the short time and they had organised storage. She did recall that Mr Leadbetter was going to help the couple move their belongings the next day. Ms Magnay agreed that it was possible that she may have perceived that the man was angry because he was talking in a loud voice. The man was taller than her, and Ms Magnay is about five foot seven, but she did not think the man was over six foot.
On 3 January 2023, it was Ms Magnay’s first day back at work, as stated. The Salvation Army closed over the Christmas break from 23 December 2022, and she did not know if it had opened on Monday, 2 January 2023.
Peter Leadbetter was, effectively, in charge of the Salvation Army, relative to others in that building. In December 2022 and January 2023, Mr Leadbetter usually attended the premises on Tuesday where he picked up bread and distributed it.

Mr Leadbetter was volunteering on 3 January 2023, and he spoke to a police officer on 4 January 2023 about events that took place the day before.
Mr Leadbetter could not recall what time he commenced working on 3 January 2023. He recalled that Ms Magnay was also volunteering on that day together with another volunteer who was helping pick up toys and bread.
The accused and deceased introduced themselves to Mr Leadbetter when they came in from Holden Lane. He had first seen them in the children’s play area (the area with the soft flooring). In the conversation, Mr Leadbetter learnt from the accused that they had been put out of their caravan and were looking for somewhere to put their belongings temporarily. They had a shopping trolley with them and Mr Leadbetter did not see what was in it.
Mr Leadbetter told them at the time that, “we didn’t really like people camping up the side of the building or at the back of the building because we’ve had people stay there in the past and – you know, without permission, and they made a lot of mess, and we ended up – ended up having to clear it up”.
Neither the accused nor the deceased said anything in reply, according to Mr Leadbetter. Mr Leadbetter noticed that the deceased had a black eye, and she did not seem “all that well”. The conversation lasted about 15 minutes and Mr Leadbetter returned inside. He did not notice where the accused and deceased went.
Mr Leadbetter saw the accused and deceased later that day. The deceased was sitting on the edge of the garden outside the gated area and Mr Leadbetter brought a chair for her. The accused was not there.
Sometime in the early afternoon, Mr Leadbetter saw the accused and deceased on the concrete area at the side of the building with a lot of clothes. The accused said that “they were going to get a van the next day because he’d arranged for a storage shed for their belongings” and Mr Leadbetter offered to do it for free with his box trailer. The accused agreed. The conversation occurred in the carpark area. Mr Leadbetter could not recall whether Ms Magnay or the other volunteer were there with him.
The accused went inside the premises to charge his phone and picked it up later. The building was locked between those occasions. Mr Leadbetter had left the premises and returned when it was still light outside. He then gave the accused his phone back. Mr Leadbetter then left the premises and did not see where the accused and deceased went.
Mr Leadbetter visited some friends in East Ballina that evening. He called into the Salvation Army premises on his way back. It was about 9.30pm. Mrs Leadbetter corroborates that they went to friends and returned home via a stop at the Salvation Army.
When they arrived at 9.30pm, Mr Leadbetter testified that it was dark, and he parked in the disabled carpark. As a consequence, the lights from his car would have shone down the passageway where the deceased and accused were staying and where their belongings were located. He turned his main lights off and left the parking lights on and alighted the car. He called out to the accused and thought he heard the deceased calling out to the accused. He also thought he heard a sound that was not a word coming from the deceased.
He testified that his hearing was all right in January 2023. Mr Leadbetter called out to the accused again and thought he saw a dark figure standing in the concrete area. The figure sounded like the accused to whom he had spoken earlier in the day and the manner of speaking was “quite aggressive and yelling and threatening”.
Mr Leadbetter was expecting the accused and deceased to be there that evening because they had all their belongings there. Mr Leadbetter then went home and when he returned to work in the morning, police were in attendance.
In cross-examination, Mr Leadbetter agreed that his memory at the time of making the statement on 4 January 2023, is as good if not better than it was at the time he was giving evidence. He maintained that the first interaction with the accused and the deceased was the morning of 3 January 2023.
Mr Leadbetter was asked about a young couple that had stayed at the side of the Salvation Army building the week before who had left a mess. The woman was Aboriginal. The male was big and quite aggressive too. Mr Leadbetter was required to clean up broken Christmas decorations, like glass baubles. The couple left some property behind and threatened Mr Leadbetter after he told them that he would leave their property out the front.
Mr Leadbetter spoke with the accused in a normal manner. Before the nighttime the accused did not get angry, and he appeared sober. The deceased appeared quite docile and mentally or cognitively a bit slower or not quite normal. She did not appear intoxicated. Mr Leadbetter could not recall whether either of them were slurring their words during the day.
Mr Leadbetter went on a bread run and spoke to the accused and deceased after returning from his bread run. The couple explained that they had put their property out because it was wet, and they were trying to dry it. This was the context for the conversation about taking the property elsewhere the next day. Mr Leadbetter did not agree that there was an understanding between them that the accused and deceased would stay the night as there is a contrary Salvation Army policy.
Mr Leadbetter was shocked at the change in the demeanour of the accused when he returned in the evening. When the accused yelled back in an aggressive or threatening manner, Mr Leadbetter formed the opinion that the accused may have been drunk. This was based on the change in demeanour. He did not perceive any aggression between the accused and the deceased at the time. He also did not perceive any need to call police or that there was any threat to anyone.
To the extent that there is inconsistency between Ms Magnay and Mr Leadbetter, I prefer Ms Magnay. First, 3 January 2023 was Ms Magnay’s first day back at work. She could not have been mistaken about the date.
Secondly, as Ms Magnay started at 1pm, she would have more readily recalled that the meeting with the deceased and accused occurred shortly thereafter. Ms Magnay did not drink and may, for that reason, have noticed the smell of beer more readily than Mr Leadbetter.
Thirdly, and more fundamentally, it was clear from the evidence of Mr Leadbetter and his demeanour that he was unreliable as to times, dates and details. Whereas Ms Magnay was much better informed on the question of details, times and dates.
It is notorious that human memory will merge the details of different meetings occurring in quick succession. Overall, to the extent that there is inconsistency between Ms Magnay and Mr Leadbetter, I prefer Ms Magnay and accept her version of the meeting just after 1pm on 3 January 2023.
As to other matters, there are a number of comments that need to be made. First, the reference by Mr Leadbetter to the cleaning of Christmas baubles in an area that has soft flooring and is generally referred to as the “children’s play area” is likely to be a reference to cleaning the Christmas baubles either immediately after Christmas or New Year’s Eve. The likelihood that Mr Leadbetter would allow glass or hard plastic to remain on the floor of a children’s play area for any length of time, given his nature, is remote. It may well be that the Christmas baubles had nothing to do with Mr Turnbull and Ms Craigie.
Secondly, as to the cleaning up of the belongings of Mr Turnbull and Ms Craigie, Mr Leadbetter may have performed that task even before Mr Turnbull and Ms Craigie moved from the side passageway. As the belongings were moved only to the front of the premises, it is possible that there was thought to be nothing untoward by either Mr Turnbull or Ms Craigie about the movement of the goods within the Salvation Army premises.
Lastly, Ms Magnay was speaking predominantly to the deceased. It may well be that the discussion with the deceased was quite separate from the discussion involving Mr Leadbetter. The testimony of Ms Magnay was, at least in part, to the effect that the accused was aggressive towards the deceased. Further, the aggression at 9:30pm from the accused may have been, if it were the case, that the accused had become aware that the deceased had died and di not want Mr Leadbetter to become aware of the situation.
The only other comment that is necessary in relation to the evidence of Ms Magnay and Mr Leadbetter is that, at 9.30pm, when Mr Leadbetter called out to the accused and down the side passageway, having shone his headlights down the passageway when he arrived, the deceased did not respond at all to Mr Leadbetter. Mr Leadbetter said that he heard what he thought was the deceased calling out to the accused, but it was not said with any conviction. Indeed, Mr Leadbetter made clear in his answer to whether he heard the deceased calling out that he “might be wrong”. It was not a word, but some kind of noise which he was incapable of emulating.
As to the difference between Ms Magnay and Mr Leadbetter about the meeting, again, it does not seem to be crucial. If it is relevant to anything, it is relevant to the accused’s mood and possibly the relationship between him and the deceased. But in truth, the relationship between them is not particularly controversial.
It seems fairly clear that the relationship was a turbulent one. It was a relationship in which there were moments of care and closeness, and other times significant violence perpetrated by the accused against the deceased. It is also clear that the mood of the accused could change dramatically and over a very short period of time. It is more than merely possible that the accused was aware by then that his partner had died and was anxious about discovery or as to what he should do.
Some evidence was adduced of a telephone call between the accused and the deceased relating to what seemed to be either an alibi or evidence of innocence relating to a different and earlier charge. The telephone call was made by the accused from prison, and therefore, recorded.
At the end of the phone call, the accused said to the deceased, if she did not organise that which he had asked her to do, he would kill her. I am unwilling to take that phone call into account in determining the relationship between the couple, nor the state of mind of the accused. It seems to be a less than serious comment and not one which I take to be, in truth, a threat to kill.
Other than the evidence already outlined, there were a number of police officers who were called to attest to what occurred at the police station at about 12.45am on 4 January 2023. While there was cross-examination about the details of the conversation, the difference between them seemed to be insignificant.
I accept that the accused came to the police station to report the death. There was an exchange as to whether the accused was reporting for bail, and it is unclear whether that comment was flippant. It was certainly made before anyone was aware of the death of the deceased.
Police officers then accompanied the accused to the scene in the side passageway of the Salvation Army building, the extent of which was recorded on bodycam and available to the Court. Evidence of what occurred at the police station was adduced from Senior Constable Andrew Stewart, Constable Daniel Pyett, Senior Constable Makings, who, as stated, had responded at 7.55pm to the report of a bashing, and Senior Constable Leigh Blundell.
Body worn video, as earlier stated, was used thereafter to record the interaction between the accused and police. The accused directed the police to the side passage of the Salvation Army building and to the body of the deceased. During the course of the conversations, Senior Constable Stewart said to the accused that the police “were called to a domestic incident here a couple of hours ago”, to which the accused replied that, “there was no domestic incident”. It was then put to him that there was screaming heard coming from the area and the accused said, “Yes, we had an argument”. The argument, according to the accused, was three hours prior, this conversation occurring approximately at 12.45am on 4 January 2023, or just after.
After the statement about the argument, Senior Constable Stewart warned the accused that he did not have to say or do anything, that it may be recorded and may later be used in evidence, which the accused understood. Thereafter, Senior Constable Stewart asked the accused about the blood on his shirt and his hands, to which the accused replied that it was his blood and that he bruised easily. Senior Constable Stewart remarked that there were no cuts on him.
The accused was asked what the argument was about, but said he could not recall. He was also asked about the blood on the deceased’s face and how that came about, to which the accused replied that he did not know. The same answer was given in relation to bruising around the cheekbones and her eyes. At that point, Senior Constable Stewart took the commendable course of bagging the accused’s hands so that they could be forensically analysed later.
The accused was asked again about the blood on his shirt and stated that he did have a couple of cuts on his hands and was asked about marks on his knuckles and replied that he had been working hard all day, which was a reference to the moving of his property and clothing.
The accused also said that he did not know what time the deceased had passed away and was asked what he did after he realised that she was deceased, and he replied that he had “walked out here and came to the police station and reported it”.

Expert witnesses

Crime Scene Officer

Crime Scene Officer Nicole Greenway is attached to the Lismore Crime Scene section and provided a statement dated 18 November 2023, which annexes 260 photographs. [18] There is also a computer-assisted draft diagram of the Salvation Army premises. [19] The diagram in Exhibit C is annexed to these reasons.
18. Exh N.
19. Exh C.
CSO Greenway attended the crime scene at 5.05am on 4 January 2023. She photographed items and conducted presumptive tests at the site, which were later the subject of confirmatory tests for blood. She and Sergeant Wicks took swabs to send for DNA analysis.
The statement of CSO Greenway was provided at a time when some of the findings were only interim. By agreement between the parties, those findings have been updated.
In accordance with the usual practice, markings were placed in the area to record from where particular items were taken or seen. As can be seen by an examination of the annexure to this judgment, markings A, B, C and D are in the carpark off Holden Lane outside the fence to the soft-floored area. There are no relevant items in the soft-floored area under the awning, also called the children’s play area.
There is a fence between the children’s play area and the concreted area in which the deceased was located. Moving roughly from north to south, from Holden Lane to Tamar Street, there is reference in the annexure to a “Coles” trolley and there is the marking E on the gatepost of that separating fence. There is then a cluster of markings F, G, H, I and J around air conditioning unit 1; nothing around air conditioning unit 2; behind air conditioning unit 3 was located a doona with blood stains; and east of that area, the deceased was located and there are markings M, K and L.
Markers A, B and C are positions of passive blood drips in the carpark outside the fenced area and are the blood of the deceased. Marker D is irrelevant as it is a blood stain from Mr Turnbull.
Markers A to D relate to photographs 81 to 90 of the crime scene photographs and markers A, B and C are passive blood drips measuring 2cm, 1.5cm and 1 cm in diameter respectively.
Marker F is a blood stain on the northern most shutter on the Salvation Army building wall. The blood stain is approximately 2cm long and it is the blood of the deceased.
Marker H was unable to be profiled by DNA because the sample was at too low a level but is a passive blood drip on the concrete of approximately 1cm in diameter. Marker J is the side of the air conditioning unit, a tissue, found on the ground, and a small blood stain on the wall. The blood is the blood of the deceased in each case.
Marker K positions blood stains near the deceased’s body over a total area of 130 x 130 mm and these are the blood stains of the deceased. Marker L is a black Nokia phone from which no DNA result was obtained or available.
Marker M relates to blood stains on the fence, seen at crime scene photographs 119 to 122 and is approximately 17 mm in length. The deceased is the major contributor of the material but there is also a minor contributor from whom no DNA could be extracted because it was too low for comparison purposes.
As earlier stated, the deceased’s hands were also swabbed. They can be seen at photographs 37 and 11. Blood was found on both thumbs and all fingers, which is the blood of the deceased, and the accused is unable to be excluded from the DNA as a minor contributor on three fingers. The backs of the hands and palms were not tested for blood but consist of a DNA mix of the accused and deceased.
The swab from the deceased’s chest and neck was not tested for blood but the DNA was a mix of two. The deceased was the major contributor. The deceased’s dress was significantly stained with blood on both the front, back and on the arms. There are a significant number of photographs of the dress both from the crime scene and from the autopsy photographs.
The blood stains to the front of the dress are all of the deceased except that shown at crime scene photograph 246 which is a mixture of the accused and the deceased, and that shown at photograph 252 which is only the accused. The blood stains to the back of the dress are all of the deceased.
Other swabs were taken of the accused’s hands and feet, but these were not tested for blood. The DNA returned a mix profile of both the accused and the deceased.
The accused’s white t-shirt with a black fox motive was swabbed and there was found to be blood at the red stain that was approximately 100 x 90 mm. The DNA is a mix of at least two individuals, being the deceased and the accused.
The olive-green cargo shorts, which the accused was wearing on 3 January 2023, but was not wearing in the police station when he reported the death of the deceased, had blood stains on the front and the back. As to the front of the shorts, there were five blood stains, only one of which was the blood of the accused. [20]
20. Photograph 217.
Further, photograph 219 shows the deceased’s blood plus a minor contributor which was unsuitable for comparison. All of the other stains were only of the deceased. On the rear of the shorts there were six blood stains two of which were unsuitable for comparison and all of the others were identified as the deceased.
At Marker G on the diagram there was a yellow umbrella which had blood stains. Photograph 189, being segment A1, is the blood of the accused while the other six blood stains were all of the deceased.
The white doona that was found behind air conditioning unit 3 had the blood of the deceased on it plus an unknown individual on one side, and on the other side, there were four blood stains, one being of the accused and deceased that was mixed, two being of the accused and one being of the deceased.
While CSO Greenway was prepared to express an opinion about some of the drops as being a “passive blood drip”, she readily admitted that she was not an expert in the interpretation of blood stains but is capable of describing their shape, size and distribution.
It is possible, according to CSO Greenway, that the deceased was injured and standing or moving in the area of the carpark or vice-a-versa. However, CSO Greenway did not find any evidence of further blood staining in the carpark.

Rather, it is a real possibility that the deceased was lying on plastic through which the Professor conceded people could not breathe. Nevertheless, even in relation to a mattress, a person could be further compromised by being face down because of difficulty with breathing and the added effect of methadone.
As to the 2019 overdose, Professor Duflou was unaware of any blood tests to determine the nature of the drugs ingested in 2019. The Professor could not say whether the deceased had a tolerance or not to opioids in 2019 or afterwards. Such a tolerance depends more on how frequently the drug is taken rather than how much of the drug is taken. The deceased could have used any opioid, including methadone, and responded as she did to the naloxone.
Professor Duflou stated that methadone was a possible cause of death. This would be so especially if there was no history of habitual use. Cross-examined about the study in the textbook, Professor Duflou did not know how the 59 people in the study were distributed between 0.06 and 3.09 (the extremes in the study). He does know the mean and the median, which, on his analysis, would mean that there were more people under 0.28 than above it who died from methadone overdose.
As to the coronary artery disease, Professor Duflou reiterated that the deceased’s condition was at least moderate and certainly not mild. He accepts that, on its own, it did not cause death.
However, he made clear that any physical or mental stress, possibly including the application of numerous blows to the head, would increase the chance of sudden death due to the heart disease. This is particularly so if someone has occlusions that are 50% or greater in their arteries, as well as low normal left ventricular systolic function, abnormal heart septal wall function and mild diastolic dysfunction. It would also be exacerbated by the ingestion of methadone.
Professor Duflou agreed that the pattern of a sustained assault with numerous inflicted blows causing bruises, abrasions and lacerations but not skull fracturing is evident from the post-mortem. He also agreed that it is a possibility that those injuries, combined with the pre-existing heart disease, could create an arrhythmia and kill the deceased and that possibility could be a substantial contributing cause to her death. [34] Questions were asked of the blockages or partial blockage in the airways and the effect of the neck injury and its cause. Ultimately, Professor Duflou agreed that whatever be the mechanism of death the craniofacial trauma may have been a substantial contribution to the cause of death. [35]
34. Tcpt, p 305-306, ln 1.
35. Tcpt, p 315 ln 28-32.
It is also possible, according to Professor Duflou, that the craniofacial injuries may not have contributed to the cause of death. Professor Duflou did not describe the bruising and swelling and lacerations to the right eyebrow as severe head injuries because they did not represent a risk of life. Further, they did not cause any damage to the brain of any significance. Further again, there are no fractures of facial bones, which would be an indicator of force.
Lastly, in relation to Exhibit Z, Professor Duflou expressed the opinion that there is ample evidence that people prescribed methadone can and do die from the methadone alone.
It is necessary to deal with the study to which each of the experts were referred cited in the textbook. [36] The textbook refers to a study and cites it without independently confirming its accuracy. The study is Exhibit Z. [37]
36. Randal C Baselt, “Disposition of Toxic Drugs and Chemicals in Man”, 12th ed, Biomedical Publications 1 June 2020.
37. Exh Z, “Methadone and drug addicts”, Karen Worm, Anni Steentoft, and Birgitte Kringsholm, International Journal of Legal Medicine (1993) 106; 119-123.
The study is of drug addicts who had died in Copenhagen city and were analysed for methadone in 1981 and 1989. In 1981, 94 cases were analysed of which 16% were found positive for methadone, and in 1989, 70 cases were analysed of which 37% were positive for methadone.
Methadone alone was found to be the cause of death in 50% more cases in 1989 than in 1981.
A drug addict is defined, for the purposes of the study, as a person who abuses opioid and/or analeptics and/or hallucinogens. Persons who have been prescribed the drugs primarily for the treatment of illnesses and have then become drug abusers were not included in the study.
Only half of the drug addicts found positive for methadone had been under a methadone treatment program. The most frequently occurring other substances were morphine and benzodiazepine. Alcohol was found in 30% of cases.
Of the methadone positive drug addicts, in 1981, there were fifteen of which six are said to have died from methadone alone. In 1989 there were twenty-six of which fifteen were said to have died from methadone alone. There were three and six in 1981 and 1989 respectively who died from a combination of methadone and other drugs or narcotics.
The figures on which counsel relied (and on which the experts commented) in dealing with methadone concentrations derive from Table No 2 in the study. It is described in the following way:

“Table 2 shows the blood concentrations of methadone in deceased drug addicts from 1984-1989 compared to blood concentrations from living persons from 1987-1990, derived mainly from traffic cases but also from cases of violence. The median concentration of methadone in blood from deceased drug addicts was 0.3mg/kg where the blood alcohol concentration was zero and 0.2 with BAC greater than or equal to 0.50 mg/kg, while the corresponding values for living persons were 0.1 and 0.1 respectively.”

The purpose of the study was a comparison of methadone concentrations in living and dead addicts. Nevertheless, of the 59 persons who had died, with no blood alcohol content, the median was 0.28 mg/kg, the first quartile was 0.19 and the third quartile was 0.43. The mean was 0.43, the minimum was 0.06 and the maximum 3.09.
Each of the figures was in milligrams per kilogram. Blood is denser than water (depends on an individual’s conditions, but about 5%). One kilogram of blood is slightly less than one litre of blood, but not enough to be significant. As already stated, the methadone concentration for the deceased was 0.08 mg per litre, which, converted to accommodate the density of blood (a factor of 1.05), is approximately 0.084 mg per kilogram.
Each of Dr Cala and Professor Duflou accepted that as a consequence of the study and figures in Table 2, a person could die with 0.06 mg per kilogram methadone concentration. But the purpose of the study is a comparison with the living addicts. It says nothing about the person or persons who died.
What is clear is that 0.084 is less than half of the first quartile, so we are talking about a study of 59 in which one or possibly two persons died with a concentration of less than 0.084. We simply do not know. Nor are we aware of what the circumstances were of the person who died at 0.06 mg per kilogram.
Thus, while it is true that theoretically a person could, and a person has, died from a concentration of methadone which is less than that consumed by the deceased, a death at that concentration is exceptional and, as the experts make clear, most probably relates to a person who has not before taken opioids of any sort on a regular basis or not methadone.
We know, from the medical records, that the deceased had no known allergies. She was not allergic to opioids, including methadone.
We also know, or the experts have deduced, that the overdose in 2019 was as a result of the use of opioids. The experts have deduced that because of the effect of the naloxone on the deceased’s then difficulties.
There is no evidence of when, on or before 3 January 2023, the deceased consumed methadone. We are simply in the dark in that respect.
We know that the deceased consumed opioids in 2019 and we know that the deceased consumed opioids (methadone) prior to her death. The necessary inference is that the deceased was a user of methadone and/or other opioids.
There is no suggestion and certainly no evidence that the deceased was a naive user of methadone and every reason to presume that the use of opioids in 2019 continued until the present and explains the presence of the methadone. On the figures in Exhibit Z, even without knowing the circumstances of the persons who died with very low levels in their blood, being those dead drug addicts with a concentration of less than or equal to 0.08 mg per litre, it would be quite exceptional for the deceased to have died from the methadone alone.
Further, given her previous use of opioids, the conclusion of the Court is that the deceased, on the evidence, is far more likely to be an experienced opioid user. The deceased was mixing in a drug environment, including with the accused.
The inference of drug environment is significant: the accused acting in such a way as to warrant arrest and initial refusal of bail for drug dealing; [38] the number of phone numbers that included the deceased’s involvement; and the conversations on 3 January between the accused and Mr Daley. In those circumstances, the inference that the accused was involved in drugs on an ongoing basis between 2019 and 2023 is drawn. Thus, an inference that the deceased was not a naive user of opioids or methadone is available and drawn and, in that circumstance, it is most unlikely, and not reasonably possible, for the methadone to be the sole cause of death.
38. Tcpt, p 67, ln 24-28.

Consideration

Throughout the above analysis, the Court has thought to make a number of comments as to that which is available on the evidence in the proceedings. It is necessary to comment a little on the evidence of the expert pathologists and the extent to which it is said to be different.
Each of them, on the basis of the findings in Exhibit Z, suggest that it is theoretically possible for a person with a concentration of 0.08 mg per litre of methadone in their system to die from the methadone. Each of them expressed the view, or implies it, that the person would need to be a new user of methadone or opioids and/or a naïve user of methadone or opioids.
Each of the experts makes clear that the craniofacial injuries would not, of themselves, result in death. Each of them makes clear that the brain injuries, in so far as they are evident, would not result in death. Each of them expresses the view that there is no physical evidence of a recent stroke or one immediately prior to death.
The differences between the experts are mostly definitional. Professor Duflou says that axonal injury manifests after a minimum of 30 minutes. Dr Cala agrees with that and makes clear that, in his experience, one ordinarily needs a couple of hours. There is no inconsistency between those two opinions.
Each of them also expressed the view that there is greater than 50% occlusion of the vessels of the heart and each of them makes clear, of itself, that would not cause death. Pathologists on autopsy often determine the “cause of death” by a process of elimination and inclusion. If there is an obvious mechanism by which the person died, e.g. a bullet wound or knife wound to the heart, the mechanism is relatively easy. Where, as here, the medical reason for the death is not as clear, a process of elimination occurs. It is necessary to deal with the use of terms.
Doctors and lawyers sometimes utilise the term “cause of death” in very different ways. Similarly, the term “mechanism of death” can be used in two very distinct ways.
The pathologists in this case often utilised the term “cause of death” to mean the medical reason that death occurred. As earlier stated, in law, the cause of death is any operating and substantial cause of death. If a person is thrown off a balcony of a 20-storey building, the person may die from a heart attack on the way down or die from the injuries sustained when the person hits the ground. These are medical causes of death. In law, the cause of death is the act of the person who threw the deceased off the balcony.
In relation to the mechanism of death, this can mean the physical mechanism of death (hereinafter, to the extent necessary to refer to it, referred to as “the physical mechanism”) being the mechanism by which the injury that caused the death was inflicted. In contrast, the medical mechanism of death (hereinafter “the medical mechanism”) refers to that which was earlier described as the pathologists’ “cause of death”. An illustration will suffice.
A deceased may have died from brain injuries sustained. Such is the medical mechanism of death. The brain injury may be inflicted either by a series of assaults to the head or a fall down some stairs, each of which, if it were found, would be the physical mechanism of death.
Neither the physical mechanism nor the medical mechanism of death is an essential finding on a homicide charge. It is a helpful finding, but not essential.
Thus, if a person disappears and the body is never found, the perpetrator may still be found guilty of murder, notwithstanding that the physical mechanism of death or the medical mechanism of death is unknown. Such a case may be difficult to prove, but it is theoretically possible and has occurred.
The issue was discussed by the Court of Criminal Appeal in R v PL. [39] Spigelman CJ said:
39. R v PL [2009] NSWCCA 256 (Spigelman CJ with whom McClellan CJ at CL and RA Hulme J agreed).

“46 The legal proposition at the heart of the Crown case on Ground 3 is that it is not necessary to establish a precise act causing death in order to establish either murder or manslaughter. The respondent did not challenge the force of the authorities upon which the Crown relied in this respect.
47 The clearest statement in support of the Crown’s legal proposition is perhaps that of Ackner LJ in Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705 at 710:
‘[T]his reference raises a single and simple question, viz: if an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The answer to that question is ‘No, it is not necessary to found a conviction to prove which act caused the death.’ No authority is required to justify this answer, which is clear beyond argument …’

48 That was a case in which the Crown could not prove which of two acts by the accused caused death – although one of them did so. (See also R v McKinnon [1980] 2 NZLR 31.) To similar effect are authorities which indicate that it is not necessary to identify a particular act which caused death where an accused had committed a series of acts, such as a long course of beating, where the fatal kick or blow cannot be identified. (See, eg, R v Ryder [1995] 2 NZLR 271.)
49 As Brennan J said in Royall v The Queen (1990) 172 CLR 378 at 404-405:
‘In most cases of alleged murder, a precise identification of the act which causes death is attempted in order to furnish a foundation for the inference of the mental state with which that act was done. But where the accused has engaged in a course of violent conduct after which the victim does something that directly causes his or her death, it is not essential in point of law to identify which act or series of acts in the course of that conduct caused the victim to take the final fatal step provided the jury be satisfied on the whole of the evidence that some or all of those acts caused the death and was accompanied by one of the mental states prescribed by s 18(1)(a).’

50 There have been numerous cases, generally based on circumstantial evidence, where a particular act causing death could not be identified:
Where no body was found. (R v Onufrejczyk [1955] 1 QB 388; R v Horry [1952] NZLR 111; Weissensteiner v The Queen (1993) 178 CLR 217; Burrell v The Queen [2007] NSWCCA 65; Burrell v The Queen [2009] NSWCCA 193.)
Where a body was in such a state of decomposition that a cause of death could not be determined. (R v Robertson (1913) 9 Cr App R 189; Keir v The Queen [2007] NSWCCA 149; Kaliyanda v The Queen [2007] NSWCCA 300.)
Where the Crown case was that the accused either committed the act causing death or was an accessory. (R v Swindall (1864) 2 Car & K 230; 175 ER 95; R v Thatcher [1987] 1 SCR 652; R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101.)
Where a single cause of death could not be identified. (R v Butcher [1986] VR 43 at 55-56; R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [26], [61], [66].)”

The injury evidenced in the photograph taken on 27 December 2022 was, by comparison with the state of the accused at the time of her death, quite minor. It was an assault that occasioned actual bodily harm. [40] But the severity was nowhere near as significant as the injuries that were evident at the time of death.
40. Crimes Act 1900 (NSW), s 61 cf s 59.
The relationship evidence establishes that the relationship between the accused and deceased was volatile and often violent. It is unnecessary to utilise tendency evidence, and the evidence establishes that the relationship between them was one in which, from time to time, the accused engaged in domestic violence against the deceased. Some of that violence must have been serious. The inference available from the circumstances surrounding the non-attendance of the deceased at her daughter’s engagement and/or wedding suggests that the accused, who admitted the deceased’s non-attendance was “his fault”, had engaged in violence such that the deceased was not able or not willing to appear publicly.
The evidence of the deceased’s sister, of her daughter, and of those that knew her establishes that the accused was not only violent but also controlling of the deceased in their relationship. While the deceased had a blackened lower eyelid on 27 December 2022, there was no further development of any injury associated with the assault of 26 December 2022.
By the time the body was examined, the deceased had injuries evidencing multiple blows to the head, both the face and back of the head, the neck and other parts of the body. The injuries have been recited earlier.
Professor Duflou suggests, even qualifying the injuries by the possibility of development of the injury already sustained on 26 December 2022, that there were multiple blows which cannot be counted and a minimum of five to the face. The calculation did not include the redness in the bridge of the nose nor the significantly greater bruising in the left cheek bone. Each of the pathologists express the opinion that there were numerous blows, which cannot be counted. The damage inflicted was serious.
I accept Mr Daley’s evidence that at or about 7.03pm, a man was bashing a woman in the side passage of the Salvation Army. Leaving aside any fanciful suggestion, that man must have been the accused, and the woman must have been the deceased.
It is not clear whether that was the only assault on the night or whether there were subsequent assaults. It matters very little.
We know the attitude of the accused to being homeless. We know that attitude from the telephone conversation from prison with the deceased. The Crown relied upon the telephone conversation for the threat to kill, which I have treated not as a serious threat, but the telephone conversation also shows an attitude to being homeless, which no doubt impacted the accused.
The accused and the deceased were rendered homeless by the floods in Lismore. They were provided temporary accommodation in a caravan park. They were ejected from the caravan park because of the violence of the accused. I suspect, consistent with one of the conversations that is recorded, that the accused blamed the deceased for his violence and their ejection.

It matters little. Motive may render more rational the conduct of people but does not prove guilt. Lack of motive, if proved, may cast serious doubt on guilt.
No one other than the accused had a motive to bash the deceased. It cannot be seriously suggested that the bashing of the deceased did not occur at the hand of the accused. There may have been other motives. There were statements by the accused that their relationship had finished, and the deceased should be collected, but I am not convinced that those statements, even though reiterated on 22 December 2022, were made at a time that was relevant to this incident or made to be taken seriously. It may be that the deceased proposed move to Melbourne is consistent with a split.
The totality of the events that occurred in the side passageway of the Salvation Army on the night of 3 January 2023 are known only by the accused. However, it is not appropriate to draw inferences from the failure of the accused to give evidence. [41]
41. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [27] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
It is for the prosecution to prove its case beyond reasonable doubt. Nevertheless, the inference that it was the accused who assaulted the deceased is irrefragable and there is no rational or reasonable inference available to the contrary.
The events prior to 3 January 2023 are not particularly important in the determination of the matters before the Court. Nevertheless, the deceased was seen throughout 3 January 2023 without any additional injuries. This includes the descriptions by Ms Magnay and Mr Leadbetter. While the deceased walked with a limp, the CCTV footage of the deceased does not show her to be particularly unstable.
As stated, a bashing occurred at approximately 7.03pm. I also accept that at 7.20pm Ms Hudson-Moon saw the deceased lying on the ground motionless.
Some attention was paid during the course of submissions as to whether the deceased’s back was truly bare or whether the pot plants at the slatted gate may have given that impression. It is fair to say that one would not ordinarily describe the deceased’s skin as dark or brown. However, the colour of her bare back was not the subject of evidence.
It may well be that the back was not bare, and that Ms Hudson-Moon’s vision of the deceased’s back was obstructed by the pot plants or other items. Nevertheless, I accept that the deceased was not lying on her back because all that could be seen under the gate of the deceased’s head was her hair. As a consequence, she must have either been lying on her side facing towards Holden Lane or lying on her stomach. Ms Hudson-Moon suggests that she may have been lying on a tarp, which may describe the plastic bag that was under the deceased when the police arrived. There was no movement or sound from the deceased at 7.20pm.
Unfortunately, the attendance of the police at 7.55pm is unhelpful, because of the misunderstanding as to the location of the “bashing”. The police were unable to see past the fence dividing the children’s play area from the carpark and did not investigate that area.
The only other mention of the deceased was that Mr Leadbetter thought he may have heard the deceased call out, but Mr Leadbetter concedes he may have been wrong.
While I do not consider that the precise time of death is particularly important in these proceedings, I do not consider the description of Mr Leadbetter of hearing what he thought might have been the deceased at 9.30pm reliable. It is likely that the deceased died at or about 7.20pm. She may well have been deceased when Ms Hudson-Moon saw her. But it may be that she died just after 9:30pm.
The circumstance that there are passive blood drips at various points in the crime scene does not affect the finding that the assault was the cause of death. A sustained assault of that kind will invariably occur over an extended area; a victim is unlikely to stand still.
Further, the description of the reaction of the accused to the question asked by Ms Hudson-Moon is consistent with a theory that, after being assaulted, or during the assault, the deceased collapsed onto her knee and died and the accused moved her to where she was eventually located and, not realising that she was dead or about to die, thought to administer first aid.
He was positioned, according to Ms Hudson-Moon, near her feet and crouched. This was where the unopened medical kit was located.
Whether the accused moved her to the eventual location or merely rolled her over, when he did move her or rolled her over, she was already deceased, and the movement caused the buckle injuries to the ribs. It is noteworthy that it seems one of the prior assaults had injured her ribs on an earlier occasion and those ribs had commenced to heal. The deceased must have ceased bleeding by the time she was located where the police found her, otherwise there would have been blood where she was lying.
What then happened is a matter that only the accused can say. He may have thought about how he would deal with the issue; he may have slept. The accused had returned from the pub and, inferentially, had either been drinking or consuming drugs. In either case, it would explain a requirement to sleep.
There are other explanations for the medical mechanism of death, but once one assesses the possibility of death by methadone alone as fanciful for a person who, on the inferences I draw, has and had used opioids and methadone over some years, the most likely medical mechanism of death is that suggested by Professor Duflou and Dr Cala. Professor Duflou suggested that, given her serious heart condition (over 50% occluded arteries), the stress of being bashed and/or the numerous blows to the head and neck is “the kind of thing that could substantially contribute to a cardiac arrythmia which combined with the coronary artery disease led to death”. [42]
42. Tcpt, 24 June 2025, p 304, ln 34-49; p 282, ln 44; p 283, ln 25.
The contribution of methadone to that process, on the expert evidence of Professor Duflou [43] and Dr Cala, depends very much on the circumstance that the deceased may have been a naive user of methadone. I do not accept that as a reasonable hypothesis.
43. Tcpt, 24 June 2025, p 283, ln 27-38.
However, it may be that the arrhythmogenic attributes of methadone were also a contributing factor, even for a regular user. Ultimately, the question the Court is required to determine in relation to the cause of death is whether there is a reasonable hypothesis that the severe assault inflicted by the accused had nothing to do with the death of the deceased and its timing. Once one excludes the deceased as a naïve user and therefore a methadone overdose as not a reasonable possibility, the expert evidence points irresistibly to the assault being an operating and substantial medical mechanism of death. Frankly, not to draw the inference that the assault was an operating and substantial cause of death would contradict common sense and human experience.
The above conclusions result in the Court being satisfied of elements (a), (b) and (c) of the elements of both murder and manslaughter. Without in any way being flippant, the deceased is dead, the assault by the accused was a deliberate act of the accused, and the assault and injuries inflicted by him were an operating and substantial cause of death. It is necessary to deal with intention.
As earlier stated, the accused needs to possess the requisite intention at the time that the assault occurred. The fact, assuming for present purposes it is the fact, that the accused regrets the death of the deceased does not impact upon the possession of that intention.
In a wholly different context, dealing with the interpretation of a statute and the use in that statute of the word “intention” Gageler J (as the learned Chief Justice then was) said:

“41. The concept of intention is similarly insufficiently precise to allow its content in a particular statutory context always to be determined by reference merely to ordinary or grammatical meaning. That is particularly so where the question is whether a person ‘intends’ a result which the person is aware will occur but which the person does not want to occur, either as an end in itself or as a means of achieving some other end. Does the dentist ‘intend’ to cause pain to the patient? Does the judge who finds for the plaintiff knowing that the damages will bankrupt the defendant ‘intend’ to bankrupt the defendant? Does the ‘strategic bomber’ who drops the bomb on the enemy munitions factory ‘intend’ to kill the children in the adjacent school? The answer will not be found in a dictionary, and neither common sense nor conceptual analysis can be expected to yield a single answer satisfying across a range of circumstances irrespective of why the question is asked.
42. Whether the concept of intention invoked in a particular statutory context is objective or subjective and, if subjective, whose and what state of mind will suffice to constitute the requisite intention will vary from statute to statute. Where the question is one of subjective intention as to the result of conduct, ‘introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous’. But whether a man or woman is to be taken subjectively to intend the known or expected consequences of his or her act is less susceptible of generalisation. Intention as to a result will sometimes require the purpose or design of bringing about the result. At other times, intention as to result will sufficiently be found in willingness to act with awareness of the likelihood of the result. Absent express legislative indication as to which of those, or perhaps other, alternatives is applicable in a given context, the choice between them becomes a matter of construction. Neither alternative can be dismissed simply on the basis that it lies beyond the ordinary meaning of intention.” [44] [Footnotes omitted.]
44. SZTAL v Minister for Immigration (2017) 262 CLR 362; [2017] HCA 34 at [41], [42] (Gageler J).

Judges instruct juries that intention is a familiar word and carries its ordinary meaning. It may be inferred or deduced from the circumstances of particular acts and those acts may themselves provide the most convincing evidence of intention. Where the result is the “obvious and inevitable consequence” of a person’s act and the act is done deliberately, one may readily conclude that the act was done with the intention of achieving that result.
Death was not the “obvious and inevitable consequence” of the assault by the accused of the deceased. Nor, to use the words of Gageler J, was it the “reasonable consequence” of the assault. The Crown does not seem to rely upon an intention to kill.
The accused has made no admission as to his intention. The question arises as to whether the Court can infer from the assault an intention to cause grievous bodily harm. The injuries are serious. The injuries are far more serious than any injury that occurred on 26 December 2022. There is no doubt that the assault caused grievous bodily harm, but that does not answer the question as to whether the accused had the subjective intention to cause grievous bodily harm.
There is no doubt that the assault was intended to cause harm; it was intended to cause serious harm. The issue is not whether there was an intention to cause serious harm but whether there was an intention to cause grievous bodily harm or really serious injury. In my view, the injuries inflicted were “really serious”. However, I am not satisfied beyond reasonable doubt that the accused intended to inflict really serious injury.
I do accept that the accused intended to inflict an injury that was significantly worse than the injury inflicted on 26 December 2022. There may have been a number of reasons for that: the anxiety and depression at being homeless; the irrational blame on the deceased in relation to that circumstance; the fundamental disempowerment suffered by the accused at the time. Yet, notwithstanding the seriousness of the injuries inflicted, those injuries, of themselves, would not have caused death and were not serious enough to be able to cause death, by themselves. Of course, the accused was aware of the perilous health condition of the deceased, but the Crown has not proved that he subjectively considered her health when inflicting the injuries.
Notwithstanding the view I have that, in all probability, given the seriousness of the injuries, the accused intended to cause grievous bodily harm, I am not satisfied of that factor beyond reasonable doubt. Another reasonable possibility inconsistent with the accused possessing such an intention exists. I do not find element (d) in relation to murder satisfied to the requisite standard.
Having come to that conclusion, the accused must be found not guilty of murder. However, the assault was an unlawful and dangerous act which a reasonable person in the position of the accused would have realised exposed the deceased to an appreciable risk of serious injury. I find the accused guilty of manslaughter.

Orders

The Court reaches the following verdict and makes the following order:

On the charge that, on 3 January 2023, at Ballina in the State of New South Wales, the accused, Robert Karl Huber, did murder Lindy Lucena contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), the Court finds the accused not guilty.

On the charge that, on 3 January 2023, at Ballina in the State of New South Wales, the accused, Robert Karl Huber, did unlawfully kill Lindy Lucena, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), the Court finds the said Robert Karl Huber guilty as charged.

The Court will list, after consultation with the parties, a sentencing hearing in relation to Counts 1 and 3 on the indictment.

**********

Annexure (190 KB, docx)

Endnotes

Amendments

15 July 2025 - Para 25 - change "Mahoney J" to "Mahoney JA"

16 July 2025 - Coversheet - amended case name.

Decision last updated: 16 July 2025

Medium Neutral Citation:	R v Huber [2025] NSWSC 714
Hearing dates:	18, 19, 20, 23, 24, 25, 26 June 2025
Date of orders:	7 July 2025
Decision date:	07 July 2025
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) On the charge that, on 3 January 2023, at Ballina in the State of New South Wales, the accused, Robert Karl Huber, did murder Lindy Lucena contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), the Court finds the accused not guilty. (2) On the charge that, on 3 January 2023, at Ballina in the State of New South Wales, the accused, Robert Karl Huber, did unlawfully kill Lindy Lucena, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), the Court finds the said Robert Karl Huber guilty as charged. (3) The Court will list, after consultation with the parties, a sentencing hearing in relation to Counts 1 and 3 on the indictment.
Catchwords:	CRIME — murder — plea of not guilty — elements of murder — causation — circumstantial evidence — inferences — where medical mechanism of death is not straightforward — where experts disagree on cause of death — whether assault by accused caused death — cause of death versus mechanism of death — methadone overdose — commotio medullaris — positional asphyxiation — axonal injury — domestic violence — requisite intention not found — verdict of not guilty to murder but guilty of manslaughter CRIME — manslaughter — alternative to murder — unlawful killing — plea of not guilty — elements of manslaughter — verdict of guilty CRIME — violent offences — assault occasioning actual bodily harm — guilty plea CRIMINAL PROCEDURE — trial — judge alone — Criminal Procedure Act 1986 (NSW) s 133
Legislation Cited:	Crimes Act 1900 (NSW), s 18 Criminal Procedure Act 1986 (NSW), s 133 Evidence Act 1995 (NSW), s 79
Cases Cited:	Carr v Baker [1936] SR (NSW) 301 Fabre v Arenales (1992) 27 NSWLR 437 Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4
Texts Cited:	“Methadone and drug addicts”, Karen Worm, Anni Steentoft, and Birgitte Kringsholm, International Journal of Legal Medicine (1993) 106 Randal C Baselt, “Disposition of Toxic Drugs and Chemicals in Man”, 12th ed, Biomedical Publications, 1 June 2020
Category:	Principal judgment
Parties:	Rex (Crown) Robert Karl Huber (Accused)
Representation:	Counsel: Ms S Oliver (Crown) Mr J Watts (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Legal Aid New South Wales (Accused)
File Number(s):	2023/00003477
Publication restriction:	N/A