R v Koenig - [2013] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOENIG
Criminal Trial by Judge Alone
[2013] SASC 42
Reasons for the Verdict of The Honourable Justice White
27 March 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PROOF AND EVIDENCE - MOTIVE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - REBUTTAL OF POSSIBLE DEFENCE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - OTHER MATTERS
The accused was charged with the murder of her de facto partner - she pleaded not guilty and elected to be tried by judge alone - the prosecution case was circumstantial and alleged that the accused had administered a fatal dose of amitriptyline to the victim - the defence submitted that death by suicide or accidental overdose could not be excluded as a reasonable possibility - the applicability or otherwise of s 34KA of the Evidence Act 1929 (SA) to out of court statements made by the alleged victim in the present case was also considered.
Held:
(1) Section 34KA is capable of application in the present case despite the fact that the maker of the out of court statement is the alleged victim of the murder charged against the accused - the statements of the victim could therefore be admitted for testimonial purposes (at [211], [216]).
(2) The prosecution case does not exclude as a reasonable possibility that the victim's death was caused by suicide or by an attempt at self-harm on his part (at [386]).
(3) The accused is found not guilty of murder, and not guilty of the alternative offence of manslaughter (at [386]-[387]).
Coroners Act 2003 (SA) s 28; Criminal Justice Act 2003 (UK) s 116; Criminal Law Consolidation Act 1935 (SA) s 267; Evidence Act 1929 (SA) s 34KA, s 34KB, s 34KC, s 34KD, s 34P; Serious and Organised Crime (Control) Act 2008 (SA); Statutes Amendment (Serious and Organised Crime) Act 2012 (SA) s 42, referred to.
Bannon v The Queen (1995) 185 CLR 1; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Edwards v The Queen (1993) 178 CLR 193; Pollitt v The Queen (1992) 174 CLR 558; R v Hissey (1973) 6 SASR 280; R v Hunter [1973] 3 WLR 374; R v Loader (2004) 89 SASR 204; R v Musone [2007] 1 WLR 2467; R v Seigneur (2009) 103 SASR 207; R v Wildy (2011) 111 SASR 189; Walton v The Queen (1989) 166 CLR 283; Wilson v The Queen (1970) 123 CLR 334, considered.

R v KOENIG
[2013] SASC 42
Offence Elements
Matters of Principle and Approach
Background Matters
The Accused’s Relationship with Mr Ellbourn
Mr Ellbourn’s Apparent Disappearance in May 2011
Mr Ellbourn’s Body is Found
The Examination and Autopsy Results
The Accused’s Drug Activities
Amitriptyline as the Cause of Death
The Accused’s Access to Amitriptyline
The Accused’s Knowledge of the Risks of Amitriptyline
Administering Amitriptyline to Mr Ellbourn?
Use of “Special Latte” and “Special Coffee”
The Events of Friday 6 May 2011 and Saturday 7 May 2011
The Events of Sunday 8 May 2011
Alison Folkers
Richard Merrick
Other Matters on 8 May
The Events of Monday 9 May 2011
Angela Adriaens
Evidentiary Use of the 8 May SMS Messages
Contract Arrangements to Kill Mr Ellbourn?
Blake Squires
Shannon Dougherty
Ursula Masnicki
Steven Berghuis
Discussion of the Evidence of Blake Squires and Shannon Dougherty
Post‑Death Admission
Concealment of Mr Ellbourn’s Body
Movement of Mr Ellbourn’s Body
Post-event Conduct
The Accused’s Lies
Efforts to Obtain Mr Ellbourn’s Employment Entitlements
Accessing Mr Ellbourn’s Bank Accounts
Preparation and Lodgement of Mr Ellbourn’s 2011 Tax Return
Calls to Mr Ellbourn’s Phone
Ricky Ellbourn and the “Government” Document
Use of the Evidence of Post-event Conduct
Motive
Suicide or Accidental Overdose?
Consideration
Criminal

WHITE J. The accused is charged with the murder of Gregory Craig Ellbourn. Although the information alleges that the murder was committed sometime between 7 May 2011 and 12 November 2011, the prosecution case is that it occurred on 8 or 9 May 2011.
The trial proceeded without a jury as the accused elected to be tried by a judge alone.
Prior to May 2011, Mr Ellbourn and the accused had been domestic partners, living in the accused’s home at 12 Gabriel Street, Christie Downs.
Mr Ellbourn’s body was found by a member of the public shortly after 4.00 pm on Friday, 11 November 2011 at the side of Old Sellicks Hill Road, Myponga. The police attended about 40 minutes later. The advanced decomposition of Mr Ellbourn’s body indicated that his death had occurred several weeks or months earlier. It was also apparent that Mr Ellbourn’s body had been left at the Myponga site only recently before being found.
The subsequent autopsy was not able to identify with certainty the cause of death. It may have been the result of two fractures to the cricoid cartilage at the lower end of the larynx. Those fractures were consistent with having been caused by strangulation or by blunt trauma but could also have been caused after Mr Ellbourn’s death.
Toxicological analysis indicated several drugs in Mr Ellbourn’s liver, including amitriptyline and its metabolite nortriptyline. The quantity present was consistent with Mr Ellbourn having ingested a lethal dose of either drug.
The prosecution case, which is wholly circumstantial, is that the accused killed Mr Ellbourn on 8 May 2011 or in the early hours of 9 May 2011 by administering a lethal dose of amitriptyline, or by causing such a dose to be administered; that the accused then kept the body in the shed at her Gabriel Street home; and that shortly before 11 November 2011 she dumped the body, or caused it to be dumped, at the Myponga site.
At the heart of the defence submissions is the contention that the prosecution case does not exclude as a reasonable possibility that Mr Ellbourn died as a result of suicide, accidental overdose or self‑harm.
For the reasons which follow, I consider that a verdict of not guilty should be returned to both the charge of murder and to the alternative offence of manslaughter.
Offence Elements
To establish the charge of murder on its primary case the prosecution must establish each of the following matters beyond reasonable doubt:
1. that the act or acts of the accused caused the death of Mr Ellbourn;
2. that the act or acts causing the death were conscious and voluntary;
3.that the act or acts causing the death were unlawful, that is, they were performed without any lawful excuse or justification; and
4.that when the accused performed the act or acts causing the death, she intended to kill, or to cause very serious harm to, Mr Ellbourn.
The prosecution contends in the alternative that the evidence supports the conclusion that if the accused did not herself administer the lethal dose, then she aided, abetted, counselled or procured his death by another and may therefore be found guilty as a principal offender.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 267.
Manslaughter is an available alternative verdict, in particular, manslaughter by an unlawful and dangerous act. The first three elements of that offence are the same as the first three elements for the offence of murder. In addition, the prosecution must establish beyond reasonable doubt that the action by the accused which caused Mr Ellbourn’s death was dangerous in the sense that a reasonable person in her position would have realised that her act or acts would expose Mr Ellbourn to an appreciable risk of serious injury. The accused may also be convicted of manslaughter by unlawful and dangerous act on the basis of accessorial liability.
Matters of Principle and Approach
The presumption of innocence applies. Accordingly, the prosecution has the onus of establishing each of the four elements of the offence of murder, or of the alternative offence of manslaughter, beyond reasonable doubt. The accused is not required to prove anything.
As the prosecution case is circumstantial, I must consider the evidence as a whole in determining whether each element of the offence is established beyond reasonable doubt. The charge will not be proved if there is any reasonable explanation of the evidence which is consistent with innocence. That is to say, the prosecution must exclude any rational hypothesis based on the evidence which is consistent with the accused’s innocence. I am to consider the evidence as a whole, rather than each piece of evidence in isolation from the other pieces of evidence. Although the prosecution must prove each element of the offence beyond reasonable doubt, that does not mean that every piece of evidence upon which it relies to prove an element by inference must itself be proved beyond reasonable doubt.
The prosecution contends that the accused had a motive for the killing of Mr Ellbourn. However, proof of motive is not an element of either offence. The evidence of motive is simply one part of the evidence to be considered in the circumstantial case presented by the prosecution and considerable care is required in using evidence of motive.
The accused did not give evidence in the trial. She was not obliged to do so and no inference is to be drawn against her because of her silence. In particular, the fact that the accused did not give evidence is not to be regarded as some form of admission or used in any other way as some form of make‑weight in my assessment of the evidence. I do not speculate as to why the accused did not give evidence.
The accused did give a statement to the police concerning Mr Ellbourn on 12 November 2011 at the commencement of their investigation. However, when arrested on 4 April 2012, the accused exercised her right to silence. Again, no inference is to be drawn against her because of her exercise of that entitlement.
The prosecution case contends that some statements made by the accused after the death of Mr Ellbourn were lies. These lies, the prosecution contends, related to the accused’s knowledge of Mr Ellbourn’s whereabouts and were made to his employer, his tax agent and to others in the period after his death and before his body was found, and to the police on 12 November 2011 when they were commencing their investigation. I will identify later the statements on which the prosecution relies in this respect.
The fact that the accused has told lies is not of itself evidence of guilt, nor can it be used to impute bad character to the accused. The lies may, however, be considered together with all the other conduct of the accused occurring after the death of Mr Ellbourn as part of the circumstantial case made against her.[2] Although it is not necessary for the prosecution to exclude beyond reasonable doubt any innocent explanation for the accused’s lies, I need to keep in mind that there may be many explanations for the lies other than her guilt of the murder of Mr Ellbourn and that I should consider whether the accused told the lies because of an awareness on her part that telling the truth would implicate her in Mr Ellbourn’s death.
[2] R v Loader [2004] SASC 234 at [31]; (2004) 89 SASR 204 at 212; R v Wildy [2011] SASCFC 131 at [24]-[26], (2011) 111 SASR 189 at 195-6.
The evidence of two witnesses, Mr Evans and Mr Dougherty, was given from outside the courtroom and transmitted by audio visual link. This was because of the anxiety state of each. No inference adverse to the accused is to be drawn from these arrangements, nor is the weight to be given to their evidence to be influenced by the fact that their evidence was given in this way.
Background Matters
In May 2011 Mr Ellbourn was 47 years old. He was sometimes known as “Gidge”. His usual employment was that of a truck driver and it seems generally that he had work. There were some periods of unemployment but from 16 November 2010 he had continuous employment with Diamond Brothers as an interstate truck driver. He drove B‑Double trucks from Adelaide to Melbourne and Sydney and was often away for several nights each week.
Mr Ellbourn’s literacy and numeracy skills were limited. It is apparent that he would often rely on the accused or his sons Ricky and Timothy when an understanding of written material was required.
In 1996, Mr Ellbourn was diagnosed with Adult Attention Deficit Hyperactivity Disorder (ADHD), a condition which, if untreated, results in impaired concentration and increased impulsivity. His ADHD was treated to good effect with the prescribed medications Ritalin or dexamphetamine. Because dexamphetamine may be prescribed only by a psychiatrist, Mr Ellbourn’s general practitioner, Dr Mayne, referred him initially to Dr Craig and then, in March 2010, to Dr Begg. The latter prescribed dexamphetamine at the rate of one to two 5mg tablets three times per day. Dr Begg said that Mr Ellbourn’s continued control of his ADHD depended on his continued use of dexamphetamine with the effect that if he ceased usage he would experience symptoms almost straightaway.
The accused, known to many of the witnesses as “Caz”, was born in February 1967 so that in May 2011 she was 44 years old. She had two teenage children but was separated from their father, Mr Szigeti. At least in the financial year ending 30 June 2011 the accused did not have paid employment. There is some evidence that she was in receipt of a Centrelink pension during this period.
The accused met Mr Ellbourn in 2008. A relationship developed and later in that year, or early in 2009, Mr Ellbourn moved to live with the accused in her Gabriel Street home, which was a rented property. When spoken to by the police on 12 November 2011, the accused said that her relationship with Mr Ellbourn had commenced soon after they met in April 2008 and ended when Mr Ellbourn left her on Mothers Day 2011 (8 May 2011). A witness (Mr Bonney) said that the accused had told him in May 2011 that her relationship with Mr Ellbourn had continued until Mothers Day, or the day before, when they had argued and she had told him to leave.
Mr Ellbourn’s two sons also moved to Gabriel Street with him. Some of the activities of Ricky and Timothy at Gabriel Street (of Timothy in particular) gave rise to some tensions and after a few months, possibly six or so, the accused required Timothy to leave. Ricky also moved out at about the same time. A friend of the accused, Ms Masnicki, said that she had been told by the accused that she had given Mr Ellbourn an ultimatum to the effect that he had to choose between the boys and her. In any event, it seems that, apart from a short period when Ricky returned, Mr Ellbourn lived at 12 Gabriel Street without his sons for at least a year before May 2011.
However, Mr Ellbourn’s residence at 12 Gabriel Street was not continuous. I have already mentioned his absences when driving trucks interstate. In addition, there was evidence from Ricky and Timothy that the deceased required Mr Ellbourn to sleep elsewhere when her two children were staying over, which seems mostly to have been on weekends. On those occasions Mr Ellbourn would sleep in the shed at 12 Gabriel Street, or in his car, or go to the house of his friend Alison Folkers. There was also at least one time (to which I will refer later) when the accused and Mr Ellbourn split up.
With the possible exception of the evidence of Ms Masnicki, the evidence concerning the matters I have recounted above was not contentious.
As I have already indicated, the prosecution case against the accused is entirely circumstantial. It depends on the combined effect of a number of different matters. It is convenient to identify those matters and the evidence concerning them under the headings which follow.
The Accused’s Relationship with Mr Ellbourn
It is appropriate to have regard to all aspects of the relationship between the accused and Mr Ellbourn. An understanding of that relationship is particularly pertinent to the issues of whether the accused caused Mr Ellbourn’s death and, if so, whether she did so with the requisite intention for the offences of murder or manslaughter. As Menzies J observed in Wilson v The Queen:[3]
Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.[4]
[3] (1970) 123 CLR 334.
[4] Ibid at 344. See also R v Hissey (1973) 6 SASR 280 at 288-9.
At least for some of the time, the relationship between Mr Ellbourn and the accused was affectionate. Ricky Ellbourn gave evidence to this effect and said that it appeared to him that his father was deeply in love with the accused. The accused accompanied Mr Ellbourn on many of his interstate truck driving trips, which by itself is suggestive of a close relationship. I will refer later to the text message which Ms Folkers received from Mr Ellbourn’s mobile phone on the morning of 8 May 2011 but for present purposes the statement “I love her so much”, in apparent reference to the accused, is pertinent.
I also note Mr Bonney’s evidence that, in a conversation with the accused on or about 13 May 2011, she had told him of Mr Ellbourn’s present of a necklace to her on Mothers Day (8 May 2011). If Mr Ellbourn did give such a present, it too suggests a loving attitude on his part towards the accused. However, while I accept Mr Bonney’s evidence that the accused did make this statement to him, I keep in mind that, in the circumstances in which it was made, it may not necessarily have been an honest statement.
Although the evidence outlined above suggests a close and loving relationship at times, there is also evidence that the accused and Mr Ellbourn had a number of difficulties and that after a time Mr Ellbourn’s love of the accused was not reciprocated.
Each of Ricky and Timothy Ellbourn gave evidence of frequent arguments between the accused and their father. Often these arguments were about money or his superannuation, with the accused asserting that Mr Ellbourn owed her money. Ricky Ellbourn said that the accused would assert that Mr Ellbourn owed her $30,000, and he in turn would deny it. The arguments started after they had been living in Gabriel Street for two or three months and were frequent, sometimes two or three times per week.
Timothy said that the arguments frequently occurred at the time of his father’s (weekly) pay day. He heard the accused assert that Mr Ellbourn owed her money, sometimes because of damage to the house or to her car. He also heard Mr Ellbourn dispute that he owed money.

Ms Masnicki was for a time a close friend of the accused. At one stage she was retained pursuant to some allowance from Centrelink to work as the accused’s carer. She said that her close relationship with the accused ceased some five or six months before Mr Ellbourn’s body was found, but she did allow the possibility that it had continued until shortly after that time, towards the end of 2011.
Ms Masnicki said that on one occasion she had seen the accused and Mr Ellbourn arguing because Mr Ellbourn had registered the car he was driving in his own name. She described the accused on this occasion punching Mr Ellbourn to his head. He did not retaliate but simply protected his face with his hands as though cowed. Each of Timothy Ellbourn and Blake Squires also gave evidence of a single (but different) occasion on which they had seen the accused behave violently towards Mr Ellbourn: in Timothy’s case by slapping his father across the face; and in Blake’s case by punching him to the head.
Strictly speaking the evidence of the accused’s violent behaviour to Mr Ellbourn appears to be discreditable conduct evidence with the effect that its admissibility is governed by s 34P of the Evidence Act 1929 (SA). Unlike other forms of discreditable conduct evidence in the trial, the Director did not seek a ruling as to the admissibility of this evidence. On the other hand, counsel for the accused did not object to its admission. The status of this evidence is therefore a little unsatisfactory, but it is unnecessary to resolve the issue. That is because the evidence on this aspect of the relationship was rather subsumed by other evidence.
More significant is the evidence that the accused was frequently verbally abusive and derogatory of Mr Ellbourn. Ricky Ellbourn said that on some three or four occasions while they were arguing about money, he had heard the accused say abusive things about Mr Ellbourn such as “backstabber” and “dog”. He also said that she had accused his father, falsely, of menacing her daughter.
Timothy Ellbourn said that in the course of arguments about money the accused would call his father names such as “cunt”, “arsehole”, “fuckhead” and the like. On about 20 occasions he heard the accused yell threats to his father, using words such as “I’ll kill you” or “I’ll get people to kill you”. On these occasions his father would become upset and tearful.
The accused would frequently speak to Ms Masnicki about her relationship with Mr Ellbourn. Ms Masnicki described the accused making statements concerning Mr Ellbourn in his absence which, on any view, were of a ridiculing, demeaning and contemptuous kind.[5] It is not necessary to repeat those statements in these reasons. Ms Masnicki said that up until the time she ceased her relationship with the accused she had made statements of this kind frequently.
[5] See Tx pp 880, 882, 891.
When Ms Masnicki asked the accused why she stayed with Mr Ellbourn if she felt this way about him, the accused responded that she wished to get back the money which Mr Ellbourn owed her. Initially this was said to be $5,000 but later it was said to be $35,000. The accused said that Mr Ellbourn owed her this money “from leeching off her, rent, her paying for everything, her paying off bills and fines for him and other money that she’d have to spend on his children”.
Ms Masnicki said that at other times the accused would describe Mr Ellbourn as being “extremely clingy”, so much so that she could not go to the shops without him. The accused told her that Mr Ellbourn would follow her “like a puppy dog” so that she did not have any space and felt smothered.
Ms Masnicki gave evidence of the accused indicating a desire that Mr Ellbourn should suffer some forms of harm. In particular, on one occasion she described Mr Ellbourn as “a piece of scum” who should be in gaol and not in the community. The accused discussed with Ms Masnicki the making of a false report of sexual assault as the means by which this could occur. On another occasion the accused told Ms Masnicki that Mr Ellbourn should “rot in gaol or die a very painful death”.
I consider that some caution is required in the assessment of Ms Masnicki’s evidence. It was evident that she has some resentment towards the accused. I also had the impression that Ms Masnicki is herself convinced that the accused killed Mr Ellbourn. There is a distinct possibility that these factors have coloured her views of past events. I also thought that on some topics Ms Masnicki may have exaggerated or magnified some of the conduct of the accused about which she spoke. I keep in mind that there were some inconsistencies in Ms Masnicki’s evidence, albeit on some matters which I thought were at the periphery of her testimony.
On the other hand, Ms Masnicki gave evidence in an impressive manner and she appeared to have a good recollection of the events which she described. My overall impression is that her evidence is generally reliable.
Accordingly, although I do think that Ms Masnicki’s evidence should be viewed with some circumspection, I am prepared, generally, to rely on it. In particular, I accept Ms Masnicki’s evidence concerning the statements made by the accused regarding her relationship with Mr Ellbourn. I consider that the accused did make the statements to which Ms Masnicki deposed and, further, that they reflected her true feelings about Mr Ellbourn.
Richard Merrick, who was a friend of Mr Ellbourn, gave evidence of Mr Ellbourn telling him about difficulties in his relationship with the accused, and being stressed and agitated about his living conditions. This was in the last two or three months before he lost contact with Mr Ellbourn in May 2011. On several occasions while he was driving his truck, Mr Ellbourn would ask Mr Merrick to pass on messages to the accused which were, in effect, requests that he have access to 12 Gabriel Street and his clothes and belongings which he kept there. It was not clear whether Mr Ellbourn made these requests because he had reservations about making them directly to the accused or because he knew that his truck driving was going to take him out of mobile phone contact range, making it difficult for him to contact the accused.
I accept the evidence of the witnesses on these topics. I conclude that, in the last year or so of their relationship, the accused’s attitude towards Mr Ellbourn had soured and that she was frequently derogatory and demeaning of him. The statements which she made concerning Mr Ellbourn seem to have gone beyond expressions of dissatisfaction, exasperation or disillusionment.
Mr Ellbourn’s pay arrangements are consistent with the accused having a close interest in his pay. From the commencement of his employment, Diamond Brothers paid Mr Ellbourn’s wages into an ANZ Bank account held in the accused’s sole name. I infer that Mr Ellbourn was not a signatory to the account nor able to effect withdrawals from it. Accordingly, the effect would have been that he was entirely dependent upon the accused providing him with the cash to be used for day to day expenses and purchases.
On 19 January 2011, Mr Ellbourn made an alteration to these payment arrangements. He opened an account in his own name with National Australia Bank (NAB) and asked Diamond Brothers to pay $150 per week from his pay into that account and the balance into the accused’s ANZ account. Thereafter, with four exceptions, Mr Ellbourn’s pay was split between the two accounts in this way. On one occasion, at Mr Ellbourn’s request, Diamond Brothers paid $350 into the NAB account; on two occasions before 8 May they paid $250 into that account; and on one occasion no monies at all were paid into the NAB account. It seems that Mr Ellbourn was thereby able to exercise some control over the disposition of his pay and ensure that some would be available for his own use.
There is no evidence as to whether Mr Ellbourn established the separate NAB account with the accused’s knowledge and approval, nor as to her reaction to the variation in pay arrangements. However, it is reasonable to infer that Mr Ellbourn’s actions to secure some of his pay for his own use may have exacerbated the tensions concerning money in his relationship with the accused. I also note that the accused recorded a number in her notebook after the letters “NAB” which I infer was the PIN to Mr Ellbourn’s NAB account. The accused acknowledged in some agreed facts that in, and after, May 2011 she had made withdrawals from Mr Ellbourn’s NAB account and from another which he held with Westpac.
Finally, I note that both Mr Ellbourn’s general practitioner, Dr Mayne, and his psychiatrist, Dr Begg, said that Mr Ellbourn had told them of a period of separation from the accused (in Dr Begg’s case from the person who must have been the accused). Dr Mayne said that she was told in early April 2010 that the accused and Mr Ellbourn had “split for a while” and that he was living in his car. When Dr Begg first saw Mr Ellbourn on 30 March 2010, he (Mr Ellbourn) was “in a very distressed state” and reported that “his wife kicked him out and he’d been living in his car”. However, when he saw Mr Ellbourn one week later on 6 April 2010, the “crisis” had passed and Mr Ellbourn’s emotional state was much better. I infer that this was because he and the accused had reconciled.
There is one other feature of the relationship to record. It is clear that the accused “controlled” Mr Ellbourn to an extent and that of the two, she had greater acumen in relation to financial matters. It seems that Mr Ellbourn may generally have been content for the accused to attend to financial matters (putting to one side his establishment of the NAB account) and have accepted the accused’s demands or requirements in aspects of their relationship.
Mr Ellbourn’s Apparent Disappearance in May 2011
There is a substantial body of evidence indicating that no one had any contact with Mr Ellbourn after 8 May 2011.
Arthur Diamond said that Diamond Brothers regarded Mr Ellbourn as a reliable and punctual driver who appeared to like his job. He last saw Mr Ellbourn at about 4.00 pm on Friday, 6 May 2011 when he (Mr Ellbourn) left Diamond Brothers’ Regency Park depot, having completed his work for the day.
Mr Ellbourn was due to commence a trip to Melbourne from the Regency Park depot at about lunchtime on Sunday, 8 May 2011. However, when Mr Diamond arrived for work shortly before 7.00 am on Monday, 9 May, he was surprised to see that Mr Ellbourn’s loaded truck was still in the depot. Further, Mr Ellbourn’s personal belongings were still in the truck cabin. All of Mr Diamond’s subsequent attempts to contact Mr Ellbourn by telephone were unsuccessful.
Of the witnesses in the trial Mr Diamond was the last to see Mr Ellbourn alive.
Mr Diamond said that during the week commencing 9 May 2011 he received telephone calls from the accused. Over a three week period he received four or five such calls. The general effect of the accused’s calls was that Mr Ellbourn had abandoned her and that she did not know his whereabouts.
In the first part of 2011, Ricky Ellbourn was accustomed to speaking to his father about once every one or two weeks, sometimes by telephone and sometimes in person. His last contact with his father was shortly after 1.46 am on Wednesday, 4 May 2011 when he had attended at the Christies Beach Police Station to provide a guarantee of bail for his father. The matter for which Mr Ellbourn was then arrested was not the subject of any evidence and I do not speculate about it. Ricky Ellbourn said that his telephone calls to his father about two or so weeks after 4 May 2011 went unanswered.
Before May 2011 Timothy Ellbourn’s contact with his father had been less frequent than that of Ricky. He said that his last telephone contact with Mr Ellbourn had been “a few months” before November 2011 but it was very evident that Timothy Ellbourn’s estimates of time were not reliable. He too said that his father had not responded to his telephone calls or messages.
Alison Folkers was a good friend of Mr Ellbourn. In 2011 she was accustomed to having contact with him about once every week, sometimes by telephone, sometimes at her own home, and sometimes when they were out. Ms Folkers gave evidence of mobile phone contact she had had with Mr Ellbourn on Sunday, 8 May 2011 to which I will refer later. On Monday, 9 May 2011 she tried several times to contact Mr Ellbourn by telephone as well as on the subsequent days in that week. None of her calls was answered. She had no further communication with Mr Ellbourn after 8 May 2011.
Mr Merrick was another witness with whom Mr Ellbourn had regular telephone contact before 8 May 2011. Although Mr Merrick’s evidence about dates was a little uncertain, he had no contact with Mr Ellbourn after 8 May 2011.
In May 2011, Mr Ellbourn had two mobile phones (one with last four digits 9964, the other with last four digits 5477)..[6] There were no outgoing calls or text messages from either phone after 8 May. This is in marked contrast to the position before 8 May as the records show that Mr Ellbourn was a very frequent user, at least of his phone 5477. I note that no evidence was adduced of the use before 8 May 2011 of Mr Ellbourn’s phone 9964. Further, it is an agreed fact that none of the calls to his 9964 phone on 8, 9 or 10 May 2011 was answered.
[6] For subsequent references to a given phone I will simply refer to its last four digits as a shorthand means of identifying the specific number associated with that phone.
The call charge records for the accused’s mobile phone (last four digits 4813) show that before 8 May 2011 she made regular communications to Mr Ellbourn’s phone 5477. However, there were no communications at all from the accused to Mr Ellbourn by this means on 8, 9 or 10 May 2011. The records show that the accused made numerous communications to both of Mr Ellbourn’s mobile phones on 11 and 12 May 2011, and two communications on 13 May 2011, but thereafter no further communications to 20 May 2011. There is no evidence or agreed fact as to whether there was any response to the communications between 11 and 13 May 2011. Having regard to some evidence to which I am yet to refer, any response seems improbable. The potential significance of these calls is considered later but, for present purposes, I infer that Mr Ellbourn had no telephone communications with the accused after 8 May 2011.
Mr Bonney, a fellow truck driver at Diamond Brothers, telephoned Mr Ellbourn’s two mobile phone numbers in the week or so after 9 May 2011. He too had no response.
Mr Ellbourn did not use either of his accounts with Westpac and NAB after 8 May 2011. The withdrawals from these accounts after 8 May 2011 were made by the accused.
There is evidence that two prescriptions issued to Mr Ellbourn by Dr Begg on 24 February 2011 for dexamphetamine were filled on 17 May 2011 and 15 June 2011. However, as will be seen, I am satisfied that Mr Ellbourn was dead by 9 May and that it was the accused who had these prescriptions filled.
Dr Mayne expected that Mr Ellbourn would make an appointment to see her at the end of May 2011 for his regular prescription of pain killing medications. Mr Ellbourn did not make any such appointment. It is an agreed fact that Mr Ellbourn is not recorded as having been treated by any Medicare‑registered doctor since he last saw Dr Mayne on 29 April 2011.
Finally, I note that the accused told Sgt Woods on 12 November 2011 that she had last seen Mr Ellbourn in May 2011 and that their relationship had ended on Mothers Day that same year (which was 8 May).
Ultimately, the defence case seemed to accept that Mr Ellbourn was dead by the early hours of Monday, 9 May 2011, but it is not necessary for present purposes to rely on any such acknowledgment.
In summary, the evidence indicates that none of the persons with whom Mr Ellbourn was accustomed to have regular contact had any communication from him after 8 May 2011 and he did not respond to attempts by them to make contact with him. Nor did Mr Ellbourn, after 8 May 2011, engage in any of the activities which were to have been expected if he was still alive and active.
It is an agreed fact that no report of Mr Ellbourn as a missing person was made to the South Australian Police.
Mr Ellbourn’s Body is Found
Mr Ellbourn’s body was found by a Mr and Mrs Robinson at about 4.10 pm on 11 November 2011 at the side of Old Sellicks Hill Road, Myponga. This is a gravel road and has the appearance of being little used. The Robinsons immediately called the police.
The first police to come to the location arrived at 4.50 pm. Police Crime Scene Examiners arrived at 5.20 pm and Dr Gilbert, the Forensic Pathologist, arrived at 9.22 pm. At about 2.20 am on the morning of 12 November, Mr Ellbourn’s body was moved to the State Mortuary where a preliminary examination was carried out with a view to ascertaining his identity. Dr Gilbert carried out an autopsy later on 12 November.
The Examination and Autopsy Results
When found, Mr Ellbourn’s body was lying on, and partly covered by, a tarpaulin. Mr Ellbourn was wearing a pair of jeans, underpants, a T-shirt, a jacket and socks. He had a boot on his left foot. The right boot was on the ground nearby. A quilt was wrapped around his head.
Mr Ellbourn’s body was very decomposed and partly mummified. It did not contain any fluids such as urine, blood or vitreous humour.
It was obvious that Mr Ellbourn had been dead for some time and also that his body had been left at the Myponga site only recently before being found. On the assumption that the body had been kept in a dry location, such as a shed, during the cooler winter months, Dr Gilbert considered that Mr Ellbourn may have been dead for as long as six months.
At the City Mortuary, Mr Ellbourn was undressed. A pink glove was found inside one sleeve of the jacket between the sleeve and the arm. This gives rise to the possibility that he may have been dressed in the jacket after his death.
The body had no visible external injuries. However the cricoid cartilage at the front of the larynx had two fractures. Dr Gilbert could not tell whether these had been caused before or after Mr Ellbourn’s death. Given Mr Ellbourn’s age and some partial ossification of the cartilage, Dr Gilbert thought that it would have required the application of moderate to severe force to the cartilage to have produced the fractures while he was still alive. However, if they occurred after death, the effects of the decomposition would have meant that less force would have been necessary.
The fractures to the cricoid cartilage could have caused Mr Ellbourn’s death or at least be a manifestation of the application of the force which resulted in his death. Haemorrhaging from the fractures may have caused mechanical blockage of the adjacent airway. Alternatively, prolonged pressure on the cartilage, such as may have occurred in strangulation, may also have created blockage of the airways, or to the blood supply to the brain. Alternatively again, damage to the blood vessels resulting from pressure may have caused a reflex leading to cardiac arrest. Strangulation is not a common cause of fractures to the cricoid cartilage, but the fractures could have been caused by a blow.
Toxicological analysis of the liver, stomach contents and of a portion of muscle from the left quadricep indicated the presence of a number of drugs. The amounts detected in each case, as shown in the following table, were approximate only.

Liver Stomach Contents Muscle

amitriptyline 73mg/kg 1.5mg 2mg/kg

nortriptyline 32mg/kg - 0.6mg/kg

diazepam 0.3mg/kg 0.02mg 0.05mg/kg

nordiazepam 0.5mg/kg - 0.05mg/kg
No traces of amphetamines, cocaine, morphine or other common drugs (including codeine phosphate or paracetamol) were found in the liver.

Amitriptyline is a tricyclic anti-depressant sold under the commercial name “Endep”. Nortriptyline is a metabolite of amitriptyline and nordiazepam is a metabolite of diazepam. This means that they are products of the breaking down in the body of amitriptyline and diazepam respectively. Nortriptyline is itself an active drug which has been marketed as an anti‑depressant.
The presence of the amitriptyline and nortriptyline in the liver are significant findings. Dr Gilbert said that in the absence of evidence of any other cause, he would be confident that Mr Ellbourn’s death would be due to amitriptyline toxicity. Levels of 20mgs of amitriptyline per kilogram in the liver may be fatal.
Dr Gilbert could not be confident that amitriptyline had been present in Mr Ellbourn’s liver at the concentration of 73mg per kilogram at the time of death because it is established that in the decomposition process drugs such as amitriptyline may diffuse from one organ to another or migrate from one part of the body to another. This can result in an increase in the levels of the drug in the liver.
Although Dr Gilbert thought that Mr Ellbourn’s death may well have been caused by amitriptyline toxicity, he could not express a certain view. This was because of the potential for the amount of amitriptyline found in the liver to have been affected by post‑death migration or diffusion.
Dr Gilbert did not consider that the diazepam or nordiazepam were a cause of death as the levels found in Mr Ellbourn’s body were consistent with normal therapeutic doses of Valium. They may have had a slight additional effect to that of the amitriptyline, but not significantly so.
The Accused’s Drug Activities
Before the commencement of the trial, the Director gave notice under s 34P(4) of the Evidence Act 1929 (SA) of his intention to adduce evidence of four distinct kinds of discreditable conduct. By the agreement of the parties, I heard the evidence which the Director sought to adduce in the course of the trial proper and gave my ruling as to its admissibility at the conclusion of the prosecution case. I ruled in favour of the admission of the evidence in each of the four categories for the uses identified by the Director.
The first category was evidence of the accused’s activities in relation to prescribed medications and other drugs, in particular, evidence that she had obtained or attempted to obtain such drugs unlawfully, and that she had engaged in the unlawful sale, supply and use of such drugs. I ruled that the evidence in this category was admissible because it could assist in showing the true nature of the relationship between the accused and a number of the witness. In particular, it could indicate that they had trusting relationships of a kind in which admissions, or approaches for assistance, by the accused, might be made.
It is appropriate to record my findings about this evidence now.
The accused was prescribed a large number of medications by her general practitioner, Dr Wagner, and other doctors in his practice. I will refer later to the prescriptions of Endep and Valium. In addition, Dr Wagner regularly prescribed OxyContin (a long acting pain reliever), Endone (a short acting pain reliever), Panadeine Forte (for pain relief), Pramin (anti‑nausea medication) Serepax (a sleeping tablet) and Duromine (an appetite suppressant).
An indication of the extent of the medications prescribed to the accused is that when Dr Wagner saw her on 15 April 2011 (his last consultation before 9 May), he issued prescriptions for 30 40mg tablets of Duromine (with one repeat), 150 50mg tablets of Endep (recommended dose 2-4 per day) (with four repeats), 90 5mg tablets of Endone (recommended dose 3 per day) (no repeats), 56 80mg tablets of OxyContin (no repeats), 20 tablets of Panadeine Forte (no repeats), 50 5mg tablets of Valium (no repeats), 25 30mg tablets of Serepax (no repeats) as well as Pramin. In addition, Dr Wagner gave the accused on that occasion a post‑dated prescription permitting her, on or after 27 April 2011, to obtain a further 50 5mg tablets of Valium and a further 25 tablets of Serepax.
Further still, on 3 May, Dr Setayesh at Dr Wagner’s surgery issued the accused with prescriptions for 90 5mg Endone tablets, 56 80mg OxyContin tablets, 50 5mg Valium tablets and 25 30mg Serepax tablets. Dr Wagner seemed a little surprised that the accused would have needed further prescriptions on 3 May, so soon after his prescriptions of 15 April, including the post‑dated prescriptions for 27 April.
This evidence of Dr Wagner, which I accept, indicates that the accused had access to a wide range of prescribed medications, sometimes in considerable quantities.
Mr Bonney commenced living with the accused at 12 Gabriel Street at the end of May or in early June 2011. Their relationship continued until about October 2011. Mr Bonney said that he saw medication in the accused’s house, mainly in her bedroom. He specifically remembered seeing OxyContin there, but could not recall the other medications he had seen. He said that on one occasion when he was living with the accused she had asked him to “pop” all the OxyContin pills for her (apparently from a blister pack). At the same time the accused said that she could sell them, making $900 from one script. After the pills had been “popped” and put in a container, the accused had left the house, saying that she was going to sell them to a friend.
Mr Bonney also said that on one occasion when he was living with the accused he had seen Ricky Ellbourn chopping up some marijuana in the accused’s bedroom. Ricky Ellbourn did not give evidence of that incident but did say that on or about 10 November 2011 the accused had tried to sell three pounds of marijuana to him and his friends, and that on another occasion the accused had offered him marijuana when seeking to induce him to forge his father’s signature on a document.
Ms Adriaens said that she had first met the accused through her (the accused’s) sales of OxyContin to a friend. She said that because of her own painful spinal condition she had bought 80mgs of OxyContin from the accused. I will refer later to Ms Adriaens’ evidence that on one occasion she and the accused had bought and used methamphetamine together.
Ms Coad and Mr Evans, a young couple who lived together, said that the accused would contact them frequently, seeking to buy dexamphetamine, in the belief that they knew young people to whom it had been prescribed for ADHD.
Mr Best heard his friend, Mr Eastley, arguing with the accused on 17 March 2012 because she was refusing to supply pills to him.
Mr Squires acknowledged in cross‑examination that his purpose in going to the accused’s home on an occasion to be described later was to buy marijuana. He acknowledged, also in cross‑examination, receiving an SMS message from the accused in October 2011 relating to the supply by her of marijuana.
Mr Dougherty said that the accused had offered Mr Squires and him “pills and weed” “on tick” for them to resell in their local area.
With the exception of Ms Adriaens’ evidence concerning the methamphetamine, the evidence of the witnesses on this topic was not directly challenged in the cross-examination.
I would have had reservations about accepting the evidence of some of these witnesses if theirs had been the only evidence on the topic. However, it is the combined effect of the evidence which is to be considered. I regarded Mr Bonney’s evidence as reliable. Ricky Ellbourn’s evidence also was generally reliable although I think that his own involvement with the accused in relation to drugs may have been more extensive than he portrayed. My satisfaction that it was the accused who, on 17 May and 15 June 201l, had dispensed the prescriptions issued by Dr Begg to Mr Ellbourn for dexamphetamine is also pertinent in this context. It means that she was acquiring dexamphetamine on those occasions for her own purposes.
When the evidence of the witnesses which I regard as reliable, together with the evidence that the accused had prescriptions issued to Mr Ellbourn filled after his death, is considered in combination with the evidence of the other witnesses summarised above, it is apparent that, at least in 2011, the accused was trading in both prescribed and illicit drugs. It is that trading and supply which led to the accused’s relationships with several of the witnesses and provides the context in which their evidence is to be considered.
I add that some witnesses gave evidence indicating that the accused’s health problems for which she was apparently prescribed some of the medications, in particular her back condition, may not have been as severe as the accused claimed. Mr Bonney, Ms Masnicki and Timothy Ellbourn gave evidence of this kind. This may well have given rise to a circumstance in which the accused obtained prescribed medication for which she had no or limited need.
The evidence of the accused’s unlawful activities in relation to drugs is not, of course, to be used as indicating some form of predisposition to act unlawfully, or otherwise as evidence of bad character.
Amitriptyline as the Cause of Death
As already noted, the prosecution case is that Mr Ellbourn died from ingesting a lethal dose of amitriptyline administered, or caused to be administered, by the accused. The defence accepted that an overdose of amitriptyline was the cause of death but submitted that the prosecution had not excluded as a reasonable possibility suicide or accidental overdose by Mr Ellbourn.
Professor White is the Professor of Pharmacology at the University of Adelaide. He is well qualified to give evidence about the effects of amitriptyline and I accept his evidence, including his opinions. Dr Gilbert also gave evidence concerning the effects of amitriptyline in a forensic setting. I accept his evidence also. I rely on the evidence of Professor White and Dr Gilbert for the findings which follow.
An overdose of amitriptyline will commonly cause death by producing a fatal cardiac arrhythmia. In fact cardiac arrest is the usual cause of death from such an overdose. The number of fatalities recorded from people taking overdoses of amitriptyline is significant. Doses as low as 600mg (12 50mg tablets) have proved fatal but, with medical intervention, some people have survived taking doses of up to 2000mg.
Death from an overdose of amitriptyline does not occur quickly. Professor White said that death has been recorded as taking up to 24 hours to occur, and that it may possibly take longer than that. In those cases, the person will be very unwell in the intervening period. The effects of a dose of amitriptyline are likely to be felt by the person for at least 12 hours.
Overdoses which do not result in death will probably cause drowsiness and, if a significant overdose, a coma. In some cases, the overdose will cause agitation, distress, increased body temperature, convulsions or seizures, lowering of blood pressure, muscle rigidity, nausea, confusion and difficulty in communicating. Many of these symptoms, including the drowsiness, confusion, agitation and distress, are likely to be manifest to anyone in company with the person.
If the dose is large enough to cause death, the person is likely to feel at least a mild version of these symptoms within an hour of taking the drug and they are then likely to become more pronounced over the following few hours. Within the first hour or so, the person may still be able to communicate and answer a telephone, but the person is likely to suffer very severe symptoms within the first six hours. At that stage, the person would be unable to communicate or to send an intelligible SMS message.
In relation to the evidence, to which I will refer shortly, that Mr Ellbourn may have sent SMS messages at both 10.27 am and 10.36 pm on 8 May, the prosecution led evidence from Professor White to the effect that a person who had taken a fatal overdose of amitriptyline at about 10.00 am would not be able to communicate effectively about 12 hours later. If the overdose was sufficient to cause death, it is likely that after six hours the person would be severely drowsy if not comatose, and that condition would be likely to continue rather than to abate.
The Accused’s Access to Amitriptyline
The prosecution pointed to the evidence that the accused had access to amitriptyline and must have been aware of the dangers in its usage.
As previously noted, amitriptyline is the active agent in the anti‑depressant sold as Endep.
Dr Wagner commenced as the accused’s general practitioner in 2005 but was aware that she had been using Endep since 1998. He prescribed Endep to the accused on a regular basis. In the period from 17 February 2010 to 8 May 2011, prescriptions for Endep issued by Dr Wagner or other doctors in his practice were dispensed to the accused on 17 February 2010, 11 July 2010, 21 July 2010 and 15 April 2011. On each occasion 150 50mg tablets were dispensed. Accordingly, the accused had access to a plentiful supply of Endep and two witnesses, Ms Masnicki and Ms Adriaens, described seeing it in her home.
If the accused had used the Endep dispensed to her on 15 April 2011 at the maximum of the prescribed rate of four per day, she would still have had 58 tablets at 8 May 2011. If she used them at the minimum prescribed rate of two per day, she would still have had 104 tablets at 8 May.
Dr Wagner also prescribed Valium (diazepam) for the accused for anxiety and as a muscle relaxant. Between 2 January 2010 and 3 May 2011, prescriptions of Valium issued to the accused by Dr Wagner or other doctors in his practice were dispensed on some 28 separate occasions. Each prescription was for 50 tablets. Even if those prescribed on 3 May had been used at the higher prescribed rate of two tablets three times per day, the accused would still have had 20 tablets at 8 May.
On the other hand, Mr Ellbourn was not prescribed Endep or Valium in 2010 or 2011, and the drugs which were prescribed to him did not contain amitriptyline or diazepam. In the period from 1 January 2010 to 8 May 2011 Dr Mayne prescribed to Mr Ellbourn Panadeine Forte (a pain reliever), Maxolon (anti‑nausea medication), Tremadol hydrochloride (a pain reliever), Meloxicam (an anti‑inflammatory and pain reliever) and Duromine (an appetite suppressant). In addition, Dr Begg had prescribed dexamphetamine sulphate for the ADHD. No traces of these drugs were detected in the samples taken from Mr Ellbourn’s body at autopsy.
The Accused’s Knowledge of the Risks of Amitriptyline
The accused must have known of the risks associated with the use of Endep. Dr Wagner said that on several occasions he had discussed with her its adverse side effects, including tiredness, dopiness and weight increase. Of particular relevance presently, Dr Wagner said that he had discussed with the accused on several occasions the effect on her heart of taking too much Endep, explaining that it could cause cardiac irregularities leading to cardiac arrest. He warned the accused about keeping to the prescribed dosages and of the need for care when using it with other drugs. He said that many of his discussions with the accused related to the interaction of Endep with other medications and that these discussions always included advice that it could cause heart irregularity.
Thus, the evidence establishes that the accused had access to amitriptyline and was aware of the dangers of its use. Mr Ellbourn was not prescribed amitriptyline but it is possible that he had access to the tablets obtained by the accused. Timothy Ellbourn was aware that the accused had prescribed medications kept in a bedroom drawer and it is probable that Mr Ellbourn had a similar awareness. There is, however, no evidence that he had any particular awareness of the dangers of amitriptyline.
Administering Amitriptyline to Mr Ellbourn?
The prosecution contended that the accused had the means of administering a sufficient dose of amitriptyline to cause Mr Ellbourn’s death. Some witnesses gave evidence of admissions by the accused that she had given Mr Ellbourn a “special latte” or a “special coffee” which was understood to be coffee laced with some drug or medication. I will refer to this evidence shortly. The prosecution case was that this was the most probable, although not necessarily only, way by which the accused had administered amitriptyline and diazepam to Mr Ellbourn.
Amitriptyline comprises a minor portion only of an Endep tablet. In fact, 50mgs of amitriptyline may comprise less than 5 per cent of a tablet. The remainder will be material such as starch or talc which “bulk out” the tablet.
Amitriptyline is soluble in water as are some of the other ingredients. As the solubility of amitriptyline is 9.7mgs per millilitre, a little under 2,500mgs would dissolve in a standard cup (250 ml) of water. Professor White equated this to a little under 50 of the 50mg tablets. This is also the approximate amount which could be dissolved in a standard cup of coffee.
Ingredients such as talc are not soluble and, together with any other insoluble ingredients, would remain as a residue when the amitriptyline was dissolved.
To achieve the minimum amount of 600mg which has been known to be fatal, 12 of the 50mg tablets of Endep (that is, Endep tablets containing 50mg of amitriptyline) would have to be dissolved, but a standard cup of coffee is capable of dissolving much more. The same is true of a standard cup of water. Even if some of the other ingredients were soluble, it seems that standard cups of coffee and of water are capable of dissolving a sufficient amount of amitriptyline to provide a fatal dose.
If Mr Ellbourn had been minded to suicide or self‑harm and had access to amitriptyline, then it would have been possible for him to ingest a dose in the conventional manner for taking pills, that is, taking the tablets with water, or dissolving them in water. On the other hand, if the accused wished to poison Mr Ellbourn, it would have been possible for her to have dissolved a sufficient quantity of amitriptyline into a cup (or cups) of coffee or a glass (or glasses) of water and then to have induced him to drink it or them.
Finally, I note the difference in the evidence between Dr Gilbert and Professor White regarding the taste of amitriptyline. Dr Gilbert said that it would leave a bitter taste and a possible numbness on the tongue. Professor White was unaware of those matters. I cannot resolve the difference between these two experts but note that if Dr Gilbert is correct, the bitterness of a minimum of 12 tablets may be sufficient to deter a person from taking that quantity or, if being administered by someone else, may alert the person to the drug’s presence.
Use of “Special Latte” and “Special Coffee”
Three witnesses gave evidence of the accused telling them that she had given Mr Ellbourn a “special coffee”, a “special latte” or “a special cappuccino”.
Ms Masnicki said that the accused told her that, when she wished to go on a social outing without Mr Ellbourn, she would make him a “special coffee” with Valium in it. Ms Masnicki said that the accused would explain Mr Ellbourn’s absence on the outing by saying:
‘I made him a coffee’. ‘I put a load of Valium in his coffee’. ‘I made him a “special coffee”’, stuff like that.
The accused described the effect as making Mr Ellbourn sleepy so that he did not wish to go out with her. The accused had told her “a few times” that she had given Mr Ellbourn such a “special latte”.
I will refer later to Ms Adriaens’ evidence that, on what must have been 9 May 2011, the accused had told her that she had given Mr Ellbourn a “special latte”. As will be seen, I do not regard Ms Adriaens’ evidence generally as reliable, but this does not mean that her evidence on this topic is to be wholly disregarded.
Mr Eastley gave evidence of a conversation at the accused’s home on an occasion when he was in company with Mr Best. Other evidence indicated that this was on 17 March 2012, well after Mr Ellbourn’s body had been found and news of his death had become public. In the conversation, the accused said, in relation to a person called Greg, that she had given him “a coffee of something, cappuccino something, special cappuccino. I can’t remember the words back then”. It was “sleepers and stuff” and the accused had said that Greg had drunk it.

The manner in which Mr Eastley gave his evidence was unsatisfactory. I was not satisfied that he was even doing his best to give an honest and accurate account in much of the evidence. As with Ms Adriaens, I do not regard his evidence generally as reliable, and, if his evidence on this topic was the only evidence of its kind, I would not act on it.
However, after assessing Ms Masnicki’s evidence with the caution which I think is necessary, I do consider her evidence on this topic to be reliable. That is so quite independently of the evidence of Ms Adriaens and Mr Eastley. Accordingly, I am satisfied that the accused did tell Ms Masnicki on several occasions while Mr Ellbourn was still alive that she had given, or would give, him a special coffee, that is, a coffee which had Valium dissolved in it.
There is no reason to regard the accused’s statements to Ms Masnicki about her use of a “special coffee” as untruthful. I am satisfied that the accused had, on several previous occasions, laced Mr Ellbourn’s coffee with Valium. It follows that the accused must have been aware that Valium could be disguised in coffee and of the effects which it had on Mr Ellbourn. It does not of course follow that she would have had the same knowledge or experience in relation to the use of amitriptyline in coffee.
Having accepted Ms Masnicki’s evidence, it is appropriate to consider the combined effect of her evidence and that of Ms Adriaens and Mr Eastley. I note some differences. Ms Masnicki’s evidence relates to a time when Mr Ellbourn was still alive, and does not concern a fatal overdose. Ms Adriaens’ evidence seems to relate to a fatal overdose, whereas Mr Eastley’s evidence could relate to either circumstance. It seems reasonable to infer that the “Greg” of whom the accused spoke to Mr Eastley was Mr Ellbourn, but that is not necessarily the case.
My acceptance of Ms Masnicki’s evidence on this topic provides some support for the evidence of Ms Adriaens and Mr Eastley. There was no suggestion that Ms Masnicki, Ms Adriaens or Mr Eastley were known to one another, or that they had learnt somehow of the statements that the others (or either of them) attributed to the accused. It seems improbable that three witnesses, who did not know each other, would attribute to the accused statements of such a similar kind. However, the possibility that they may have heard something indirectly in general gossip about the accused in relation to the death of Mr Ellbourn should not be overlooked.
Taking all these matters into consideration, and despite my concerns about the evidence of Ms Adriaens and Mr Eastley, I consider that the accused may well have made statements to them that she had given Mr Ellbourn (in Mr Eastley’s case, a person who I conclude was Mr Ellbourn) a “special” form of coffee. It was special because it contained an additional substance such as Valium or some other drug.
It is appropriate to consider evidence of other circumstances before addressing the significance of this conclusion. I record at this stage, however, that the evidence concerning the accused having previously administered drugs to Mr Ellbourn by means of subterfuge is not be used as evidence of bad character or disposition. The evidence was admitted because it helps explain why the accused may have felt able to drug Mr Ellbourn on 8 or 9 May 2011 without fear of detection or protest from him. It may also demonstrate that the accused had an appreciation of the effects of administering prescribed medications to Mr Ellbourn and it may explain why Mr Ellbourn may have taken a drink containing a drug given to him by the accused.
The Events of Friday 6 May 2011 and Saturday 7 May 2011
As previously noted, Mr Ellbourn left the Diamond Brothers’ Depot at about 4.00 pm on Friday 6 May. There is no evidence as to the manner in which he left, that is, whether in his own vehicle or otherwise. Mr Ellbourn’s movements for the remainder of that day are not known and there is no witness who saw him in the company of the accused on 6, 7 or 8 May 2011.
Some matters may be able to be inferred from the telephone records, especially as they indicate a pattern of frequent communication between Mr Ellbourn and the accused in the week before 8 May.
The telephone records indicate two telephone calls from Mr Ellbourn’s mobile phone 5477 to Mr Merrick’s phone at 3.02 pm (for 11½ minutes) and at 3.45 pm (for 8½ minutes) respectively on 6 May, that is, before he finished work, and a further call to Mr Merrick at 5.47 pm (for 5½ minutes). Between 4.41 pm and 5.47 pm up to 10 text messages were sent from Mr Ellbourn’s phone 5477 to the accused’s mobile phone 4813. There were no further communications from Mr Ellbourn’s phone after that time on 6 May.
Two SMS messages were sent from the accused’s mobile phone 4813 to Mr Ellbourn’s phone 5477 at 4.27 pm and 5.46 pm. A further three SMS messages were sent by the accused to Mr Ellbourn that evening; one at 10.28 pm and two more at 11.55 pm.
In the early hours of Saturday 7 May 2011 there was regular communication between Mr Ellbourn’s phone 5477 and the accused’s phone 4813. The call records show 17 SMS messages sent from Mr Ellbourn’s phone 5477 to the accused’s phone 4813 between 1.29 am and 3.02 am, although some of these may have been continuations of the one message. In the same period three SMS messages were sent from the accused’s phone 4813 to Mr Ellbourn’s phone 5477 (at 1.45 am, 1.50 am and 1.55 am). The number and pattern of these communications may suggest that Mr Ellbourn and the accused were not in each other’s company in this period.
From 3.02 am to 9.19 am on 7 May, there were no communications from Mr Ellbourn’s phone 5477. This would be consistent with Mr Ellbourn being asleep for much of this period.
From 9.19 am on Saturday 7 May to 12.22 am on 8 May, there were some 34 communications from Mr Ellbourn’s phone 5477. 26 of these were to the accused’s phone 4813 and were by SMS message. Between 4.38 pm and 11.46 pm on 7 May there were 9 communications from the accused’s phone 4813 to Mr Ellbourn’s phone 5477. It may be reasonable to infer that Mr Ellbourn was not in the accused’s company at the time of these respective communications, but any inference that they were in each other’s company at other times based on an absence of phone communication may be more problematic.
The Events of Sunday 8 May 2011
Mr Ellbourn’s phone 5477 was not used between 12.22 am and 9.10 am on Sunday, 8 May 2011. This is consistent with him having been asleep during this period.
There is no direct evidence of where Mr Ellbourn slept. On some previous occasions when the accused had not let him sleep at 12 Gabriel Street he had slept in his car. However, there was no evidence at all about the use or location of Mr Ellbourn’s car on 7 and 8 May. He did not sleep at either Ms Folkers’ or Mr Merrick’s homes as he had on some previous occasions.
On this day, with the exception of an SMS message at 12.22 am, there were no messages from Mr Ellbourn’s phone 5477 to the accused’s phone 4813, nor were there any communications from the accused’s phone 4813 to Mr Ellbourn’s phone 5477, nor from the accused’s landline (last four digits 3537) to Mr Ellbourn’s phone. There may be a number of explanations for the absence of communications: for example, they may have been in each other’s company until the time of Mr Ellbourn’s death; they may have had a falling out; or the accused may have been fully engaged with her mother or her own children (or both) on that Mothers Day (for at least parts of the day). It may also be because Mr Ellbourn was dead, or already significantly affected by medications.
The call records for Mr Ellbourn’s phone 5477 indicate that on 8 May, apart from the SMS message to the accused at 12.22 am, he sent only seven SMS messages. Four of these were to Ms Folkers (at 10.27 am, 11.05 am, 11.10 am and 10.36 pm) and three to Mr Merrick (at 10.29 am, 10.44 am and 11.06 am). In addition there was one communication of unspecified type to Mr Merrick at 9.10 am.
Alison Folkers
Ms Folkers was a good friend of Mr Ellbourn. The call charge records for the landline in the accused’s home shows that on 8 May two calls were made to Ms Folkers’ mobile phone: at 8.50 am (for 21 seconds) and 8.51 am (for seven seconds). As I accept Ms Folkers’ evidence that she had never met the accused, it is unlikely that it was the accused who made those calls. I infer that it was Mr Ellbourn. From this, it can be inferred that he was in the accused’s home at 8.50 am on 8 May and this, in turn, may support the inference that he had spent the night there. Further, if Mr Ellbourn did give the accused a necklace on Mothers Day (as Mr Bonney said the accused had told him), that too may suggest that he and the accused were in each other’s company for at least part of 8 May.
It was an agreed fact that the SMS message which Ms Folkers received from Mr Ellbourn’s phone 5477 at 10.27 am on Sunday 8 May read:
I at beach. Tok sum pills. She no want me a? I love her so much. Dont now wat 2 do?
Ms Folkers said that immediately upon receiving this message she called Mr Ellbourn and spoke to him for a few seconds (later she said that her call would not have been “very long, not even five minutes”). She gave the following account of this call:
AIt wasn’t really a legible conversation. I know that I was asking him questions about where he was and what’s happened, but honestly I didn’t get really any legible sense from him. I couldn’t understand what he was saying.
QHow did he sound to you?
AHe sounded very distressed and not able to communicate properly.
QWas there anything in particular about what you could hear that had you form the impression that he was distressed?
AJust the sound of his voice, and the tone of his voice, and not being able to string his words or sentences together properly.
Ms Folkers said that she had not been able to understand what Mr Ellbourn was saying and could not get Mr Ellbourn to tell her where he was.
Ms Folkers said that during the course of 8 May she tried ringing Mr Ellbourn every now and again and had also sent SMS messages. She had been able to get through a couple of times but then could not. She thought that in one of the SMS messages she had said:
Don’t worry about what anyone else thinks. If you want to be with Caz, then be with Caz.
The telephone call records generally support Ms Folkers’ account of her communications to Mr Ellbourn’s phone on 8 May. There were calls from Ms Folkers’ phone to Mr Ellbourn’s second phone 9964 at 12.08 pm, 3.32 pm and 10.14 pm but these calls were not answered. In addition, the records show one call from her phone to Mr Ellbourn’s phone 5477 on 8 May, that being a 48 second call at 3.38 pm. That was just over five hours after Mr Ellbourn’s SMS message at 10.27 am. Further still, the telephone call records do confirm that Ms Folkers sent eight SMS messages to Mr Ellbourn’s phone 5477, commencing at 9.57 am and concluding at 10.39 pm.
There is no evidence as to the content of the messages sent from Mr Ellbourn’s phone to Ms Folkers’ phone at 11.05 am and 11.10 am.
Thus the telephone records are generally supportive of Ms Folkers’ evidence but they do not indicate that she had a conversation with Mr Ellbourn immediately after his SMS message at 10.27 am. Nevertheless, I thought that Ms Folkers was generally a careful and reliable witness. I consider that she is mistaken in thinking that the call which she recounted occurred shortly after 10.27 am and that it was instead the call of 48 seconds at 3.38 pm. I accept her evidence that Mr Ellbourn sounded distressed at the time, and consider that her difficulty in understanding him cannot be attributed to some extraneous cause, for example, a poor quality telephone connection.
The final SMS message from Mr Ellbourn’s phone 5477 to Ms Folkers’ phone was at 10.36 pm on 8 May. This was also the last communication from either of Mr Ellbourn’s phones. Ms Folkers said that the message read: “I’m with my honey”.
I will return shortly to address the evidential uses of the text messages received by Ms Folkers at 10.27 am and 10.36 pm.
Richard Merrick
Mr Merrick also gave evidence of communications which he had had with Mr Ellbourn on or about 8 May. Unfortunately, there was some confusion in Mr Merrick’s evidence as to the date or dates on which the communications occurred and as to their timing.
Mr Merrick said that just after Easter in 2011 (Easter Sunday was 24 April – two weeks before 8 May), Mr Ellbourn spoke to him by telephone, telling him that he was going to the Arkaba Hotel with two women who he had met at a truck stop. He asked Mr Merrick to pass on a message to the accused to let him into the house in order that he could get his clothing and some paperwork. He thought that this communication may have occurred a day and a half before his last communication with Mr Ellbourn (which other evidence indicated was on 8 May).
Mr Ellbourn called him again (apparently later on the same day) and told him that he was breaking into the accused’s home through the rear window in order to gain access to his belongings. Mr Merrick said that he received a third call from Mr Ellbourn (apparently shortly afterwards) asking him to pass on a message to the accused that he wished to speak to her and needed access to her home. Mr Merrick did call the accused in response to Mr Ellbourn’s request, but could not make contact.
Next, Mr Merrick said that he received a text message from Mr Ellbourn “in the early hours of the morning” saying “Help me”. He did not respond to that message.
Three or four hours later he received a text message which read “uur”, but he did not know from where it had come. He replied asking, “Who is this?” but did not receive a response.
Mr Merrick also said that on the same day that he received the “Help me” and “uur” messages, but after midnight and before receiving those messages, he had received another text message from Mr Ellbourn’s phone. That message asked him to get the accused to help him and was signed “Gidge”. Mr Merrick considered that this message was strange for two reasons: he did not know the name “Gidge” as, in his communications to him, Mr Ellbourn always signed himself as “Gregory” or “Greg”; and, secondly, although Mr Ellbourn’s spelling was “atrocious”, this message was correctly spelt. Both Ricky and Timothy Ellbourn confirmed that their father’s spelling was poor.
The call charge records for Mr Ellbourn’s phone 5477 do show one voice communication to Mr Merrick’s phone at 5.32 pm on 7 May, one communication of uncertain type at 9.10 am on 8 May, and three SMS messages at 10.29 am, 10.44 am and 11.06 am respectively on the same day. The nature, number and timing of these communications do not support Mr Merrick’s oral evidence. In particular they do not indicate that Mr Ellbourn had any voice communications with Mr Merrick on 8 May. It is possible that Mr Merrick is mistaken, in particular as to the time he received the SMS messages to which he referred in his oral evidence. That is particularly so having regard to the contemporaneity of the SMS messages to his phone between 10.29 am and 11.06 am, on the one hand, and the 10.27 am, 11.05am and 11.10 am SMS messages to Ms Folkers’ phone, on the other.
The call charge records for the accused’s phone 4813 show one voice call and seven SMS messages to Mr Merrick’s phone before 9.20 am on Sunday 8 May 2011. There is no evidence as to the subject matter of those communications but it is, I suppose, at least theoretically possible that Mr Ellbourn may have used the accused’s phone for some of the communications to Mr Merrick. I think this is unlikely but the possibility cannot be ignored.
Other Matters on 8 May
The absence of telephone communication between Mr Ellbourn and the accused on 8 May, in contrast with the level of communication on previous days, may suggest that, if Mr Ellbourn was mentally alert on that day, he was in the company of the accused. However, the fact that there was no use of Mr Ellbourn’s phone between 11.10 am and 10.36 pm on 8 May may also indicate that he was already significantly affected by a drug overdose during that period.
Mr Bonney said that in a telephone conversation occurring during the week commencing 9 May, the accused told him that she and Mr Ellbourn had had an argument on Mothers Day, or the day before, and that she had not seen him since. In their conversation a few days later the accused repeated that she and Mr Ellbourn had had an argument and added that she had told him to leave.
It is pertinent to note that one significant event which should have happened on 8 May did not occur. Mr Ellbourn did not go to work as expected in the early afternoon. Nor did he take any steps to alert Diamond Brothers that he would not be attending.[7] That was despite his reputation as a reliable and punctual employee who enjoyed his job. By itself this suggests that something significant must have happened to Mr Ellbourn by at least the early afternoon.
[7] The telephone call records indicate one 30 second call to the phone of Con Diamond at 9.19 am on Saturday 7 May 2011 but there was no evidence about the content of that call.
Little is known of the accused’s movements on 8 May. As just indicated, the absence of telephone communication between Mr Ellbourn and the accused on 8 May may suggest that they were in each other’s company or, perhaps, that the accused and Mr Ellbourn had had a falling out, that she knew that Mr Ellbourn was unable to communicate, or perhaps that she was fully engaged in Mothers Day activities.
The accused’s call charge records indicate that on 8 May there was no use of her mobile phone 4813 between 12.32 am and 4.03 am and between 6.51 pm and 10.42 pm. Between 4.38 am and 9.19 am there was just one three second call at 5.50 am and one SMS message at 7.30 am. Between 9.23 am and 1.56 pm there was just one telephone call at 12.21 pm. Apart from those periods, the accused made frequent use of her mobile phone throughout the day.
It may be pertinent that there is no suggestion in the accused’s telephone call records that she informed Diamond Brothers on 8 May that Mr Ellbourn would not be attending for work.
The Events of Monday 9 May 2011
I have already noted that there were no communications from Mr Ellbourn’s mobile phone on 9 May 2011 or thereafter. The prosecution case is that this was because he was dead.
There is evidence about the accused’s activities on Monday 9 May which indicates that by the early hours she knew that Mr Ellbourn was dead in her house. Ultimately the accused did not seem to dispute that Mr Ellbourn was dead by this time. In fact, her counsel seemed to accept that the evidence justified a finding that Mr Ellbourn had died in her home.
The call charge records for the accused’s mobile phone 4813 indicate that she did not make any use of her phone between 10.42 pm on 8 May and 2.00 am on 9 May 2011. Nor was there any use of the accused’s landline in this period. A possible explanation is that the accused was asleep in her own home but there may be other explanations. Given her previous patterns of phone use it may be reasonable to infer that, if she was away from the house, she would have made some use of her mobile phone.
Between 2.00 am and 4.20 am, the accused made 15 communications from her mobile phone, 12 of which were voice calls. It may well be the case that by this time the accused knew that Mr Ellbourn was dead. Two of the calls between 2.00 am and 4.00 am were to the phone used by Angela Adriaens; a call of just under seven minutes at 3.16 am and a call of just under six minutes at 4.20 am.
Angela Adriaens
Ms Adriaens gave evidence to the following effect. She has known the accused for about four years having met her through the accused’s activities in selling prescription drugs. The accused would supply the drug OxyContin to her friend. Ms Adriaens said that she admired the accused and regarded her as a role model.

Finally, I note that in his final address counsel for the accused emphasised that she had not challenged the evidence concerning the movement of the body. This was not quite a concession that the accused had been involved in the movement of the body to the Myponga site. However, once it is accepted (as I do) that the body was kept in the accused’s shed immediately before being moved, it is but a short step to conclude that the accused was involved in its movement, at the least as the person organising it.
Post-event Conduct
In addition to the evidence of the storage and movement of Mr Ellbourn’s body, the Director referred to other post-event conduct, that is, conduct occurring after 9 May 2011. This included the accused’s lies; her attempts to obtain monies owing to Mr Ellbourn by Diamond Brothers; her accessing of Mr Ellbourn’s bank accounts; the arrangements she made to have Mr Ellbourn’s 2011 tax return completed and lodged, and her use of his taxation refund; the calls to Mr Ellbourn’s phone; and her attempt to have Ricky Ellbourn forge his father’s signature on a “government” document shortly after his death.
I will summarise the evidence concerning the post-event conduct under the headings which follow. All of the conduct is to be understood as having occurred in the context of the accused’s knowledge that, from at least the early hours of 9 May 2011, Mr Ellbourn was dead.
The Accused’s Lies
After 8 May 2011, the accused told a number of lies concerning Mr Ellbourn’s disappearance and whereabouts.
First, in the week commencing 9 May the accused told Mr Arthur Diamond at Diamond Brothers, that she was unhappy because Mr Ellbourn had “abandoned” her.
Secondly, a letter which the accused wrote to Diamond Brothers dated 12 June 2011 included the following passages:
As you know, Gregory Ellbourn has failed to contact you to advise you of his reasons (INEXCUSABLE & UNFORGIVABLE) for deserting/abandoning his position/interstate truck driving employment with your company “Diamond Bros Transport”.
…
Since the 7^th May (Saturday before Mothers Day) I have been unable to contact Greg on both his mobile phone numbers, & have been unable to locate Greg’s exact whereabouts, but have heard that he has moved in with another woman (VICTIM) in the State of VIC.
(Capitals in the original)
I note that in the same letter the accused made a number of statements blackening Mr Ellbourn’s name in an apparent attempt to induce Diamond Brothers to make payment to her of Mr Ellbourn’s outstanding employment entitlements.
Thirdly, Mr Bonney gave the evidence (previously summarised) to the effect that in May 2011 the accused had told him that she and Mr Ellbourn had had an argument on Mothers Day, or the day before; that she had told him to leave; that she had not seen him since; and that she believed he was living with another woman in Victoria. The statement concerning the argument and her having told Mr Ellbourn to leave may not have been a lie but, plainly, the remaining statements were dishonest.
Fourthly, the evidence established that the accused had, in September and October 2011, told two staff members in the accountancy firm which she had instructed to prepare Mr Ellbourn’s tax return, that Mr Ellbourn was working “up north” and that she required his tax refund in order to travel to visit him.
Fifthly, there are the statements which the accused made to Sgt Woods on 12 November 2011. The accused told Sgt Woods that her relationship with Mr Ellbourn had ended when he left her on Mothers Day 2011; that she had “caught up” with him in May 2011 when “he called in to say hi”; that she had heard from a friend that Mr Ellbourn had “hooked up with a girl in Victoria”; and that she was “upset and angry as [she] felt he had abandoned [her] and hooked up with someone else”. The accused went on to give some brief detail of the “new woman” in Mr Ellbourn’s life, saying that “she is blonde, beautiful and has a brand new white VS, SS Commodore”. The accused did not give any information to Sgt Woods on 12 November regarding Mr Ellbourn’s death on 8 or 9 May 2011 or her storage and disposal of his body.
I note that the accused made other statements to Sgt Woods disparaging Mr Ellbourn. In particular, she asserted that he was involved in the interstate transport of marijuana and implied that he had “bikie” connections. There is no evidence that Mr Ellbourn was involved in the transporting of, or dealing with, drugs, and the evidence of Ricky Ellbourn (which on this topic I accept) is to the contrary. The evidence previously summarised concerning the accused’s activities suggests that it was she, and not Mr Ellbourn, who was involved in the sale of illicit drugs and of the medications prescribed to her by Dr Wagner. I consider that the statements concerning Mr Ellbourn’s supposed drug involvement were untruths. I infer that the accused made these statements to Sgt Woods in order to create the impression that Mr Ellbourn’s disappearance may, in some way, be linked to his involvement with drugs.
I am satisfied that the accused did make the statements which I have summarised above and that those statements were dishonest. I exclude from that conclusion the statement concerning the accused’s argument with Mr Ellbourn and her having told him to leave. It is possible that each of those statements was true.
Efforts to Obtain Mr Ellbourn’s Employment Entitlements
I accept Mr Diamond’s evidence that, in a telephone call or telephone calls in the week commencing 9 May 2011, the accused asked for payment of Mr Ellbourn’s accrued wage entitlements. I also accept his evidence that he informed the accused that there would be no refund of the deposit which Mr Ellbourn had paid for the truck and depot keys unless and until those keys were returned. The keys were in fact returned to Diamond Brothers anonymously on about 16 May 2011. I am satisfied that it was the accused who returned them.
Accessing Mr Ellbourn’s Bank Accounts
After 9 May 2011, the accused withdrew money from Mr Ellbourn’s bank accounts and used the funds for her own purposes.
On 18 April 2011 Mr Ellbourn had requested that BT Superannuation make a “hardship” payment to him from the superannuation account which it held in his name. In accordance with that request by electronic transfer, BT Superannuation paid $7,065 into Mr Ellbourn’s Westpac bank account on 9 May 2011.[22] By a series of withdrawals, commencing on 19 May and concluding on 27 May, the accused withdrew all of those funds from that account.
[22] Paragraph 8 in Exhibit P49 contains an agreed fact that the deposit was made on 4 May 2011. However, this appears to be a mistake as the bank statement shows that the transfer occurred on 9 May 2011.
Further, on 19 May 2011, the accused used the $250 paid by Diamond Brothers into Mr Ellbourn’s NAB account in part-payment of the Telstra account for her home phone.
Preparation and Lodgement of Mr Ellbourn’s 2011 Tax Return
I accept the evidence which indicates that, commencing in mid-September 2011, the accused provided instructions to an accountancy firm to prepare Mr Ellbourn’s 2011 tax return, including by providing the documentation relevant to that return. Thereafter, in a number of telephone conversations, the accused sought to expedite the preparation of the return and the payment of the tax refund. Eventually, the tax refund of $2,948.87 was paid by the accountancy firm into Mr Ellbourn’s Westpac account on 31 October 2011. In the period commencing on 4 November 2011 and concluding on 9 November 2011 the accused made a series of withdrawals from that account, until the proceeds of the taxation refund were effectively depleted.
Calls to Mr Ellbourn’s Phone
The telephone call records for the accused’s phone 4813 indicate communications from that phone to each of Mr Ellbourn’s phones (5477 and 9964) on 11, 12 and 13 May 2011. All but two communications on 11 May 2011 were by SMS message. At least one SMS message was sent from the accused’s phone to each of Mr Ellbourn’s phones on each day. Depending on the proper interpretation of the telephone call records, it is possible that more than one message was sent on 11 May and 12 May.
It is possible, but in my opinion improbable, that the accused had provided Mr Ellbourn’s phones to someone else who was using them at the relevant times. I also consider it probable that it was the accused who made the communications, as there is no suggestion that anyone else had use of her phone on those days.
Given that Mr Ellbourn was deceased, there was no point to these communications, and the accused knew that. This gives rise to the inference that she was endeavouring to create a false trail, by creating the appearance of circumstances consistent with a belief on her part that Mr Ellbourn was still alive and that she was trying to make contact with him. This was dishonest.
Ricky Ellbourn and the “Government” Document
Ricky Ellbourn gave evidence that, about one week after guaranteeing his father’s bail at the Christies Beach Police Station on 4 May 2011, the accused arranged to meet him at Aldinga. In the course of their conversation, the accused asked him to forge his father’s signature on some “government forms”. He refused to do so even though the accused offered him some 2 grams of marijuana.
There was no other evidence in the trial relating to this incident or identifying the “government forms”. I accept Ricky Ellbourn’s evidence that the incident did occur as he described and conclude that it was probably after 9 May. It appears therefore to have involved a cruel deception of Ricky Ellbourn as to his father’s disappearance. However, I do not regard this item of post-event conduct as significant to the issues in the trial, and will say no more about it.
Use of the Evidence of Post-event Conduct
As I have previously indicated, the accused’s post-event conduct and, in particular, her lies, may be used as part of the circumstantial case against her. Duggan J referred to the use of evidence in this category in R v Loader:[23]
Conduct after an offence designed to create the impression that an offence has not been committed or that the accused had no connection with the offence constitutes a well-known category of circumstantial evidence in criminal cases.[24]
(Citation omitted)
[23] [2004] SASC 234; (2004) 89 SASR 204.
[24] Ibid at [30]; 212.
The lies suggest an attempt by the accused to create the impression that Mr Ellbourn was still alive and to distance herself from his disappearance. The communications by the accused to Mr Ellbourn’s mobile phones fall into the same category as does the concealment of Mr Ellbourn’s body in the accused’s shed. However, I do not think that the same can be said in respect of the remaining items of post-event conduct discussed in this section. They appear to be in the nature of opportunistic steps taken by the accused to secure a financial advantage for herself, and prompted by her avarice. This conduct may provide evidence of the accused’s knowledge that Mr Ellbourn was dead, but that acknowledgment was made by the accused’s counsel and is, in any event, demonstrated by other evidence which I have accepted.
The evidence of the accused’s fraudulent post‑event conduct was admitted under s 34P of the Evidence Act 1929 (SA). While it may be used to support the prosecution circumstantial case on the topics of the accused’s knowledge of Mr Ellbourn’s death, her motive and to counter the suggestion of suicide or self‑harm, it is not to be used as a basis for reasoning that the accused is of bad character or that she has a disposition to the commission of crime.
Motive
Although the prosecution does not have to establish a motive, the Director pointed to evidence suggesting that the accused had a financial motive.
I have already referred to the evidence concerning the accused’s close interest in Mr Ellbourn’s pay and of her conduct after his death in making use for her own purposes of the monies in his bank accounts. There is the evidence of the accused’s endeavours to have Mr Ellbourn’s accrued employment entitlements paid to her, and the action she took to have his 2011 tax return completed and the refund paid into the Westpac account to which she had access.
There is also evidence that the accused had a close interest in Mr Ellbourn’s superannuation funds and in the death benefit payable under an insurance policy forming part of his superannuation arrangements. That death benefit was $200,000 and Mr Ellbourn had named the accused as the beneficiary of the benefit.
Markings made by the accused on the documents from BT Super regarding the superannuation arrangements and the death benefit indicate a close interest by her in those matters. I accept that there could well be an innocent explanation for that interest. Many dependants, spouses or partners would have a like concern for their financial security. However, given the accused’s attitude towards Mr Ellbourn which I summarised earlier, such an innocent explanation in the present case seems unlikely.
There is also evidence from Ms Masnicki which bears on this topic. Ms Masnicki said that the accused had told her, on more than one occasion, that following her break‑up with Mr Szigeti, she had managed to get $20,000 from his superannuation. Further, the accused told Ms Masnicki that she hoped to get enough money “to pay for a hit” on Mr Ellbourn by making a similar claim in respect of his superannuation funds. Ms Masnicki said that the accused made statements of this kind on quite a few occasions over a period of about one year. I accept that evidence.
On 18 April 2011, Mr Ellbourn telephoned BT Super, the manager of his superannuation fund, and had it confirm that the death benefit was $200,000 and that Ms Koenig was the named beneficiary. There is no direct evidence as to why Mr Ellbourn made that call at that time. However, having regard to the accused’s close interest in his financial affairs, I infer that it was at the accused’s instigation and that she was aware of the information which BT gave to Mr Ellbourn. I note that it was on that same day that Mr Ellbourn made his second application to BT Australia for the “hardship” payment of $9,000 from his superannuation funds. I infer too that the accused was the instigator of that application.
The strong impression from all the evidence in the trial is that the accused is a person motivated by greed. Further, the accused had a clear appreciation of the potential financial benefits to her if Mr Ellbourn died in circumstances in which she was not implicated.
I have referred earlier to the evidence concerning the assertions by the accused that Mr Ellbourn owed her money and, in particular, some $35,000. It is not possible on the evidence to reach any firm conclusion as to whether Mr Ellbourn was in fact so indebted. On one view of the evidence, it does seem unlikely but one cannot altogether exclude the possibility that the accused had discharged some liabilities of Mr Ellbourn so as to give rise to an indebtedness.
One thing is clear: if Mr Ellbourn was indebted to the extent of $35,000, then even after crediting him with the amount of the hardship benefits obtained from his superannuation fund which were used by the accused, it was going to take Mr Ellbourn a considerable time before he could discharge the debt.
It is immaterial, in my opinion, that the accused had not in fact made a claim for the death benefit by 12 November 2011. First, that would have been inconsistent with the impression that Mr Ellbourn was still alive which she had endeavoured to create. Secondly, in practical terms a death benefit would not be paid until it was known that Mr Ellbourn was dead, and that could not occur while the accused was concealing his body. It may well be that the dumping of Mr Ellbourn’s body at the Myponga site occurred in order that his body could be found so that, in due course, the accused could make the claim for the death benefit. The timing of the dumping is explained by the accused having waited until she received the tax refund, which, as noted earlier, was paid into Mr Ellbourn’s account on 31 October 2011 and which, after clearance of the cheque, became available a few days later.
However, the fact that the accused concealed Mr Ellbourn’s body for a period of about six months may suggest that the desire to obtain the death benefit may not have been a major consideration in her mind at the time at which she determined on that concealment.
In my opinion, the evidence does establish that the accused had a financial motive for causing Mr Ellbourn’s death.
Perhaps paradoxically, the finding that the accused had such a motive operates in her favour in relation to the evidential use of at least some of her lies. That is because those lies may be attributable to an opportunistic attempt by the accused to secure for herself the financial entitlements of Mr Ellbourn comprising his accrued employment entitlements, the superannuation hardship benefit and the taxation refund. In other words, the lies do not necessarily reflect an appreciation by the accused that disclosure of the true circumstances would implicate her in criminal responsibility for Mr Ellbourn’s death but may instead have been part of her dishonest stratagem to obtain financial benefits. That may make it inappropriate to use the lies as evidence of her guilt of the murder of Mr Ellbourn.[25]
[25] Edwards v The Queen (1993) 178 CLR 193.
The lies to Sgt Woods on 12 November 2011 are more naturally to be understood as an attempt by the accused to distance herself from Mr Ellbourn’s death.
Suicide or Accidental Overdose?
In his closing submissions, counsel for the accused submitted that death by suicide or by accidental overdose could not be excluded as a reasonable explanation for Mr Ellbourn’s death. He described this as “the” live issue in the trial.
Counsel’s submissions accepted that the cause of Mr Ellbourn’s death was his ingestion of a lethal amount of amitriptyline. Counsel mentioned a number of matters: that Dr Gilbert had acknowledged that the autopsy examination did not exclude suicide or accidental overdose as the cause of death; that Dr Gilbert had said that the fractures to the cricoid cartilage may well have occurred after death and there was no evidence of any other violence to Mr Ellbourn’s body; that Mr Ellbourn’s ADHD meant that if he had not taken his prescribed dosage of dexamphetamine, he may well have been given to impulsive and irrational behaviour; that no traces of the dexamphetamine prescribed for Mr Ellbourn’s ADHD had been found in his body at autopsy (which was consistent with him not having taken his prescribed dose); that Dr Begg had said that impulsivity is a risk factor for suicide; and that Mr Ellbourn may also have suffered from depression as Dr Begg had considered that some depression was present when he first saw him in March 2010.
In addition, counsel emphasised the evidence indicating that Mr Ellbourn loved the accused; that Mr Ellbourn had become emotionally disturbed when, in March 2010, he and the accused had split up for a time (to the point that he had sought medical help from Dr Mayne and, in turn, from Dr Begg); that there were conflicts in the relationship in the months leading up to May 2011; that there may well have been another split up on 8 May at the accused’s instigation; that Mr Ellbourn may well have been in some form of situational crisis on 8 May 2011 as evidenced by his SMS message at 10.27 am that day; that Mr Ellbourn may well have been intent on some form of self‑harm in response to that crisis; and that he must have had access to the accused’s Endep tablets; and he submitted that Mr Ellbourn may have taken the Endep tablets in an attempt to inflict self‑harm not knowing that a dose as little as 600mg (12 50mg tablets) could be fatal.
Counsel for the accused submitted that the evidence of Ms Masnicki, Mr Squires, Mr Dougherty, Mr Evans and Ms Coad, which I summarised earlier, should not be regarded as reliable. I have already made some findings regarding that evidence which took account of counsel for the accused’s critique.

Counsel for the accused submitted that the accused’s post‑event conduct, in particular her concealment of the body and her lies about Mr Ellbourn’s whereabouts and his abandonment of her, could be attributed to panic or, perhaps, an appreciation by the accused that she was guilty of some offence other than the murder or manslaughter of Mr Ellbourn. In any event, he submitted that the lies should not be regarded as evidence of a consciousness by the accused of her guilt. He submitted that they could more naturally be attributable to the accused’s apprehension about being falsely implicated in Mr Ellbourn’s death. This was because the accused may well have appreciated that she would be suspected of being responsible for Mr Ellbourn’s death, having regard to the attitude to him which she had previously made manifest to a number of witnesses.
Finally, counsel for the accused emphasised that the evidence did not even establish that the accused and Mr Ellbourn had been in each other’s company at all on 8 May. He submitted that the evidence was consistent with the accused having come home late on 8 May, or in the early hours of 9 May, to find Mr Ellbourn dead on her bed.
Consideration
I consider that Mr Ellbourn died from a lethal dose of amitriptyline. The fractures to the cricoid cartilage must have occurred after his death.
The real question in the trial is whether the prosecution has excluded as a reasonable possibility that Mr Ellbourn took the lethal dose (or doses) voluntarily, either in suicide or in an attempt to self‑harm.
The circumstantial case against the accused on this issue is strong. By May 2011 her relationship with Mr Ellbourn had soured badly. While he loved the accused, she had come to loathe him and to regard him with contempt. Her remaining interest in him was principally of a financial kind. The accused treated Mr Ellbourn badly by excluding him from her house at the times when his presence did not suit her and exercised control over him, in particular over his financial affairs, to her own advantage. I consider that the accused was able to take advantage of Mr Ellbourn’s love of her when it suited her purposes.
Mr Ellbourn must have died in the accused’s home. The lethal dose was of a medication prescribed to the accused but not to him. The last SMS message from Mr Ellbourn’s phone to Ms Folkers on 8 May 2011 (at 10.36 pm) suggests that, at least at that stage, he was with the accused. When Mr Ellbourn died, the accused did not behave in the way one would ordinarily expect, by notifying the police or obtaining an ambulance. Instead, she embarked, almost immediately, on steps to conceal his body and shortly afterwards to mislead his family, his employer and others into thinking that he was still alive but had abandoned her. This included the extraordinary step of storing his body, at least for a time, in her back shed.
The accused had the means of administering the lethal dose of amitriptyline to Mr Ellbourn. Amitriptyline was prescribed to her in the form of Endep, and she had more than an adequate amount for a lethal dose. The accused knew the way in which the Endep could be consumed and knew of the potential dangerous effects of an overdose. In addition, the accused had previously given Mr Ellbourn, by means of subterfuge, doses of a medication which was not prescribed to him. She was accordingly familiar with the means by which Mr Ellbourn could be induced, by pretext, to take drugs of which he was unaware. In addition, there is the evidence of Ms Adriaens and Mr Eastley, which I regard with some caution, that after the death of Mr Ellbourn, the accused admitted giving him a “special” form of coffee, that is, a coffee laced with a drug.
The evidence indicates strongly that the accused wished Mr Ellbourn to be dead. She said as much to Ms Masnicki and, in about April 2011, had gone so far as to attempt to contract with Mr Squires and Mr Dougherty to effect his killing. The coincidence in timing between this attempt and Mr Ellbourn’s death is striking.
In addition, on the morning of 12 May 2011, the accused told Mr Evans and Ms Coad, in what must have been a reference to Mr Ellbourn, that she had killed him. Theoretically at least, that admission may have been only an acknowledgment of her moral responsibility for Mr Ellbourn’s death and not that she had actually killed him. However, in the context of the accused’s previously expressed attitude to Mr Ellbourn and her willingness to pay to have him killed, this seems unlikely. The evidence about those matters does not suggest that the accused would have felt remorse or the need for solace in relation to the death of Mr Ellbourn, or that she is the kind of person who might have felt morally blameworthy for the outcome of a suicide or self‑harm attempt by him.
One cannot reach a firm conclusion as to the reason for the accused going to the Evans-Coad home in the early hours of 12 May 2011. The most likely explanation is that she intended to seek help in moving Mr Ellbourn’s body.
The accused stood to benefit financially from Mr Ellbourn’s death and she was aware of that fact. This had been confirmed by Mr Ellbourn as recently as 18 April 2011, and I am satisfied that he did so at the accused’s instigation. In addition, it is apparent that after May 2011 the accused did move to secure for herself financial benefits, taking advantage of the circumstance that Mr Ellbourn was dead.
Neither Dr Mayne nor Dr Begg considered Mr Ellbourn to be a suicide risk. Dr Mayne’s evidence on this topic is particularly important. She had been Mr Ellbourn’s general practitioner since 1993 and had seen him at times of difficulty, including his separation from the accused in March-April 2010. With the exception of a “bit of anxiety/depression” following a truck accident in 2008 and again in September 2009, Mr Ellbourn had never presented with, nor been treated for, a mental illness. In 2008, and again in September 2009, he was prescribed only a very small dose of an anti‑depressant. Between late 2008 and May 2011, Dr Mayne saw Mr Ellbourn monthly (to issue prescriptions of Panadeine Forte in respect of his painful back). Dr Mayne said that she had never regarded Mr Ellbourn as being at risk of suicide or self‑harm.
When Mr Ellbourn saw Dr Begg on 30 March 2010, he was very distressed. The cause was his recent separation from the accused and her ejection of him from her home. Even so, Dr Begg considered that the risk of Mr Ellbourn suiciding at that time was low. When Dr Begg saw Mr Ellbourn on 6 April 2010 he was confident that he was not suffering from a major depressive disorder. He did not prescribe any anti‑depressants and considered that Mr Ellbourn had not appeared suicidal on any of the four occasions on which he saw him.
Considered in combination, these matters indicate that the prosecution circumstantial case is strong.
However, there are some other matters. The most significant is the SMS message which was sent from Mr Ellbourn’s phone to Ms Folkers at 10.27 am on 8 May 2011, namely:
“I at beach. Tok sum pills. She no want me a? I love her so much. Dont now wat 2 do?”
There is no reason to suppose that Mr Ellbourn was not the author of this message. I have previously indicated my view that s 34KA of the Evidence Act 1929 (SA) permits the admission of the statements in this SMS message (and that sent at 10.36 pm) for testimonial purposes, that is, as evidence of the truth of the facts asserted.
The statement “Tok sum pills” is particularly significant. The Director accepted, correctly in my opinion, that these words should be understood as “Took some pills”. Both in their natural meaning and in their context, they amount to a statement by Mr Ellbourn that he had himself taken some pills. The word “pills” suggests that what he had taken was a form of medication. His use of the past participle “took” rather than expressions such as that he “was given” or “had been given” pills is suggestive of a voluntary ingestion on his part.
The three sentences in the SMS message following the sentence “Tok sum pills.” appear to provide an explanation for his having taken the pills. In the circumstances the statement “She no want me a?” must be a reference to the accused and appears to be a statement in abbreviated form that the accused did not want him any more. Given the evidence which I have accepted of Mr Ellbourn’s ongoing love for the accused, it is readily understandable that this must have been distressing for him. His continuing love is also reflected in the statement, “I love her so much”. It indicates an awareness on his part that his love has been rejected. That distress would have been increased if, as possibly occurred, Mr Ellbourn had that morning given the accused a Mothers Day gift of a necklace.
Mr Ellbourn concludes the SMS message with the statement that he does not know what to do.
Considered as a whole, the SMS message suggests that Mr Ellbourn was at the time in considerable distress, if not despair. In that circumstance, it seems that he took some pills in an attempt at suicide or self‑harm. Given his access to the accused’s Endep tablets, they may well have been the pills which he took.
It can also be inferred from the SMS message that Mr Ellbourn regarded his taking of the pills as sufficiently serious that he should let his good friend, Ms Folkers, know, and, in effect, seek her assistance.
One cannot be certain when Mr Ellbourn took the pills but it seems reasonable to infer that it was in the period 10.00 am-10.30 am.
An inference as to the extent, and effect, of the pills taken by Mr Ellbourn can be drawn from his failure to commence work as scheduled in the early afternoon of 8 May and by his omission to inform his employer that he would not be doing so. That failure and omission is all the more stark because of Mr Ellbourn’s reputation as a reliable and willing employee. I consider that the fact that Mr Ellbourn did not commence work that afternoon is consistent with him having taken a sufficient number of amitriptyline tablets to have incapacitated himself.
The incapacitating effect of the pills is also suggested by Ms Folkers’ evidence of the difficulty she experienced in making telephone contact with Mr Ellbourn after the SMS message at 10.27 am. When she did finally speak to Mr Ellbourn at 3.38 pm, he sounded distressed, and was unable to communicate intelligibly. This too would be consistent with Mr Ellbourn continuing to suffer the effects of the pills which he had self‑ingested between 10.00 and 10.30 am.
It is not easy to fit the communications described by Mr Merrick into the events of 8 May, but it is possible that the SMS message saying “help me” and “uur” to which he referred were received at 10.29 am, 10.44 am or 11.06 am on 8 May.
All this evidence is consistent with Mr Ellbourn having taken a significant number of the accused’s Endep tablets. Mr Ellbourn’s self‑ingestion may not have been an act of suicide: it may have been an act of self‑harm in the circumstances of his despair.
If Mr Ellbourn was at the beach at 10.27 am, he must, at some stage, have returned to 12 Gabriel Street. That is where he died. The means by which he obtained entry are not known, although one may doubt that he could have effected a forced entry if he was significantly affected by the pills he had taken.
I conclude, however, that any self‑ingestion of amitriptyline by Mr Ellbourn between 10.00 and 10.30 am on 8 May is unlikely, at least by itself, to have been the fatal overdose. That is a consequence of the evidence of Professor White which I accept, and of the evidence concerning the SMS message which Ms Folkers received from Mr Ellbourn’s phone at 10.36 pm that night.
I have previously alluded to the possibility that the 10.36 pm message (“I’m with my honey”) was not sent by Mr Ellbourn, but have concluded that it was.
The “I’m with my honey” SMS message, if sent by Mr Ellbourn, suggests a number of matters: that he was alive at the time it was sent; that he had the capacity to compose and send an SMS message; and that he was in company with his “honey”, who must have been the accused. The SMS message, having been sent to Ms Folkers, can also be regarded as a statement of implicit reassurance, ie, along the lines that, “Despite my earlier distress, I am now back with [the accused]” or perhaps as a statement of explanation, as in “the reason I have not answered your calls and responded to your SMS messages is that I have been, and am, with [the accused]”.
The evidence of Professor White suggests that an overdose of amitriptyline taken between 10.00-10.30 am on 8 May is unlikely to have been the cause of Mr Ellbourn’s death more than 12 hours later. Professor White said that an overdose sufficient to cause death is likely to cause increasing symptoms (drowsiness, confusion, agitation, distress and so on) with severe symptoms some six hours after the ingestion. By the six hour mark, the person taking the overdose is unlikely to be able to communicate, let alone to send an intelligible SMS message. Even though death may not occur for up to 24 hours, the person taking the overdose would be unwell in the preceding period. That condition would continue until death occurred.
I accept that evidence. This means that if, between 10.00-10.30 am, Mr Ellbourn had taken a sufficient dose of amitriptyline to be fatal, he would not have been able to send the SMS message to Ms Folkers at 10.36 pm. It is also unlikely that he would have been able to speak at all to Ms Folkers at 3.38 pm. The fact that, on each of my findings, he did so, suggests strongly that Mr Ellbourn must have ingested amitriptyline, or further amitriptyline, after 10.36 pm.
The circumstantial case against the accused applies as much to further ingestion of amitriptyline after 10.36 pm as it does to Mr Ellbourn’s death more generally. In relation to the matters already mentioned, the accused may well have been aware at about 10.30 pm that Mr Ellbourn had self‑harmed by overdosing earlier in the day. If she was aware of the 10.27 am SMS message to Ms Folkers, she may have seen the opportunity to “finish him off”, thinking that the evidence would indicate that his death was a result of suicide or self‑harm. However, if that was the accused’s thinking, one would have expected her to report Mr Ellbourn’s death as soon as it occurred, and that did not happen.
Another alternative is that, not knowing of the 10.27 am SMS message, the accused chose to give effect to her previously expressed intention to have him killed, taking advantage of Mr Ellbourn’s vulnerable condition. That is to say, she did herself what she had been seeking to persuade others to do on her behalf.
Yet another alternative is that, taking advantage of Mr Ellbourn’s vulnerable emotional and physical state, the accused taunted and goaded him to induce him to take further Endep, and was successful in doing so. Further again, the accused may simply have repeated to Mr Ellbourn that their relationship was at an end, provoking him to a state of distress and despair similar to that of the morning, and resulting in him engaging in further self‑harm by consuming the available Endep.
The very fact that these alternatives are available may suggest that the accused’s guilt is not proven beyond reasonable doubt. Further, the circumstance that Mr Ellbourn had, only some 14‑16 hours before his death, made a significant attempt at self‑harm, if not suicide, makes it difficult to be satisfied beyond reasonable doubt that the accused, whether personally or with the assistance of another, caused the fatal ingestion. That is because the evidence indicating that Mr Ellbourn took an overdose of pills of some sort while in a state of despair between 10.00 and 10.30 am on 8 May suggests a significant emotional instability at the time. Mr Ellbourn may well have reached a similar state of emotional instability as a result of something said by the accused after 10.36 pm, leading him to make a similar attempt at suicide or self‑harm.
In assessing the alternatives outlined above, the “I killed him” statement to Mr Evans and Ms Coad is important. As I have said, it is capable of being construed as an admission that the accused did herself perform the act resulting in Mr Ellbourn’s death. However, it need not necessarily be understood in that way.
The circumstance that the accused did not report Mr Ellbourn’s death and her extraordinary conduct in storing Mr Ellbourn’s body in her shed is also important in evaluating the possibilities. I agree that it is highly suggestive that the accused had been involved in killing Mr Ellbourn.
If the standard of proof to be applied in this trial was the balance of probabilities, the prosecution may well have made out its case. However, it is not necessary to express a final view about that. In the end result, I consider that the evidence that Mr Ellbourn had only some 14‑16 hours before his death made a significant attempt at suicide or self‑harm means that it is not possible to be satisfied, beyond reasonable doubt, that his death was not caused by similar conduct on his part. The evidence of the accused’s post‑event conduct to which I have just referred, even when considered with all the other elements of the prosecution circumstantial case, is not sufficient to overcome the doubt arising from this circumstance. For this reason I return a verdict of not guilty to the charge of murder.
My reasons for this conclusion also indicate that the accused cannot be found guilty of the alternative offence of manslaughter.

Liver	Stomach Contents	Muscle
amitriptyline	73mg/kg	1.5mg	2mg/kg
nortriptyline	32mg/kg	-	0.6mg/kg
diazepam	0.3mg/kg	0.02mg	0.05mg/kg
nordiazepam	0.5mg/kg	-	0.05mg/kg