R v McLean

[2014] NSWDC 248

District Court

New South Wales

Medium Neutral Citation:	R v McLean [2014] NSWDC 248
Hearing dates:	9 December 2014 - 17 December 2014
Decision date:	19 December 2014
Before:	Berman SC DCJ
Decision:	The accused is found guilty on Count one
Catchwords:	CRIMINAL LAW - Judgment - Judge alone trial - Circumstantial and direct evidence of guilt - meaning of "really serious injury"
Cases Cited:	R v Haoui [2008] NSWCCA 209
Category:	Principal judgment
Parties:	The Crown Angela Joy McLean
Representation:	Ms A Cook - The accused The Director of Public Prosecutions The Legal Aid Commission - The accused
File Number(s):	2012/88130

Judgment

Introduction

1. On 19 March 2012 Mr Laurie Waters left his home at about 11.00 am. He left behind a friend of his, Mr Brian Nimmo, who was going to spend some time in Mr Waters' unit while the carpets in his own unit were cleaned. On his way out Mr Waters passed Ms Angela McLean, who is the accused in these proceedings. She was going into his unit, where Mr Nimmo was. Mr Waters visited the doctor and did some shopping before returning to his home around 3.00pm. When he got there he saw that Ms McLean had gone and that Mr Nimmo was lying in two large pools of blood. He contacted police who came quickly and who then called an ambulance. Mr Nimmo was taken to hospital where his injuries were treated.

1. From a very early time Mr Nimmo nominated Ms McLean as being the person responsible for his injuries. That is what he told Mr Waters. That is what he told the first police officers to arrive on the scene. He continues to say that Ms McLean was responsible, giving evidence to that effect before me.

1. Ms McLean has been charged with two offences in the alternative: recklessly causing grievous bodily harm to Brian Nimmo and assaulting Brian Nimmo, thereby occasioning to him actual bodily harm.

1. She has pleaded not guilty to both charges. It is I who will determine whether she is guilty or not, an election for trial by judge alone having been made by Ms McLean and consented to by the prosecution.

General Matters of Law

1. The primary issue in this trial concerns whether I am satisfied beyond reasonable doubt that Mr Nimmo's evidence is reliable when he says that Ms McLean caused his injuries. An issue of relevance to the first count alone concerns whether I am satisfied beyond reasonable doubt that Mr Nimmo's injuries amount to grievous bodily harm.

1. Before I discuss the evidence called in the trial, and the conclusions which I draw from it, I will set out some preliminary matters. They are the sorts of things that I would tell a jury were this a trial where a jury decided the guilt or otherwise of the accused.

1. I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in Court and the exhibits which have been tendered. I have made no enquiries of any kind about anything that came up in this trial.

1. I have decided this case coldly and unemotionally. Were there a jury I would instruct them to ignore any feelings of sympathy or any other emotion that they might feel in deciding whether or not the accused is guilty of the two charges she faces. Judges are not immune tfrom feelings of sympathy. I have recognised those feelings, recognised their effect upon me and then put those feelings to one side. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy.

1. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that she is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that she is guilty.

1. Although there was some dispute as to whether this was a Crown case which relied largely or exclusively on the evidence of a single witness, I am prepared to acknowledge the importance of me examining the evidence of Mr Nimmo with great care, and to be very cautious before I convict the accused, because of the high standard of proof placed upon the Crown. Mr Nimmo is the only person who is capable of giving direct evidence as to what led to him being injured.

1. It is a significant component of the case for Ms McLean that she could not have caused the injuries because they occurred at a time after she left Mr Waters' home. Further, she says that it is possible that the injuries to Mr Nimmo were caused by a fall. She has called evidence on these issues from a forensic pathologist. I emphasise a number of matters which arise from this circumstance.

1. Firstly, by calling evidence the accused did not assume a burden of proof. She does not have to prove that she is not guilty. She does not have to prove that she is innocent. The burden of proof is firmly on the Crown.

1. Secondly, the Crown must do more than simply persuade me that the evidence called by the accused should not be accepted. Rejection of that evidence is not the same as acceptance of the Crown case. This is a particularly important matter in this case, as hearing and analysing the medical evidence has occupied a great proportion of trial time. There may be a subconscious tendency to leap from a conclusion that the injuries could have occurred when Ms McLean was alone in the unit with Mr Nimmo, to a conclusion that that is when they did occur. I recognise and acknowledge that this is not the proper way of addressing the issues in this trial. I specifically state that I have not done that which I recognise is improper.

1. What the Crown must prove, and prove beyond reasonable doubt, are the ingredients or essentials facts contained in the charges arising from the indictment. The Crown does not need to prove that every word spoken by everyone of its witnesses is true. Nor, to give an obvious example, does the Crown need to prove the precise manner in which Mr Nimmo was injured. The Crown does not have to prove that the accused struck Mr Nimmo with any specific object, be it a walking stick, or ashtray, or something else.

1. The accused did not give evidence. I have not used that in any way against her. The accused was entitled to say nothing in Court and make the Crown prove her guilt if it could. The fact that the accused did not give evidence does not effect the fundamental proposition which I must apply - that is that the Crown must prove her guilt beyond reasonable doubt. So the silence of the accused in Court is not evidence against her. Her election not to give evidence was not an admission made by her. Her decision not to give evidence must not be used by me to fill gaps in the Crown case or make up any deficiencies or defects in the Crown's case that might exist.

A Brief Summary of some of the Evidence

Brian Nimmo

1. Mr Nimmo said that at the time he was giving evidence he was 70 years old. He was actually 67 and seemed pleasantly surprised when this was pointed out to him. He could not remember being admitted to hospital on some earlier occasions, even for injuries which must have been quite painful, such as a fractured sternum. And he denied drinking more than a sip of alcohol on 19 March 2012 despite a lot of other evidence to the contrary.

1. On the other hand there were matters about which Mr Nimmo had a very good recollection. He recounted what a specialist had told him about benign positional vertigo, that being a condition from which he suffered, and his recounting was described by one of the doctors called by the Crown as a perfect description of the pathology behind that condition. His manner of giving evidence was impressive. He had little trouble understanding questions put to him and his answers were responsive.

1. He impressed as a man who gave his evidence openly and who had nothing to hide. He did not shirk from answering some very uncomfortable questions concerning bowel and urinary incontinence. He displayed no antipathy to Ms McLean. He made concessions where appropriate. To me, he was a witness doing his honest best to tell the truth as he saw it. Of course I immediately recognise that honesty is not the same as reliability.

1. Mr Nimmo gave evidence as follows. He went to the unit of his friend Laurie Waters because the carpet in his own unit was being cleaned. Mr Waters told him that he had to go out for a medical appointment but that he was welcome to stay there. Shortly after Mr Waters left, the accused walked in. He had known her for some years.

1. Mr Nimmo tried to get her to leave but she poured herself a drink. Eventually she grabbed her bag and left the lounge room where the two of them had been sitting. Mr Nimmo assumed that she had just gone to the toilet, but, after she had been gone for some time, he got up to have a look where she was. He found her curled up on Mr Waters' bed. He nudged her on the shoulder and said that she couldn't sleep there at which she got off the bed and began punching him and kicking him. He put up his hands to block those punches. His glasses fell on to the floor and, afraid that they would be trodden on, he bent down to pick them up. As he was putting his glasses back on he felt a blow to his forehead and that was the last thing he remembered until Mr Waters came home and roused him from unconsciousness.

1. Sometime after his release from hospital he noticed that there was a kink in one of his walking sticks. Mr Waters suggested that that may have been what the accused hit him with. Eventually someone mentioned the kink in the walking stick to the officer in charge and a walking stick with an obvious bend in it which belonged to Mr Nimmo was tendered in the trial.

1. Mr Nimmo said that because he was hung over from a lengthy drinking session the day before he only had a sip of alcohol whilst in Mr Waters' unit. He did say that when he was drinking he would often drink three to four litres of wine.

1. He was cross-examined about his medical history. Ms Cook, who appears for Ms McLean had the benefit of a summary of that history, at least insofar as it concerned treatment at St Vincent's Hospital. Mr Nimmo was able to recall some aspects of that history but not others. In particular he gave evidence that he had broken his leg, shattered his cheek bone and fractured his jaw in separate incidents. He was intoxicated when those things happened. He did not agree that he had a history of falling over but did agree that he suffered from positional vertigo which puts him off balance on occasions.

Laurie Waters

1. Mr Waters also gave evidence. He confirmed the circumstances in which Mr Nimmo was in his apartment and in which the accused arrived there. He could recall Mr Nimmo drinking a glass of wine before he left to go to the doctor. When he got back he saw Mr Nimmo lying on the floor of his bedroom in a semi-conscious state. There were two "massive" puddles of blood, one at his head and shoulders and one at his legs and feet. He asked Mr Nimmo "what happened?" and Mr Nimmo told him "Andrea bashed me" before falling into unconsciousness.

1. He was shown a photograph of his bedroom taken by police after Mr Nimmo had been taken to hospital. He explained that, being an old paratrooper, he had been trained to make his bed as soon as he got up in the morning. He would straighten the doona cover and put the pillows one by one on top of each other making sure they were level. The photograph of the bedroom shown to him revealed a wrinkled doona cover. Mr Waters said "I wouldn't leave my bed like that, no way". He was not cross examined on this assertion.

Other evidence

1. A lot of other evidence, which would usually have required the calling of a number of witnesses, was tendered through the officer in charge. This was done with the consent of Ms Cook of course.

1. A piece of evidence which became important in a number of respects was a video recording made by the first police officer to arrive at the unit in response to Mr Waters' telephone call. Commendably, he used his initiative, and his personal iPhone to make a video recording of a brief conversation he had with Mr Nimmo.

1. Other evidence tendered through the officer in charge demonstrated clearly that Mr Waters was absent from the unit from about 11.00 am on the 19th of March 2012 until about 3.00 pm that afternoon.

1. Mr Waters' phone records show that whilst she was in the unit, almost an hour after she arrived, Ms McLean made two telephone calls, one at 11.52 and one at 11.53 am. The evidence demonstrated that she left the unit shortly before 1.17 pm. She was shown to have made a purchase at a butcher's shop at 2.14 pm and withdrawn some money from an ATM at 3.01 pm.

1. In her interview with police the accused described her movements after leaving Mr Waters' unit in a way which was consistent with the objectively verifiable evidence. In particular her claim that after going to the butcher, and on her way back to her own home, she pressed the buzzer of Mr Waters' unit but did not receive a response was confirmed by CCTV footage which revealed this to have taken place at about 2.48 pm.

1. It is a significant component of the case for Ms McLean that she could not have caused the injuries to Mr Nimmo because, based largely on the evidence of a forensic pathologist called by her, they occurred at a time after she left Mr Waters' home to go shopping. She was photographed at a bus stop at 1.17 pm. That bus stop was about 100 metres from Mr Waters' home and so it is an essential part of the Crown case that the injuries occasioned to Mr Nimmo occurred, at the latest, shortly before 1.17 pm. Ms McLean suggests that the Crown has not excluded the reasonable possibility that the injuries were caused after she left the unit.

The Medical Evidence

1. Dr Dan is a neurosurgeon. He was called by the Crown, and gave evidence, mainly in response to a number of matters raised in the evidence of an expert called on behalf of the accused, Professor Duflou. Dr Dan's evidence dealt with the mechanism of Mr Nimmo's injuries and the timing of them. As far as that latter aspect is concerned he said "I do not believe it is possible to specify how long he had been unconscious when he was discovered about 3pm".

1. Professor Duflou is a forensic pathologist. He provided a report, which was tendered on behalf of Ms McLean, and gave oral evidence. He gave his opinion about a number of relevant issues.

1. One immediate observation to be made about Professor Duflou's evidence is this. He at no stage has suggested that the case mounted against the accused by the Crown was based on a scenario which was impossible. Certain aspects of that case were described by him as "most unlikely" and of course his opinion about such matters, and in particular the level of unlikelihood expressed by Professor Duflou, affects my assessment as to whether the Crown has proved its case beyond reasonable doubt.

1. A significant challenge to the Crown case from Professor Duflou's evidence related to the timing of the injury. It was his opinion that "it is most unlikely" that he sustained his injuries more than two hours prior to being found. As far at the mechanism of injury is concerned Professor Duflou was of the opinion that the type of fracture which Mr Nimmo suffered to his neck could come from low energy falls (such as when a person fell from a standing position) and he couldn't recall a case of that sort of fracture occurring as a result of a blow to the top of the head.

The timing of the injuries

1. The first opinion expressed in Professor Duflou's written report concerned when Mr Nimmo suffered his injuries. As I have just mentioned this was a significant component of the defence case because an acceptance of Professor Duflou's opinion made it most unlikely that Mr Nimmo suffered his injuries whilst Ms McLean was with him in Mr Waters' unit. And as I have already noted, Dr Dan disagreed with Professor Duflou, saying that he did not believe it was possible to say how long Mr Nimmo had been unconscious.

1. In his written report Professor Duflou regarded three circumstances as particularly important in forming his opinion. They were:

• The two pools of blood indicated that Mr Nimmo's scalp wound was still bleeding when he was moved by ambulance officers.

• The lack of damage to muscle from lying in a position for a prolonged period of time and

• Any period of unconsciousness due to the head injury would have been of short duration.

1. I will return to these matters when I discuss his oral evidence.

The Mechanism of Injury

1. Professor Duflou was also asked about the mechanism of injuries. In contrast to the opinion of Dr Dan, referred to below, in his written report Professor Duflou was of the opinion that a Jefferson fracture "is typically sustained in motor vehicle collisions and falls". He said that they are not commonly seen in assaults.

1. The injuries to the scalp, said Professor Duflou, could have been caused by an assault or a fall. He said that a fracture of the knee cap is typical of a heavy fall onto the knee and described the injuries to Mr Nimmo's left hand as being known as "Boxer's fractures" and they are "often indicative of a force being applied in the form of a punch or similar by the person who has the fracture". The injuries to Mr Nimmo's right hand could, according to Professor Duflou "also be caused by such a mechanism".

1. Thus Professor Duflou concluded in his written report:

"it is my view that the spinal injury and knee injury were probably the result of a fall, the injuries to scalp could be the result of either a fall or a blow to the head, and the injury to the hand suggests a forceful punching or similar type motion by Mr Nimmo".

The oral evidence of Professor Duflou

1. Professor Duflou's oral evidence differed from his written report in a number of respects, especially as regards the timing of the injury.

The absence of "long lie" pathology

1. In Professor Duflou's report of 24 March 2014 he spent some time addressing the question of when Mr Nimmo was likely to have sustained his injuries. As I mentioned above he referred to three separate matters, namely the circumstance that the scalp wound was still bleeding when he was moved by ambulance officers, secondly the lack of any evidence of a "long lie" at the scene and thirdly that any period of unconsciousness due to the head injury would have been of short duration.

1. Professor Duflou expressed his opinion about timing this way

"in my opinion it is most unlikely that Mr Nimmo sustained his injuries more than two hours prior to being found given the lack of pathology associated with a "long lie" and the lack of significant acute brain damage".

1. In forming this opinion Professor Duflou assumed that Mr Nimmo had been moved by ambulance officers as part of their treatment of him. It is beyond question that that did not happen. Professor Duflou had assumed that the two pools of blood showed that Mr Nimmo had been moved by the ambulance officers but the unchallenged evidence of Mr Waters was that when he first came across Mr Nimmo there were two large pools of blood . This of course occurred well before ambulance officers arrived.

1. In his oral evidence, Professor Duflou accepted that movement "resets the clock" as far as the pathology of long lie is concerned and thus one of the strong pillars of his opinion regarding the time of the injuries had to be removed. Nevertheless Professor Duflou remained of the opinion that it was most unlikely that Mr Nimmo sustained his injuries more than two hours before Mr Waters found him.

1. In maintaining his opinion as to the timing of the injuries despite the falsity of one of his assumptions being demonstrated, Professor Duflou referred to some new factors which, he said, justified the opinion he expressed in his report.

Hypothermia

1. So, not mentioned in the written report but referred to in oral evidence is this circumstance which Professor Duflou said indicated something about the timing of the injuries: there was no evidence that Mr Nimmo's body temperature was lower than normal. Professor Duflou said that those who suffer injuries and are not treated for some time will have a lower body temperature than normal. He was unable to describe the mechanism for this happening but said that it was something that had been observed.

1. When Professor Duflou was asked why this factor was not mentioned in his original report he said that it was something that had not occurred to him at the time he prepared it. Thus in those circumstances the Crown was not in a position to ask Dr Dan whether he agreed with the absence of a low body temperature being indicative of when Mr Nimmo sustained his injury, nor, more fundamentally to ask the treating doctor, Dr Sellors, whether Mr Nimmo's body temperature was lower than normal when he arrived at hospital.

1. Two separate extracts from St Vincent's hospital progress notes were tendered, Exhibit 15 and Exhibit D. As far as I can tell it does not even appear that Mr Nimmo's temperature was taken. There is no record of his body temperature despite there being a reference to his respirations, blood pressure, pulse and Glasgow Coma Score. In these circumstances the foundation for Professor Duflou's assumption that Mr Nimmo was not suffering from a lower than normal body temperature upon arrival at the hospital is unclear.

1. I would certainly have been in a position to put more weight on Professor Duflou's opinion regarding the timing of the injuries had one of the important assumptions on which he initially formed that view not been shown to be inaccurate and had his opinion concerning the relevance of hypothermia not been a belated one with an unclear basis for the assumption on which it was based.

Change in level of confusion

1. There is a further matter raised in Professor Duflou's oral evidence which was not the subject of specific mention in his report. This concerned what Professor Duflou said was a comparison between the signs of confusion displayed by Mr Nimmo on the video taken by the first police officer to arrive and his presentation at hospital. Coupled with this was Professor Duflou's opinion as to the cause of Mr Nimmo's confusion on that video.

1. Professor Duflou said that it looked to him when viewing the video that the cause of Mr Nimmo's confusion at the scene was more likely to be a head injury than intoxication. He based his opinion on his experience, not necessarily as a forensic pathologist who probably doesn't often chat to the people he is examining, but as a medical practioner who had worked in emergency wards in the past and as a person who had himself suffered a concussion.

1. He said that the change in presentation between Mr Nimmo on the police officer's iPhone video and at hospital indicated that whatever was causing Mr Nimmo's confusion at the scene resolved itself fairly quickly, this being more suggestive of head injury which would resolve much quicker than a person would metabolise alcohol and thus sober up.

1. Unfortunately, once again, such opinions were not mentioned, at least specifically, in his initial report and once again I simply do not know what Dr Dan would have said about them. Nor do I know what Dr Sellors, the treating doctor would have said about the level of Mr Nimmo's confusion at the hospital beyond noting that in one of her statements she refers to it as slight.

1. These matters of course affect the weight that I must give to Professor Duflou's opinions as to the timing of the injury. I would have given his opinions more weight had these matters, now apparently quite important, been mentioned in his initial report, and based on assumptions which were shown to be accurate.

1. Further, I am satisfied that any confusion displayed by Mr Nimmo on the police officer's iPhone video, for reasons I explain immediately below, could well be described as "slight". If this is the case then another basis for Professor Duflou's opinion about the timing of the injuries falls away.

1. Of course the exchange between the police officer and Mr Nimmo is very brief, and I have to ignore his nomination of the accused as being the person responsible for his injuries in assessing what he has got right and wrong, but even so:

• Mr Nimmo gives his name as Brian and spells his surname,
• He knows that he is in Mr Waters' unit, indeed in his bedroom,
• He tells the officer, accurately from what else we know, "Andrea came around here after Laurie left."
• He is able to give Ms McLean's name,
• He tells the police officer that at one stage Ms McLean was "sleeping on Laurie's bed", a matter likely to be accurate given the state of the bed (as to which, see below).

1. Certainly he is clearly not functioning normally. He speaks slowly and takes some time to answer, but everything he says which is independently verifiable turns out to be accurate.

1. Then, given that Professor Duflou relies on an improvement in his mental functioning it is instructive to note that there are matters which suggest problems with his mental functioning at hospital - in particular that he refers to a walking stick as a possible weapon but apparently does not remember this on discharge, and he remembers his pants being pulled down despite his clothes having already been removed from him by ambulance officers.

1. Thus a consideration of the appearance of Mr Nimmo on the police officer's iPhone video and a consideration of what evidence there is about Mr Nimmo's mental functioning whilst at hospital leads me to the conclusion that it is entirely possible, if not likely, that there has been no significant change in the level of confusion displayed by Mr Nimmo on the iPhone video and that displayed at the hospital.

1. I trust I will be forgiven for repeating the significance of that finding. Professor Duflou relied on an asserted improvement in Mr Nimmo's mental functioning as demonstrating that his confusion was more likely to have been caused by a head injury than any intoxication, which in turn demonstrates that the head injury occurred only shortly before the iPhone video was taken. But I find that there is little or no evidence of any improvement in Mr Nimmo's mental functioning between the iPhone video being taken and Mr Nimmo being assessed at hospital.

1. Unlike Professor Duflou I have never been a doctor treating people in an emergency ward. I fully appreciate that his expertise in such matters is greater than mine, but I do take into account, as I must, that my observations do not match his as regards the level of confusion displayed by Mr Nimmo on the iPhone video. The weight I give to Professor Duflou's opinions, especially as regards the timing of the injuries, is thus affected.

1. I suppose I should mention the obvious - the fact that everything Mr Nimmo says on the iPhone video which is independently verifiable turns out to be accurate, also supports the accuracy of the most crucial thing he says, namely that the accused "bashed into" him.

Length of unconsciousness due to head injury

1. As already mentioned, another circumstance relied on by Professor Duflou in support of his opinion as to the timing of the injuries was that any period of unconsciousness due to the head injury would have been of short duration. The expert called by the Crown, Dr Dan, agreed with Professor Duflou's assessment. Both doctors said that the lack of any injury to Mr Nimmo's brain demonstrated that the loss of consciousness from the blow to his head would not account for him lying on the ground for a lengthy period of time. If that was the only thing that caused Mr Nimmo to fall into unconsciousness then Dr Dan thought that Mr Nimmo would have regained consciousness within three minutes.

1. However Professor Duflou's opinion, at least in his written report, Exhibit A, ignores, or at least does not give sufficient weight to, the effects of alcohol. When Mr Nimmo's blood was tested at hospital he was found to have a blood alcohol level of 0.24%. Whether this was because he had drunk at Mr Waters' unit or not (I am inclined to think that he did) the fact remains that at the time he received his injury to his head Mr Nimmo was significantly intoxicated and would have remained that way for the entirety of the time he was lying on the floor. As Dr Dan said "the alcohol is likely to be the reason for the prolonged loss of consciousness, rather than the head injury".

1. Dr Dan didn't mean to suggest that the concussive episode played no part in Mr Nimmo remaining unconscious for more than three minutes or so. As he explained "the concussive episode involves loss of consciousness but it's very typical that there will be a period of drowsiness, confusion, lack of adequate cerebral functioning" and it was that which Dr Dan thought was "the mechanism for the period of loss of consciousness".

1. As I interpret what Dr Dan is there saying, whilst the head injury may not have alone caused a loss of consciousness to extend beyond three minutes, it cannot be said that it played no part in any further effects on Mr Nimmo's mental function. In his oral evidence Professor Duflou agreed with what Dr Dan said.

Consideration

1. Two primary issues arise for determination. Firstly has the Crown proved beyond reasonable doubt that the injuries from which Mr Nimmo suffered were occasioned by means of an assault and secondly, if the Crown proves the first matter, was it the accused who assaulted Mr Nimmo?

1. In breaking up the issues this way I recognise that the defence case is that it doesn't matter whether he was assaulted or suffered the injuries accidentally if whatever happened to him occurred after Ms McLean left the unit.

1. In this context, before looking at the two questions posed above, I should discuss one aspect of Ms Cook's submissions upon which she placed considerable reliance. I will then discuss some other matters which were the subject of discrete submissions by the parties, and return to answer the questions posed above.

The suggestion that Mr Nimmo has changed his clothes during the day

1. It is a significant component of the defence case that Mr Nimmo has changed his clothes between when he arrived at Mr Waters' unit and when Mr Waters found him lying on the floor.

1. Mr Waters recalled that when Mr Nimmo arrived in the morning, he was wearing shorts, a T shirt and a cap, but did not have his walking stick with him. The police officer's iPhone video shows that Mr Nimmo was wearing something that looks like a T shirt with a white collared shirt on top and some other sort of garment, perhaps a jacket, over the top of that. When Mr Nimmo was shown photographs of the clothing lying on the bedroom floor, it having been cut off him by the ambulance officers, he could not remember owning, and did not recognise, at least some of what was depicted.

1. Thus, says Ms Cook, it is the case that sometime during the day Mr Nimmo has changed his clothing. She says that there is therefore a significant component of the day unaccounted for. Mr Nimmo has apparently gone somewhere and changed into clothes which were not his.

1. Her submission is that the fact that Mr Nimmo has changed his clothing leaves a large unexplained gap in the course of which anything might have happened which led to Mr Nimmo being found unconscious on Mr Waters' lounge room floor.

1. There are a number of things to say about this submission:

• Firstly Mr Nimmo's failure to recognise the items depicted on the bedroom floor has to be looked at in the context of what those items now look like. They are not identifiable, or at least easily identifiable, as clothes.
• Secondly Mr Nimmo did say that he owned clothes which fitted the description of some of the garments he was shown to be wearing in the iPhone video.
• Thirdly Mr Nimmo would apparently have had no reason to change his clothes and denies doing so.
• Fourthly, it would not be at all surprising for Mr Waters to be wrong when he said that his friend was wearing shorts and a T shirt when he arrived that morning. He only saw his friend for a relatively short time before he left to go to the doctors. What his friend was actually wearing would have been of very little importance to him and thus unlikely to have been imprinted on his memory.

1. That is of course not to say that I have disregarded completely Ms Cook's submission on this issue and the evidence behind it. It is however to say that I do not give it the weight which Ms Cook says I should give it.

The Crown says the accused has lied

1. Shortly after police were notified by Mr Waters, Constable Luke Bishop went to the accused's premises. As he arrived he saw her opening the front door of her residence to go inside. She was carrying some shopping. Constable Bishop asked the accused, "Andrea have you been to Laurie's place to day?" The accused replied "I just went there to see if they wanted some meat. I rang the bell but no one answered so I left and come home". Whilst it may well be true that the accused did go to Mr Waters' unit and ring the bell after she had been to the butcher's, the Crown says that it is significant that her answer leaves out any reference to her having been inside the premises for a number of hours earlier that day.

1. The Crown also relies on the fact that Ms McLean told police that she was drinking a glass of wine in Mr Waters' unit for "maybe 15 minutes". The Crown said that this was "a version drastically reducing the time she says she was present in unit 2A".

1. The Crown submission is that what Ms McLean said in the ERISP and what she said to Constable Bishop amounted to lies which would affect my assessment of the credibility of Ms McLean's denials that she was responsible for the injuries to Mr Nimmo.

1. On the other hand Ms Cook says these were not lies at all. She points out that immediately before Constable Bishop asked "Andrea have you been to Laurie's place today?" he had had a short conversation with her "in ... relation to where she had been that afternoon" (emphasis added). Thus, says Ms Cook, Ms McLean may have understood the next question asked of her by Constable Bishop as referring to the afternoon.

1. Further, in relation to the contended lie in the ERISP, Ms Cook points out that the question related to how long it took the accused to drink the wine, not how long she was in the unit for, and that she told police elsewhere in the ERISP about her having made two telephone calls from Mr Waters' home phone. Thus, says Ms Cook, the inference that the Crown wishes me to draw, that Ms McLean's reference to "15 minutes" was an attempt to minimise the time she had been in the unit, is not a conclusion that I can safely draw.

1. When I consider the submissions of Ms Cook, I do not consider that the Crown has demonstrated that Ms McLean has lied in either respect relied on by the Crown.

Motive

1. Although it is perhaps a small point there is evidence of disharmony between the accused and Mr Nimmo. When he ran into Ms McLean as he was leaving his unit Mr Waters said to her "you can go in, but as long as there's no trouble". When she arrived at the unit itself Mr Nimmo said to her "you're not supposed to be here" and he told her "look just go home". Ms McLean herself had a large number of complaints about Mr Nimmo and his behaviour which she made to police during her electronically recorded interview. She presented as somewhat voluble and excitable and explained that she "saw red" over things Mr Nimmo had said and the lack of gratitude he had shown her for help she had provided to him.

1. This, the Crown says, establishes a motive for Ms McLean to have assaulted Mr Nimmo when he told her to get off Mr Waters' bed. It is certainly not a major point in the Crown case, or at least not a point to which I give great weight, but I do note that this is not a case where the Crown has no explanation as to why Ms McLean would assault Mr Nimmo.

The suggestion that Mr Nimmo was going to lie on the bed

1. In her interview with police the accused says that "Brian said he was going to lie down but I don't know if that happened because I left". Given Mr Waters' meticulous nature, and given Mr Nimmo's understanding of that aspect of Mr Waters' character, I find it unlikely that Mr Nimmo would have used Mr Waters' bed to lie down, but in any case her suggestion that he would have moved from the sofa on which he was sitting is inconsistent with other things she said about Mr Nimmo, things such as "he is so drunk he couldn't get up", "he was trashed when I got there", and that he was "almost incoherent".

1. Of course it is likely that Nr Nimmo was in fact not as drunk as Ms McLean told police that he was, at least when he arrived because of Mr Waters' evidence that Mr Nimmo was in a good state on arrival being "happy and friendly". I do however remain of the opinion that Mr Waters was unlikely to have told Ms McLean that he was planning to lie down on Mr Water's bed.

1. I do not take this into account as a lie told by the accused, but I do take it onto account in determining why the bed showed signs of having been lied upon.

Observations of the accused inconsistent with guilt

1. There is no suggestion that after leaving the apartment Ms McLean changed her clothes or washed herself. No blood was seen on her or her clothing. There were no marks seen by police officers to indicate that she had been involved in any act of violence.

1. Further, it is on one view inconsistent with Ms McLean's guilt that she would return to the block of units where Mr Waters lived and, by pressing the security buzzer at the front gate, attempt to gain entry.

1. Whilst these matters are clearly in Ms McLean's favour, they have to be looked at in the overall context of all the evidence in this trial. Although I will obviously take them into account, they are not of such significance that they of themselves would prevent me from making a finding, based on all the evidence in the trial, that she is guilty beyond reasonable doubt.

Has the Crown excluded the reasonable possibility that the injuries were occasioned accidentally.

1. I return now to the questions foreshadowed earlier, the first of which concerned whether the Crown has excluded the reasonable possibility that the injuries were occasioned accidentally. Another way of looking at this first question is to consider whether it is reasonably possible that the injuries occasioned to Mr Nimmo happened as a result of an accident such as Mr Nimmo falling over whilst in Mr Waters' unit.

1. Mr Nimmo is a person who has a number of conditions which increase the risk of him falling. He required a stick for mobility, suffered from positional vertigo and cardiac arrhythmia, and was significantly intoxicated at the time he was in Mr Waters' unit. Thus it would not be surprising to learn that he fell. The presence of osteoporosis would increase the risk of bone fractures from a fall.

1. On the other hand there is a great deal of medical evidence to suggest that a simple fall would not explain all, or perhaps even most, of the injuries observed when he was treated at St Vincent's Hospital. Indeed Dr Dan said that he had never seen a pattern of injuries similar to that suffered by Mr Nimmo as a result of a low level fall and Professor Duflou said that he would not accept that the injuries were the result of a simple low level fall.

1. I will start with the most serious injury, at least in terms of its possible consequences, from which Mr Nimmo suffered. That was an unstable fracture of his C1 vertebrae. It is described as a "Jefferson fracture" after Sir Geoffrey Jefferson, an English neurosurgeon. Importantly, this fracture tends to occur when force is applied from above. The evidence of Dr Noel Dan, a neurosurgeon for about 45 years, was that "the Jefferson fracture tends to occur most commonly when people have a force applied to the top of the head". Dr Dan gave as classic examples of this force, people diving into shallow pools or having falls from a substantial height.

1. He said that a blow to the top of the head from a walking stick or heavy glass ashtray, if forceful enough, could cause a Jefferson fracture, particularly in a person with osteoporosis such as Mr Nimmo. Such a mechanism of injury was more likely if Mr Nimmo was actually bending down at the time of the blow because the object being swung would have a greater velocity at the time of impact with Mr Nimmo's head.

1. Dr Dan was of the opinion that Jefferson fractures were typically sustained in falls but not motor vehicle collisions and are not commonly seen in assaults. This is important of course because the Crown case is that Mr Nimmo's Jefferson fracture was sustained in an assault and not an accidental fall. In his evidence Professor Duflou referred to a South Australian study of 30 people who had sustained Jefferson fractures, which revealed that 2/3 of such injuries were sustained in a motor vehicle or motor cycle accident while high-energy falls accounted for 4 of the 30 and low-energy falls such as a fall from a standing position a further 2.

1. The major difference between the two doctors on this aspect was their differing opinions as to the prevalence of motor vehicle accidents as a cause of a Jefferson fracture, a matter not of high significance in the present case.

1. Professor Dufluo could also not recall a case of a Jefferson fracture from a blow to the top of the head, although he candidly accepted, in a slightly different context, that Dr Dan's

"bread and butter would include Jefferson fractures. They do not for me. I've seen the occasional one and I don't profess specific expertise."

On the other hand Professor Duflou, probably quite accurately, claimed greater expertise that Dr Dan in terms of the mechanisms of injury.

1. In a situation where Professor Duflou has only seen the "occasional" Jefferson fracture, and where presumably most of his experience would have been with people who have died, I prefer Dr Dan's evidence that a blow top the top of the head could cause a Jefferson fracture, particularly in a person with osteoporosis such as Mr Nimmo, and particularly if the person was bending down at the time the blow was delivered.

1. Reference should also be made to the photographs of Mr Waters' unit. Whilst there are a number of hard objects in it, many of which would presumably be capable of causing a laceration to Mr Nimmo's head if he fell against them, there was no evidence of anything being out of place in Mr Water's unit, and no trail of blood (although I accept that the scalp wound would not necessarily be such that blood would drop onto the floor immediately). And in any case it is difficult to imagine a mechanism of injury whereby a person would fall in such a way that force was exerted to the top of that person's head leaving no objective signs on the object with which Mr Nimmo would have collided.

1. Although Jefferson fractures are not commonly seen in assaults, this may be because of heavy blows from above are not typical of assaults. Certainly neither expert said that they were never seen in assaults and, in a situation where it is force applied top the top of a person's head which usually causes such a fracture, an assault which involved a blow of that type could well, I am satisfied, lead to the Jefferson fracture suffered by Mr Nimmo.

1. In any case, it is important to look at the entirety of the injuries suffered by Mr Nimmo, not just those to his neck.

1. Mr Nimmo was found to suffer from other injuries apart from the Jefferson fracture. He had a laceration to his head with accompanying haematoma. This was said to be on the right side parietal scalp region of Mr Nimmo's head. In addition he had an undisplaced right patella fracture, left fourth and fifth metacarpal fractures, and right second and third metacarpal fractures. As I have already said, Dr Dan was of the opinion that he had never seen a pattern of injuries similar to that suffered by Mr Nimmo which occurred as a result of a low level fall, and Professor Duflou said that he would not accept that the injuries were the result of a simple low level fall.

1. The existence of the injuries to Mr Nimmo's hands and knee have to be considered. Whilst the medical evidence would suggest the distinct possibility that the injuries to Mr Nimmo's knee and hands occurred as he fell to the floor, both Dr Dan and Professor Duflou say that the injuries to Mr Nimmo's hands are consistent with him holding his hands up to protect his face whilst punches are being thrown at him - a version of events which Mr Nimmo said occurred after he told the accused to get off Mr Waters' bed.

1. And finally the evidence of Mr Nimmo can't be ignored. Thus far I have concentrated on the medical evidence in assessing whether the Crown has proved beyond reasonable doubt that the injuries which Mr Nimmo suffered were the result of an assault. But Mr Nimmo's evidence is relevant to this issue as well. For reasons I note later, I must use caution before I accept his evidence but even after I do that, it is notable that when Mr Waters asked Mr Nimmo what had happened he replied "Andrea bashed me". When the first police officer on the scene made a similar enquiry of Mr Nimmo he told the officer that the accused "bashed into me". Mr Nimmo gave sworn evidence that this is how he received his injuries.

1. Of course I take into account the accused's denial of having caused the injures made to police in her electronically recorded interview as well as her suggestion that Mr Nimmo "has got the shits and he's had a fall and he's blamed me".

1. Whilst it is easy to accept that Mr Nimmo is the sort of person who might be prone to falling, I am satisfied beyond reasonable doubt that the injuries he suffered on the 19th of March 2012 were not the result of a fall (or even falls) but were the result of an assault. Particularly important in making this finding are:

• the evidence of Dr Dan that the Jefferson fracture usually occurs as a result of a blow from above.
• Dr Dan's evidence that in 45 years of neurosurgery he had never seen the combination of injuries suffered by Mr Nimmo being caused by a low level fall.
• Professor DuFlou's evidence that a simple single low level fall would not account for all the injuries suffered by Mr Nimmo.
• The absence from the unit of any damage or disturbance or mark consistent with Mr Nimmo having sustained his scalp injuries by falling.
• The injuries which Mr Nimmo suffered being well explained by his evidence that he was assaulted.
• The very fact that Mr Nimmo gave evidence that the last thing he remembered before being roused by Mr Waters was him being assaulted, in particular receiving a blow to his head as he bent down to pick up his glasses, a mechanism of injury that Dr Dan said was entirely possible.

The timing of the injuries

1. Dr Dan did not believe it was possible to specify how long Mr Nimmo had been unconscious at the time he was discovered. This was because he did not believe that the head injury alone was the contributor to the period of loss of consciousness because of the interaction between the blow to the head and the significant level of intoxication.

1. Thus there is nothing in Dr Dan's evidence of relevance to the question as to whether Mr Nimmo could or could not have suffered his injury at a time when Ms McLean was with him in Mr Waters' unit.

1. I have discussed Professor Duflou's evidence, both written and oral, at length already and so I need only summarise why it is that I am satisfied that it was entirely possible that Mr Nimmo suffered his injuries whilst Ms McLean was still in the unit:

• At no stage has Professor Duflou ever suggested that it was impossible that Mr Nimmo was injured at a time period when Ms McLean was still in the unit.
• One of the significant pillars of Professor Duflou's opinion as originally expressed was shown to be inaccurate.
• One of the new circumstances relied on by Professor Duflou (a lack of evidence of hypothermia) was not something mentioned in his written report, and hospital notes do not record whether Mr Nimmo was hypothermic or not.
• Another new circumstance relied on by Professor Duflou (a suggestion of significant improvement in cerebral functioning over a short period of time) was also not mentioned in his written report, and I do not accept Professor Duflou's description of the level of confusion displayed by Mr Nimmo on the video taken of him by the first police officer on the scene.
• In his oral evidence Professor Duflou did not disagree with Dr Dan's opinion that the cause of Mr Nimmo's unconsciousness was related to both the concussive episode and intoxication.

1. I conclude that the medical evidence says very little about when Mr Nimmo was injured. It is entirely possible that he was injured before Ms McLean left Mr Water's unit.

A circumstantial case is made out

1. From my assessment of the medical evidence, I am satisfied beyond reasonable doubt that the injury was not caused accidentally, and that it could have easily occurred at a time when Ms McLean was in the unit. Given the security arrangements at Mr Water's unit, the lack of any signs of a struggle, and the absence of anything missing from the unit, the circumstantial case against Ms McLean is very strong.

1. The circumstantial evidence is such that even in the absence of Mr Nimmo I would have found the case against the accused proved beyond reasonable doubt. In my view, even ignoring what Mr Nimmo said about the matter, there is no reasonably possible version of events which does not involve the accused causing Mr Nimmo's injuries.

1. I repeat for emphasis, even in the absence of evidence from Mr Nimmo I would have concluded that there is no explanation for the circumstances revealed in the evidence which is consistent with Ms McLean not being responsible for Mr Nimmo's injuries.

1. However this conclusion is bolstered by direct evidence arising from what Mr Nimmo says about how he was injured and the evidence regarding the state of the bed. It is to those matters that I will now turn.

Mr Nimmo's mental functioning

1. I have already mentioned the need for me to examine the evidence of Mr Nimmo with great care because he is the only witness who has given direct evidence of what led to him being injured. But there are other aspects of this case which require me to use caution before I accept his evidence.

1. Quite clearly there are a number of circumstances regarding Mr Nimmo's evidence which I must examine with care. His evidence may be unreliable and I should exercise caution before I accept it. He was significantly intoxicated at the time he first told anyone that the accused was responsible for his injuries. He had suffered a head injury as well.

1. Memory is a fragile thing and there is a tendency for the human brain to create false memories in order to explain how things have come to be. The circumstance that Mr Nimmo, whilst intoxicated and having suffered a head injury, nominated the accused as the person responsible for his injuries may therefore be unreliable.

1. I have to consider the possibility that in truth Mr Nimmo had no recollection of how he came to be injured and merely nominated the accused as being responsible as a way of, as Professor Duflou put it, trying "to 'join the dots' in an attempt to reconstruct what happened".

1. Despite that, and having exercised caution, I still regard Mr Nimmo's nomination of the accused as being the person responsible as evidence which alone would establish the Crown case beyond reasonable doubt.

1. Although he clearly got some things wrong, most notably his claim that he did not drink more than a sip of wine that day, Mr Nimmo's evidence matches a number of independently verifiable circumstances: he said that the accused arrived shortly after Mr Waters left and that is what Mr Waters said too, he said that he was assaulted in the bedroom and that is where he was found; he said that his glasses fell on the floor and that is where they were found; he said he felt a blow to his forehead and a diagram from hospital shows a laceration extending to the front part of his scalp; he remembers two periods of unconsciousness and that is consistent with the two pools of blood; he remembers Mr Waters rousing him and that is what Mr Waters said too; and he says that what prompted the attack upon him was him telling Ms McLean to get off Mr Waters' bed and the bed showed signs of someone having been on it (I address this matter below),

1. Also noteworthy is that Mr Nimmo's evidence is entirely consistent with what he told Mr Waters, and then the police, when he was found lying on the bedroom floor. As I said earlier: the fact that everything he says on the iPhone video which can be independently verified turns out to be accurate, also supports the accuracy of the most crucial thing he says, namely that the accused "bashed into" him.

The state of the bed

1. As I have said before, Mr Waters was described as a person who was meticulous about the state of his home unit. He readily accepted that description. He was shown photographs of the state of his bed after he returned home from the doctor's and was able to say that the bed was not in the same state it was when he left in the morning to go to the doctor's.

1. Even without that evidence I would have concluded that the photographs of the bed showed that someone has been sitting or lying on it after it was made. That is important because of Mr Nimmo's evidence that he found the accused curled up on Mr Waters' bed, this in turn leading to the argument which ended up with Ms McLean throwing punches at him and ultimately hitting him on the head with something.

Conclusion regarding whether the accused struck Mr Nimmo

1. The Crown case has two strands - a circumstantial case which I have found to be made out, and direct evidence from Mr Nimmo that the person responsible for his injuries was the accused, which I am satisfied beyond reasonable doubt is reliable.

1. I therefore find beyond reasonable doubt that the accused caused all of Mr Nimmo's injuries by striking him, probably with an object, which in turn caused him to fall to the floor.

Did the injuries amount to grievous bodily harm

1. In order to prove count one the Crown has to prove, amongst other matters, that Mr Nimmo suffered grievous bodily harm. I have earlier described the injuries he suffered but I need to say a bit more about them in order to determine this issue.

1. Although Mr Nimmo was unconscious for a considerable period of time the evidence was that the period of unconsciousness due to being struck was likely to have only been a few minutes at most.

1. He suffered a significant loss of blood.

1. The fracture to Mr Nimmo's C1 vertebrae was unstable. Although there was a risk that his spinal cord could be damaged and if it was, being at such a high level, death or quadriplegia would likely result, I have ignored this risk for the purposes of the resolving the issue with which I am now dealing. This particular injury required that Mr Nimmo wear a cervical collar for six weeks.

1. The injuries to his hands were treated by the application of what were described as thermoplastic splints for four weeks. One of the photographs in exhibit nine, taken whilst Mr Nimmo was at a rehabilitation hospital shows the nature of those splints.

1. Mr Nimmo's knee injury was treated by him being placed in a "zimmer splint" for six weeks. Dr Sellors said that a zimmer splint is "a fabric splint that's rigid to prevent movement of the knee". That same photograph from exhibit nine shows Mr Nimmo wearing the zimmer splint.

1. The laceration to Mr Nimmo's scalp required suturing and in addition he received a tetanus booster, morphine, a dose of antibiotics and intravenous fluids.

1. Minds may differ as to whether any particular injury or injuries amount to really serious bodily injury (see R v Haoui [2008] NSWCCA 209 where two judges of the Court of Criminal Appeal held that a fracture of a cheek bone which required surgery and a short period of recuperation could amount to really serious injury but the third held that it could not).

1. It may be that no one injury that Mr Nimmo suffered would be capable of satisfying the description of "really serious injury" but in combination I am satisfied beyond reasonable doubt that they did. Mr Nimmo suffered a laceration of such significance that a considerable amount of blood was lost. He suffered a fracture of one of his vertebrae which required that he wear a cervical collar for six weeks, he suffered fractures to both of his hands which required that he wear splints on them for four weeks and he suffered an injury to his right knee that required he wear a splint for six weeks. In combination I am satisfied that those injuries are really serious and amount to grievous bodily harm.

The Elements of Count 1

1. Having made those findings let me turn to the elements of Count 1.

1. The Crown must satisfy me reasonable doubt of each of the following matters:

(1)   The accused struck Mr Nimmo.

(2)   This caused grievous bodily harm

(3)   The accused either:

• Intended to cause him actual bodily harm, or
• Realised the possibility that her actions would cause him actual bodily harm, but went ahead anyway.

1. What I have said so far demonstrates that I am satisfied beyond reasonable doubt that the accused struck Mr Nimmo and that this caused him injuries which satisfy the description of grievous bodily harm.

1. As far as the third element is concerned, the nature of the force required to injure Mr Nimmo, and his description of the attack upon him by the accused amply demonstrate in my view that, at the very least, when Ms McLean struck Mr Nimmo she realised the possibility that her actions would cause him actual bodily harm, but went ahead anyway.

Verdict

1. It follows that I am satisfied beyond reasonable doubt of the elements of Count 1 and I find the accused guilty on that count.

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Decision last updated: 19 December 2014