R v Powell - [2014] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v POWELL
Criminal Trial by Judge Alone
[2014] SASC 11
Judgment of The Honourable Justice Anderson
31 January 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - ACCIDENT
Criminal trial by Judge alone. Accused charged with murder and pleaded not guilty. Victim was the 2 year old child of the accused's partner. Prosecution case is circumstantial. Prosecution alleges that the accused beat the child to death while alone with the victim in the home of the accused and child's mother in the early hours of 14 January 2012. Defence case denied the accused committed the unlawful act. Question of intoxication and whether there was intention to cause death or grievous bodily harm.
Held: Accused guilty of murder. From the totality of the circumstantial evidence, there is no reasonable possibility that the accused did not commit the unlawful act on the victim. The accused intended to kill the victim or intended to cause him grievous bodily harm.
Criminal Law Consolidation Act 1935 (SA), referred to.

R v POWELL
[2014] SASC 11
Criminal
ANDERSON J.
Introduction

Brock Michael Powell is charged with murder. The particulars alleged are that on 14 January 2012 at Melrose Park he murdered Brendan-Junior Nathan Williams who was the son of Mr Powell’s partner. He will be referred to as BJ. He was two years old at the time.
The case presented by the prosecution against the accused is entirely circumstantial. I cannot find the accused guilty of murder unless I am satisfied that on the evidence there is no reasonable hypothesis consistent with innocence. If there is any reasonable explanation other than that the accused committed the murder of Brendan Junior then the accused must be acquitted of that charge.
I will set out later the basis of the circumstantial case as alleged by the prosecution. I remind myself at this stage, however, that when dealing with these matters there may be items of circumstantial evidence which carry significant weight by themselves but others, again by themselves, may be quite weak by comparison. I have to consider the weight of the circumstantial evidence based on its combined strength. That involves an assessment of all the facts which have been proved and which are probative of the inference contended for by the prosecution, namely, the guilt of the accused.
The crime of murder is committed when a person deliberately and unlawfully causes the death of another person while at the same time intending to cause death or grievous bodily harm. The matters which the prosecution must prove beyond reasonable doubt are:
1.That the act or acts of the accused caused the death of BJ.
2.That the act or acts of the accused which caused the death of BJ were deliberate, that is to say they were the result of the exercise of the accused’s will and were not the result of an accident.
3.The act or acts of the accused which caused the death were carried out with the intention of either killing BJ or causing him grievous bodily harm. By the term grievous bodily harm I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out.
4.Finally that the killing was unlawful.
An alternative to the charge of murder is manslaughter by an unlawful and dangerous act. Elements 1, 2 and 4 are the same as above. For manslaughter I have to be satisfied that a reasonable person in the position of the accused would have realised that he was exposing the deceased to an appreciable risk of serious injury. I am not concerned with what the accused thought but what a reasonable person in the position of the accused would have thought.
In this matter it is apparent that the main questions to be resolved are whether it is proved beyond reasonable doubt that the accused perpetrated the act or acts which caused death and whether it is proved beyond reasonable doubt that the accused intended to cause death or grievous bodily harm.
At the outset I remind myself of some of the matters upon which a jury would be directed.
When I use the terms “accept”, “satisfied” or “proved” in these reasons I mean accept, satisfied or proved beyond reasonable doubt.
I must at all times bear in mind that the accused does not have to prove he is innocent. He is presumed to be innocent. The accused is not to be convicted of either murder or manslaughter unless and until I am satisfied beyond reasonable doubt of his guilt on either charge. This means that each element of either charge, as I have set them out, must be proved beyond reasonable doubt.
I remind myself that the accused chose to give evidence on oath. He was not obliged to give evidence at all. He had the right to remain silent in answer to the charge leaving it to the prosecution to satisfy me beyond reasonable doubt of his guilt. In this case, however, he did elect to give evidence on oath and I therefore evaluate his evidence in the same way as that of the other witnesses. By his giving evidence I have had the opportunity of seeing him and assessing him in the witness box. I remind myself that I must weigh up his evidence in exactly the same way as the other witnesses.
I remind myself that the accused has called evidence of his good character. He has not previously been convicted of a criminal offence. I have heard of his good character from the witnesses called by his counsel. I bear in mind the evidence of previous good character in considering this matter generally. I bear it in mind particularly as a factor affecting the likelihood of the accused having committed the crime he is charged with. I have also considered his good character when evaluating the accused’s evidence.
I heard evidence from experts, the pathologist Dr Byard, the engineer Dr Chen and from Dr Tee, a consultant in Child Protection Services at the Women’s and Children’s Hospital. I have read the report of Professor White, tendered by consent of both parties. I remind myself that I remain the sole judge of the facts and that I am not bound to accept the opinion evidence given by any of the experts. I can accept or reject that evidence and give such weight to the evidence as I decide. As it turns out I have found each of the experts to be properly qualified to be able to offer the opinions that they did and I have found their evidence helpful.
The relationship between the accused and the deceased
The accused and Ms Latara Hunt met when she was 14 years old and he was 15. They had a short relationship, which ended after 4 to 8 months. She was 22 when they contacted each other again through Facebook. They commenced a relationship in March 2011 and began living together in a house at Dennis Court, Clarence Gardens. Ms Hunt’s daughter Destiny and son BJ (both from previous relationships), her mother Karen Hunt, and her brother Michael Turrell also lived in this house. The family and the accused moved to a property at 112 Winston Avenue, Melrose Park, about two to three months prior to BJ’s death.
The accused, Ms Hunt and BJ lived in a granny flat that was separate from the main house. Destiny had her own room in the main house. She was 5 years old. The accused had a job in the beginning of the relationship. When he became unemployed he and Ms Hunt spent every day together. Ms Hunt, her mother Karen Hunt and Christian Edwards (her mother’s former partner) gave evidence that the couple had arguments, but that these were not more frequent or more intense than those of a normal relationship. Ms Hunt gave evidence that there was no physical violence between her and the accused. She stated that the accused had thrown a couple of things at her, for example an ash tray, but had not harmed her either by throwing anything at her or by physical blows. Ms Hunt stated that in the days leading up to BJ’s death there had been no significant arguments, perhaps at most a few minor disputes. Following BJ’s death, the couple continued their relationship until his arrest in early March 2012. They have been separated since then.
When they first began seeing each other again in March 2011, Ms Hunt was involved in court proceedings with BJ’s father in regards to the custody of BJ. She subsequently gained shared custody of BJ and in the months prior to his death, had him in her care for three nights and days of the week. In her evidence Ms Hunt stated the accused got on well with BJ and never disciplined him. Karen Hunt also stated she never saw the accused discipline BJ. Ms Hunt said that was her role and the accused took no part in it.
The evidence shows that the accused was not involved in disciplining either of Ms Hunt’s children. He generally had a passive role in relation to the children and the evidence shows that he had never exhibited any violence towards BJ. He got on well with both Destiny and BJ.
As I have said, at the time of his death BJ was being looked after alternatively by his father and his partner Jessica on four days a week and for the other three days Ms Hunt had custody.
BJ had been returned to Ms Hunt at the address at Winston Avenue by Jessica on the morning of Friday 13 January 2012. Although he had gone to bed late the previous night BJ was quite normal that Friday morning. It was approximately 8.00 am when he arrived. During that day the accused was absent from the house for most of the day. He came home at approximately 5.00 pm. During the day Ms Hunt looked after both Destiny and BJ. She also visited her neighbour Ms Kiara Bell.
Ms Hunt’s mother Karen and her partner Christian Edwards were going out to dinner that evening but had agreed to look after the children so that the accused, Ms Hunt and Ms Bell could go to the Victoria Hotel for drinks.
Events leading to BJ’s death
Prior to going to the Victoria Hotel, Ms Bell came around to the granny flat and she, the accused and Ms Hunt all consumed alcohol. Ms Bell brought around some vodka and she and Ms Hunt mixed that with soft drink. The accused was drinking scotch mixed with coke. He and Ms Hunt both smoked some methamphetamine. The accused also smoked some cannabis. The accused had approximately four to five drinks prior to leaving for the hotel according to Ms Bell.
The accused, Ms Hunt and Ms Bell got to the Victoria Hotel at about 10.15 pm on 13 January 2012. Whilst there they consumed more alcohol, approximately three to four more drinks each. They returned home just after 2.00 am on 14 January 2012. Michael Turrell, Karim Kamara and Josh Kelly (friends of Mr Turrell) arrived home at around the same time as the accused, Ms Hunt and Ms Bell. All three boys were staying at the house in Mr Turrell’s room. BJ was asleep in the main part of the house in the lounge room when they arrived home, having been put to bed by his grandmother. Destiny was also asleep in the lounge. Ms Bell left shortly after they got home and did not see BJ at that time.
The evidence given by both Ms Hunt and the accused up to that point of time is more or less consistent. However, there are different versions of what happened next. Ms Hunt stated the accused went into the main house once, and came out carrying BJ, and that he told her he had put Destiny in her bed whilst inside getting BJ. Mr Kelly gave evidence that he saw the accused with BJ in the kitchen getting water. He said BJ was standing next to the accused. Ms Hunt stated the accused put BJ to bed after she changed his nappy. Sometime after BJ had been brought out to the flat from inside the house and placed in his bed, there was an argument between the accused and Ms Hunt in the granny flat. As a result of the argument she said that she left the granny flat and went back into the house and dozed off. BJ then remained in the granny flat with the accused.
Ms Hunt stated she went back to watching TV and dozed off but was not sure for how long. She stated she awoke to the accused shaking her saying “There’s something wrong with BJ”. She ran to the flat and BJ was on the corner of the bed and not responsive and his head was the wrong way up. She stated BJ was wearing nothing other than his nappy. She stated she noticed small bruising just under his left eye and a small bruise near his left ear. At this time the accused was applying mouth to mouth resuscitation. While he did this she ran and got her mother. Ms Hunt stated she searched for her phone and tried to ring 000. It is an agreed fact that this call was made at 4.48 am. The accused grabbed the phone from her and continued to speak to 000 while Karen Hunt took over giving BJ mouth to mouth. They decided to drive to the hospital instead of waiting for an ambulance.
Events at the hospital
Ms Hunt gave evidence that the accused drove the car while she held BJ in her arms. Both stated they did not speak about what had happened in the car, she stated her focus was on BJ. Karen Hunt and Christian Edwards, Mr Turrell and Mr Kelly drove in a separate car to the hospital. Ms Hunt and the accused ran into the hospital and BJ was taken by hospital staff. It was an agreed fact that they arrived at the hospital at 4.54 am.
Ms Hunt said that a nurse asked her what happened and she replied that she did not know. She stated that the accused responded to the nurse and said “He had woken up to a whinge and a thud and he thought it was BJ walking around to get into bed with us … when BJ didn’t appear around the corner he said he pulled the screen back and BJ wasn’t laying in bed and … he found him on the ground between the wardrobe and the bed base”. She gave evidence that the nurses continued to question her but she did not really answer and tried to push past them to get to BJ, and the accused spoke to the nurses instead. She stated the accused repeated what he had said initially to the rest of the family once they arrived. She said the accused gave that account to many others and she did not hear any additional details.
Ms Hunt admitted in cross examination that she told Senior Constable Bell in an interview at the hospital that she was in the granny flat at the time the alleged incident occurred, and gave details about what occurred in the room at the time. The details she gave were very similar to those the accused gave to hospital staff and in his interview with the police. She said she followed what the accused had said initially and repeated it.
On 2 March 2012 Ms Hunt amended her statement. She was cross-examined about some inconsistencies, in particular that she originally stated she was in the room. There were other inconsistencies within Ms Hunt’s evidence, however these were not directly relevant to the unlawful acts causing BJ’s death. Although her evidence contains inconsistencies and it might be dangerous to rely upon her as a witness on some aspects when there is no supporting evidence, she and the accused in their sworn testimony both say he was the only person in the granny flat with BJ after Ms Hunt left following the argument.
The crime scene
Brevet Sergeant McKenzie was the first person to examine the granny flat after the family left for the hospital. He examined the room shortly after 6.20 am. I have examined the photos Mr McKenzie took. They are helpful in gaining an understanding of where items of furniture were positioned in the room at the time the incident or incidents occurred, and help to show the state of the room at the time. The room itself is extremely untidy. There is general clutter around the couch, main bed and TV area. There is little space on the floor. The sleeping area is on the far end of the room, furthest away from the door.
On the main bed there were a pair of scissors, a phone charger and a ventolin apparatus (photograph 32). BJ’s bed can be seen in between the main bed and a wardrobe (photograph 10).There is a blue pillow on the bed, and a singlet and T-shirt of BJs (photograph 12). Mr McKenzie measured the floor to the top of this bed to be 250 millimetres in the bottom left corner and 340 millimetres in the right hand bottom corner (one side was sitting slightly higher than the other). The red chair, upended, is slightly on the end of the bed (photograph 12). A speaker can be seen against the wall, at the top above the head of the bed (photograph 14). It can clearly be seen in the photographs, in particular 19, that BJ’s mattress is touching the main bed and wardrobe. It is wedged quite tightly between these. The bed base without the mattress on top can be seen in photograph 23. It is alongside the main bed, and there is a gap running between it and the wardrobe without the mattress. Both Ms Bell and Ms Hunt gave evidence that the room as depicted in the photographs was in quite a different state from when each of them last saw the room, and various items were in different places. That was at a time when they went into the granny flat after arriving home from the hotel at about 2.00 am.
Nothing had been moved in the room from the time when BJ was found until Mr McKenzie examined it at about 6.20 am.
The evidence given by the accused
The accused gave a different version to Ms Hunt. He stated that earlier in the night he got BJ from the main house, brought him out to Ms Hunt and then returned to the main house. He stated he went to the toilet for a few minutes, then decided to put Destiny to bed. He stated that he carried her to bed, and spent four to five minutes with her while she went to sleep again. He estimated he was away from the granny flat for ten minutes. He stated when he came back Ms Hunt was sitting or standing by the foot of BJ’s bed, while BJ was tucked into bed. The accused stated BJ was in the process of falling asleep and was only slightly awake. He said good night to BJ and then sat on the couch to watch TV.
He said that he and Ms Hunt did have a disagreement but said it went on for no more than five minutes. He stated she then went into the main house. He then went outside and smoked a cannabis cigarette, watched some television, then fell asleep.
The accused stated he woke up to a “bit of a noise and a murmur from BJ”. There was a curtain between BJ’s bed and his bed which was closed. He sat up partially in the bed, waited for BJ to get into the bed before falling asleep again, and was unsure how long he waited. The accused stated he then woke up again, and got up with the intention of going to see Ms Hunt, whereupon he checked on BJ to find him stuck between BJ’s bed and the cupboard. He gave evidence that BJ was face down with his left arm up above his head, with the arm sitting underneath the side skirt of the cupboard. BJ was stomach down. He stated he was wearing a nappy and a t-shirt. He said he then put BJ on the bed, tried to clear his airway and then began to give him CPR as he was making a “gurgling sound”. He then ran in to get Ms Hunt and the process of getting BJ to hospital began.
The accused gave evidence that once inside the hospital, BJ was taken into a room and he and Ms Hunt were removed from the room after ten minutes. He stated at one stage he went to call BJ’s father to tell him what had happened, before being moved into a waiting room. He said in the waiting room a police officer or a nurse (he could not remember which) came in and asked what happened. The accused said he “went to say what happened, I got about four words in and was cut off by Tara”. He stated Ms Hunt said she had found BJ in the room. The accused stated he then did not get asked about any details until Senior Constable Bell interviewed him. He stated he continued with what Ms Hunt had said initially. I will later reject the version given by the accused.

In his evidence the accused stated that he usually drank alcohol once a month, smoked cannabis every day or every second day and smoked methamphetamine about once a week.
He said that on the night in question he drank three scotch and coke before going to the hotel and also smoked some cannabis and took methamphetamine about 5.00 pm or 6.00 pm. He said he was not affected by the drugs or alcohol when he went to the hotel but conceded when cross-examined that they may have had a slight effect. He also agreed that he was tipsy at the hotel but not when he left.
He was cross-examined about the disagreement he had with Ms Hunt. It was put to him that it was related to her being unfaithful. He denied that was the cause of the argument. He denied being jealous. He said he was not angry and the argument was in fact about a telephone. He said he was not tipsy at that stage and not feeling anything from the methamphetamine. He said that he was not actually sober but not far from it.
He denied that he heard a noise like a primal scream and could not recall saying that to a nurse at the hospital. He denied saying to a nurse that he heard a thump and a sound like a child having a nightmare and a screaming sound. He said what he heard was a moan.
The accused said that when he and Ms Hunt were first together at the hospital he went to say what happened but she cut him off and told the story that she was in the room. He said that continuing with her story was a stupid mistake.
He said he tried to speak over the top of Ms Hunt because she did not know what had happened. He said he was trying to speak over the top of her because he was the one in the room and she could not have known what went on. He agreed that they did not talk about the events in the granny flat on the way to the hospital.
The accused also said he told the police at the hospital that he had put Destiny in her bed when he had grabbed BJ because he was highly stressed. He later said, when further cross-examined, that what he said earlier was because he heard Ms Hunt say it.
In the video recorded interview, exhibit P17, which was commenced at 8.27 am on Saturday morning some hours had passed between the time when they went to the hospital and had discussed what happened with the nursing staff. The accused was not privy to anything Ms Hunt had said to the police and had not discussed the matter with her. I rely on the police officers’ evidence on this aspect.
In his interview with the police at the hospital he states positively that he went to the toilet, heard BJ whimpering, picked up Destiny and put her to bed and then took BJ to the granny flat and put him to bed.
At this time he was relating a version of events which placed both he and Ms Hunt with BJ in the granny flat at all relevant times. This of course was untrue as recounted by both he and Ms Hunt in their evidence.
He also said in this interview that BJ had “sort of rolled off the bed but landed sorta in between the cupboard and the bed”.
He said that he had heard “a thud and like a whimper”. Later he said “a bit of a thump and a bit of a whine”.
When asked again by the police officer in the interview he confirmed the sequence of events as him putting Destiny to bed and taking BJ to the granny flat. He did not mention the period of 10 minutes when he said he went back out to the house to put Destiny to bed.
I have discussed the evidence the accused gave regarding his movements on Friday evening and Saturday morning and the details of the interview he gave to the police. There are a number of inconsistencies within his evidence. I keep in mind that recalling the events of the night BJ was taken to hospital would be distressing for the accused and it may have been difficult for him to recall details accurately, particular when giving evidence some time after the event. However I have come to the view that there are certain inconsistencies that make the accused unreliable as a witness on some key issues.
The accused and Ms Hunt both agreed in evidence that there was no conversation between them on the way to the hospital. In the accused interview (the video recording of which was tendered at trial) the accused stated Ms Hunt had gone to bed in the flat with him, and she was present when he heard a “thud and … a whimper”. In his evidence in court he stated Ms Hunt had gone into the main house earlier and was not in the room as events unfolded. Ms Hunt also said initially in her interview that she was in the room. This is inconsistent with her evidence in court, that is, that she went into the main house earlier and was not in the room as events unfolded.
The accused stated that when they arrived at the hospital Ms Hunt spoke before he got the chance to tell them what had happened, and that he was copying what she said. He stated he was “trying to protect her in that sense … after she gave the first lead of events”. He stated Ms Hunt only knew that he found BJ beside the bed, and that she cut him off and said she was in the room. The accused asserted that Ms Hunt spoke first. Ms Hunt’s evidence is that the accused spoke to the nurses and explained first. As I have said above, I have found some of Ms Hunt’s evidence to be unreliable. However, in regards to who “told the story” in the hospital, there is independent evidence of three hospital staff who were present during the attempted resuscitation of BJ when he was initially brought in.
Verity Sikorski, a nurse present in the resuscitation room when BJ was brought in, gave evidence that she asked “How did this happen?” and the male (the accused) responded and said “He fell out of bed. I heard a primal scream at about 1 in the morning. I thought it was night terrors so I didn’t check on him and then at about 4 o’clock I went in to check on him and he was gurgling”. She gave evidence the mother did not participate in the conversation and was “quite distraught … very anxious as to how her baby was”. She stated the male repeated his story a few times.
Amy Falanga, a nurse also present when BJ was brought in, gave evidence she asked the couple what happened, and the accused answered that he heard a scream, heard a noise and found BJ stuck down the side of the bed. She stated that Ms Hunt did not say anything during this conversation except repeating “my son”.
The paediatric registrar, Petra Bos, also asked the couple what happened and gave evidence the accused replied that he woke up to a sound like a thump, and found BJ lying on the floor with his head between the bed and the cupboard. She stated the mother did not say a lot.
The accused gave evidence that after bringing BJ from the house and giving him to Ms Hunt for his nappy to be changed, he then went back inside the main house, went to the bathroom and put Destiny to bed. He stated this would have taken 10 minutes. This was the first time that this version was given by the accused or anybody else. In his interview with Senior Constable Bell at the hospital he stated he put Destiny to bed in the main house, picked up BJ and took him out to the flat, and was in the room the entire time prior to BJ being put to bed. Ms Hunt stated in her evidence that the accused said that when he went to go to the toilet he heard BJ grizzling so he brought him out to the granny flat. She said the accused put BJ to bed. She was cross-examined about how many times the accused left the granny flat to go into the house. She initially said maybe twice but when pursued she said there was no second occasion. She stated that “he came out and said he put Destiny in her bed and BJ was awake”.
When cross-examined about his interview, the accused stated “At that stage I was highly stressed from what I had gone through. I could very well have said that, but the actual events that happened was BJ first and then I went and got Destiny afterwards”. However when questioned again regarding this statement he stated he was continuing the story that Ms Hunt told at the hospital. He gave evidence that Ms Hunt first told this story when he got cut off initially. He stated for the police interview he was “saying the story that she said”.
It was put to the accused that there was no second trip. He disputed that. He was cross-examined about his interview. I have already dealt with this.
As I have said above, three independent witnesses at the hospital, the nurses Verity Sikorski, Amy Falanga and paediatric registrar Petra Bos all gave evidence that Ms Hunt was not the person explaining what had happened. There is no evidence of her mentioning the accused going back inside to put Destiny to bed. The accused was not present for MsHunt’s interview with the police officer. Ms Hunt was not present in his own interview with the police officer when the accused stated he put Destiny to bed at the same time as getting BJ. I find there is no reasonable possibility that Ms Hunt gave the version of what happened to the hospital staff. It is a detail that was insignificant at the time of his first interview because on what both said at the time Ms Hunt was present in the granny flat throughout. I do not believe the accused on this point.
There are a number of other inconsistencies between the accused’s evidence, his interview, and what he said to other family members, in regards to the time period when he was alone with BJ in the granny flat. He gave evidence that the noise he heard from BJ was “a bit of a thud and a murmur, just a noise from BJ”. As I have detailed above, he stated a number of different noises to the hospital personnel, and variations of this description to Michael Turrell, Josh Kelly, and the police at the hospital. Whilst these differences might appear minor they are significant if one considers the difference between “a primal scream” and “a bit of a thud”.
The accused gave differing descriptions of the position he found BJ in when he saw him in between the cupboard and the bed. He stated in evidence he found BJ with his left arm in the air and right arm and shoulder underneath the gap. However, he told members of the police, Karen Hunt, and Christian Hunt he found BJ with his arms in differing positions than that which he described in evidence. The points of difference again may seem minor but in the whole context of the accused’s evidence they are significant in my view. They are significant because it illustrates inconsistencies between the accused’s evidence and statements he has made out of court. I accept the accuracy of the evidence given by those to whom the accused spoke.
BJ’s bed was photographed as found by police on the morning of 13 January 2012. In photograph 19 the bed can be seen tightly fitting in between the cupboard and the main bed. The accused gave evidence the mattress was not in such a position when he found BJ. The accused stated there was a gap beside the bed and the base, in which BJ’s head and shoulders were, that did not appear in the photographs. However, he stated he did not move the bed, and by his own evidence, nobody else in the family went to that side of the bed once in the room prior to taking BJ to hospital. Whilst it was submitted that the accused’s version of where he found BJ was impossible, I find it was not a reasonable possibility.
The accused could not give an explanation as to why the scissors, the ice packs, and the phone charger were on the main bed, and agreed they could not have been there when he was lying on the bed. The accused could not give an explanation as to how the red plastic chair was up-ended on the end of the bed, or the toy box was up-ended, and stated he picked the toys up earlier on the Friday. Again on each of these matters the items of evidence are significant when one considers that some violent action took place whilst the accused was alone in the room with BJ. He was the only person responsible for those items and where they were found and his lack of explanation casts doubts upon his reliability as a witness.
When giving evidence in chief the accused was at most times positive in his answers and retained a satisfactory demeanour in answering questions.
However he became somewhat defensive when probed as to some of the areas of his evidence. In particular I thought his demeanour changed markedly when he was pursued in cross-examination on the topics of the suggested 10 minute window of opportunity for Ms Hunt to have been alone with BJ and why he had not mentioned this in his interview. He gave two unsatisfactory answers to why he had not mentioned the point earlier. Likewise he became defensive in his explanation of how he followed the lead of Ms Hunt in relating the events at the hospital. There is evidence from the hospital staff that shows he is wrong in this regards. She had nothing to tell. She was not present. The accused acknowledges this but maintains against all logic that she was relating what happened. All of those matters combined cast doubts upon the reasonableness of the version of events given by the accused in his evidence.
The injuries sustained by BJ
After initial treatment at the Flinders Medical Centre BJ was transferred to the Women’s and Children’s Hospital. He was in a very poor condition and was pronounced dead at 18:00 hours on 15 January 2012.
The injuries sustained by BJ were described in detail by Dr Tee, a staff specialist paediatrician at Flinders, who examined BJ at the hospital and who was also present for the post mortem examination, and Dr Byard, a senior specialist forensic pathologist, who examined BJ post mortem. There were photographs taken while BJ was still on life support and also post mortem. The photographs depict extensive injuries over a wide area of his body.
Dr Tee described in detail the injuries to each different part of BJ’s body. There was significant swelling throughout his entire brain, and there was evidence of a recent subdural haemorrhage, a collection of blood in the subdural space, along with other small areas of haemorrhaging in the brain matter itself. Dr Tee gave evidence that BJ’s face showed a cluster of bruising across the entire forehead, from the left to right side and from the hairline to the eyebrows. Dr Tee stated the kind of mechanism that might cause this sort of bruising would be blunt force impact, that is, something either striking BJ or him striking something. Dr Tee gave the opinion there were at least two different impacts to the forehead. She noted the bruises to the right eye would be caused by a blunt force impact to that particular area, since it is an area protected by the orbital rim. Dr Tee described injuries to both ears, that would be caused either by impact, grabbing or pinching, and also injuries to the cheeks and underneath the left side of the jaw, which is normally a protected area. She noted a separate area of bruising in a different tissue plane just above the ear, and another separate injury to the back of the head.
Dr Byard gave the opinion there is a pattern of an assault, not an accident, given the pattern of bruises to the head and face, and that there was bruising on both sides of the forehead and cheeks, as well as the side of the head. It was his opinion that with accidents children tend to get hit in one or two places, whereas an inflicted injury tends to be symmetrical on both sides, front back and sides.
Dr Byard observed the injuries to the head as largely irregular, and did not believe the combination of injuries in this area could be created from a fall. He described the left temple as being a large area of “boggy swelling” with some blue bruising and abrasions, and a lot of bleeding underneath. Dr Byard noted the bruising under the jaw was an odd place for an injury, and an unusual place for a bruise from a fall. He stated the usual mechanism for the cheek bruising, the eye bruising and also some part of the forehead would be a blow to the face, from a fist or an object. He was of the opinion it would require a reasonable amount of force such as a punch. Dr Byard stated this type of force as sustained to BJ’s head would be similar to a fall from a several story building, from a vehicle accident or where someone has been assaulted. He observed haemorrhages, subdural haemorrhage and a traumatic subarachnoid haemorrhage, an adhesion to the brain. He was of the opinion that all of these findings are a marker of blunt trauma.
Dr Tee described the bruising to the neck as being several other areas of discrete cluster rather than one large area, as they were quite remote from each other. She noted a small area of bruising just above the left nipple. In relation to his left elbow, she described a very large area of bruising and swelling of skin around the elbow and bruising on the arm. She stated both of these areas were not common for children because children would put their hands out to protect themselves, and they were soft tissue areas. Dr Tee gave the opinion that the degree of force in relation to this injury was quite significant, more than normal daily activities. Dr Byard agreed the injury to the elbow would require a fair amount of force, either being hit forcibly or thrown up against something. He likened the injury to a car accident.
There were injuries to BJ’s genital area. Dr Tee observed several areas of bruising above the base of the penis and two areas below that, and also near the tip of the penis and the underside. Dr Tee gave the opinion that these areas are normally quite mobile so injuries in this area are quite unusual. Dr Byard noted an area of petechial bruising and multiple areas of “scratching” and bruises. He gave the opinion the injuries under and around the genitals were an unusual place for an injury and is not a common area of injury to a child. He was of the opinion there were separate grabbings or twisting of the scrotum or penis.
Dr Tee and Dr Byard observed areas of bruising on BJ’s buttocks, and that these were on very different body planes, and thus it was unlikely they would have been caused by one impact. Dr Byard stated it would be possible for the bruising to occur with just one injury but would be from a fall onto an irregular surface. There were multiple impacts on this area. Dr Tee gave evidence that a nappy would give protection to the genital and buttock area. She was of the opinion that she would not expect the injuries to the buttocks or genital area if a child was wearing a nappy. Dr Byard was also of the opinion it would be hard to cause bruising with a nappy on the child.
Finally Dr Tee noted bruising just below BJ’s right knee, but both doctors stated this bruising could be incurred through normal child behaviour in the course of playing.
In Dr Tee’s opinion there were close to ten bruises around the face and head, and to the body there were approximately ten different injuries, possibly more. Dr Byard gave a “very conservative” estimate of the minimum number of “impacts” as being eight areas in which there was at least one impact. He gave the minimum number of blows to the head as being four. Both gave the opinion that the degree of force required was quite significant, and might have been caused by a blow from some sort of object to the head or by the head impacting with another object. Dr Byard gave the cause of death as blunt cranio cerebral trauma. Overall there was extensive bruising, both on bony prominences and non-bony prominences. Both Dr Tee and Dr Byard were unable to place an age on the bruises, except to say they were within several days, with Dr Byard placing an age from several hours (from when he observed BJ) to several days. Dr Byard stated the bruises could appear very quickly, particular to the face and skull due to the thinness of the skin, and certainly after an hour at least.
Fall from low height
When questioned about the possibility of a child being caught between the bed base and the wardrobe, Dr Tee gave the opinion the child could fit in certain positions but that developmentally, it would be expected a child would be capable of physically manoeuvring themselves out of that situation at 2 years old. Dr Byard agreed with this and did not believe the child’s head would fit into that space. Dr Tee gave the opinion that a fall from a bed of this height would involve a very low force, and she would not expect this degree and extent of injury, particularly the injury to the elbow. Dr Tee was of the opinion that whilst the possibility of death from a short fall is possible, it is rare and the research is still controversial whether a fall from such a height can cause death. Dr Byard was of a similar opinion, and stated if it was just BJ rolling of a couch, these injuries would not be possible. He believed it may be a possibility if the child fell from a greater height with acceleration and forward propulsion.
Loss of consciousness

Both doctors were cross examined on the likely timing of BJ becoming unconscious after suffering the head injuries. Dr Tee gave the opinion that if a head injury is sufficient to cause a subdural haemorrhage, it may bring about an immediate collapse to the injured person. She stated there may not have been an immediate loss of consciousness and that she could not determine when a complete loss of consciousness occurred. However, she was of the opinion that the high degree of force used to cause the primary brain injury would indicate there was most likely a change in consciousness very shortly after impact. Dr Byard was of the belief that if there is a force significant enough to cause a toddler’s death, there would be no way the toddler would appear normal. He defined normal as making eye contact, feeding, playing, and being ‘his normal self’. He was of the opinion BJ could have been unconsciousness immediately from concussion, or he would have had an impaired conscious state, characterised by grizzly behaviour, vomiting, non-interactive and in pain. Dr Byard stated he would expect the child to react to the genital injuries by screaming and crying.
Dr Chen
The final expert Dr Chen gave evidence of experiments he had conducted to determine whether a child of BJ’s weight and measurements could end up in the position the accused says that he found him, that is, with his head between the bed base and wardrobe area. BJ weighed 18 kilograms at the time of his death. Dr Chen considered a number of scenarios, with variations on how BJ’s head could be positioned, and also how the mattress could have moved, by either bending and folding over of flipping up. Dr Chen gave evidence that even with BJ’s head positioned at the narrowest point, the minimum force required would be 19.3 kilograms plus or minus 5%. This weight would increase for the head being in different positions, or if more of the child was in contact with the mattress. Dr Chen’s evidence cannot be entirely conclusive as there is a possibility of inaccurate measurements. If the gap between the mattress and the wardrobe was slightly greater, all aspects of the measurements would change. His evidence does demonstrate though the high unlikelihood of BJ’s body falling into the said position using just BJ’s body weight. If BJ was where the accused said he found him, it does not follow that by accident somehow or other he ended up in that position. It is not a reasonable possibility in my view.
Summary of the prosecution case
The prosecution case is to a large extent based on the severity and number of injuries sustained by BJ and the fact that the accused was alone with BJ for some time. Dr Byard and Dr Tee gave the cause of death as blunt cranio cerebral trauma. This included a left front subdural haemorrhage which caused the brain to swell.
The prosecution case is that the child was beaten and that it was the accused who did that. The prosecution particularly refutes that the injuries could have been caused by a fall of less than 30 centimetres onto a carpeted floor.
I am asked to infer that from the nature and extent of the injuries the accused intended at least to cause grievous bodily harm.
The prosecution also relies upon the evidence of Dr Chen as to the forces required to cause the mattress to be bent downwards and allow BJ to fall into the space between the bed and the wardrobe. The prosecution relies upon the fact that the number and nature of the injuries sustained are inconsistent with the account given by the accused which account he repeated on many occasions to many different people.
The prosecution case is that the only reasonable inference from all of the evidence is that the accused inflicted the injuries to BJ and as Ms McDonald SC put it “beat this child to death”. She submitted that the accused had taken a cocktail of methamphetamine, alcohol and cannabis that night. She submitted that he inflicted the injuries after he was left alone with the child following an argument with Ms Hunt.
Ms McDonald relies on the number of blows which must have been inflicted to cause the injuries. She referred to Professor Byard’s evidence to the effect that the injuries show a pattern consistent with an assault and not an accident.
Ms McDonald referred to the accused’s evidence as opening up the opportunity for Ms Hunt to have been alone with BJ for about ten minutes, raising the possibility that it was her who caused the injuries.
It is suggested I should disbelieve the accused’s evidence that there were two occasions when he says he left the granny flat. In his initial interview with the police it is clear that he is only referring to one such occasion. The latter is a recent invention it is submitted.
Likewise it is suggested I should disregard the accused’s evidence regarding BJ’s earlier fall from the plastic chair being the cause of some injuries which it was suggested was also a recent invention.
Ms McDonald refers to the injury to the temporal lobe and the experts’ opinions that such an injury would mean a change of consciousness very shortly after receiving such an injury. Such an injury would require substantial force. In particular Dr Byard said there was no way with a head injury like this that the baby would appear normal. He would not be interactive and he would be obviously impaired. Karen Hunt says that while in her care he was quite normal, wanted to interreact, wanted to play and wanted to engage. If there was an earlier incident in which the two children banged their heads together then it must have been a minor incident.
Ms McDonald submitted that the accused attempted to distance himself, first by his version that he was absent for 10 minutes when Ms Hunt was left alone with BJ and, second, as to the amount of alcohol and methylamphetamine consumed.
As to the consumption of methamphetamine, cannabis and alcohol she referred to Professor White’s evidence that some drugs could induce aggression, exaggerated self-confidence and risk taking behaviour. She refers to Ms Bell’s evidence regarding the incident at the hotel in which the accused is suggested to have interfered with a situation in which he had no involvement thereby showing some form of aggression. Ms Hunt and the accused give a different version to the effect that it was really just a bit of a joke. Ms McDonald says that it is another incident of the accused attempting to distance himself from the argument which he and Ms Hunt had. It was the argument which caused Ms Hunt to leave the room thereby leaving the accused alone with BJ.
Ms McDonald points to various items in the granny flat and on the main bed which could only have been put there by the accused. That includes the Ventolin puffer, the ice pack, the scissors and the phone charger. She says that is suggestive of some sort of incident which included furniture being thrown about and the toy box upended.
Ms McDonald submitted that the account by the accused of how the various conversations took place at the hospital is also significant in showing another attempt by the accused to distance himself. He said that he followed the lead of Ms Hunt in giving a version of events but the evidence from the hospital staff is that it was he who was leading the story and not her.
Ms McDonald pointed to the application of commonsense to indicate the inherent unlikelihood of the child falling from his bed and ending up where the accused says he found him. Such a fall could not account for all of the extensive injuries in any event.
There was a particular focus in the prosecution address on the mattress and the accused’s version of how he says there was a gap between the wardrobe and the mattress when he found BJ. Ms McDonald suggested that this was an impossibility as demonstrated by the photograph showing the position of the mattress as photographed by the police officers at the crime scene. It clearly shows the mattress wedged in between the main bed and the wardrobe.
Ms McDonald summarises by saying that there is a range of evidence disproving the hypothesis that BJ fell from his bed and somehow or other became wedged in between the bed and the wardrobe. She said this includes commonsense, expert medical evidence, expert engineering evidence and the observations at the crime scene. She put it to me that it was not even a remote possibility that the events unfolded as the accused described.
Finally Ms McDonald submitted the only logical inference on all of the evidence was that the accused caused the injuries which led to BJ’s death. In relation to the question of intent Ms McDonald relied on the number and type of injuries sustained by BJ. She submitted that the accused must have intended to cause grievous bodily harm. She submitted this was not a case of an intent to kill but something which flared up at the moment and that he intended to cause grievous bodily harm. As an alternative Ms McDonald put that it was manslaughter by an unlawful and dangerous act.
Defence submissions
Mr Boucaut SC for the accused challenged the description by the prosecution of the effect of excessive drug and alcohol consumption. He pointed to Professor White’s interpretation of the amount of methylamphetamine which was at the lower end and consistent with occasional recreational usage. He refers to the evidence of Ms Hunt and Ms Bell. He suggests that the Crown case has exaggerated this aspect of the evidence unfairly and that the evidence shows nothing other than that the accused was happy after a night out in which some alcohol was consumed and in which some drugs were taken.
Mr Boucaut pointed to the lack of violence by the accused in his relationship with Ms Hunt. He submits that he was not a volatile, aggressive person and that the evidence of Ms Hunt and her family was to the opposite effect. Mr Boucaut submitted that the accused was a passive sort of individual and in particular in relation to the children he never became angry or aggressive.
Mr Boucaut submits that it is wrong to try and analyse the minutiae of what took place in the room at a time when efforts were being made to revive the child and it is likely that memories were inaccurate especially as to minute details.
Mr Boucaut did not challenge that the injuries resulted from some application of unlawful force. He conceded that the evidence pointed to a finding along those lines. His submission from that point was that, assuming the injuries were inflicted by someone unlawfully, there was no proof of any murderous intent. He emphasised the difference between an intention to inflict an injury to cause pain and one to cause grievous bodily harm. He submitted that the injuries in this case were not of themselves indicative of any murderous intent regardless of who inflicted them. He conceded that they may, however, indicate an intention to hurt BJ. He instanced the injuries to the genital area which he submitted were hardly likely to have been inflicted with an intention to either kill or cause grievous bodily harm. Likewise with the injuries to the buttocks.
As to the head injuries Mr Boucaut submitted that it did not necessarily mean that they were caused by blows delivered with either an intention to kill or to cause grievous bodily harm. He said the evidence on intent in this regard was intractably neutral as between a murderous intent and something less than that.
Mr Boucaut submitted that there was a scenario that one head injury could have resulted from a fatal fall whereas others were caused by force applied during an unlawful assault. If there was a reasonable possibility of that then the accused should be acquitted of murder. Mr Boucaut submitted that the issue of causation and the relationship between the fatal injury and the application of unlawful force was not clear cut and that uncertainty created a reasonable doubt.
Mr Boucaut referred to the evidence of Ms Hunt telling her mother about an incident earlier in the day. Ms Hunt denies that that conversation took place. He referred to Ms Hunt’s evidence in relation to the fact that a makeshift nappy was not used, which is contrary to the evidence of Karen Hunt. Ms Hunt insisted that it was an ordinary disposable nappy and Mr Boucaut queries why she would do that in view of the evidence of Karen Hunt. He answers this by saying that it is an attempt to distance herself by telling a lie. Why she would want to distance herself is a matter of speculation. However, whoever inflicted the injury to the genitals and the injury to the buttocks had to take the nappy off. The evidence is that the accused never changed nappies. Mr Boucaut asked me to treat Ms Hunt’s evidence with great reservation in any respect where there were inconsistencies with other evidence. He submitted that it was more than just a matter of credit because it related to potential opportunity for her to have been involved in some way or other with the injuries.
Mr Boucaut emphasised that the accused was placed in a difficult position in that, not knowing who caused the injuries, he was in the position where he effectively had to prosecute some other possibility. Mr Boucaut reminded me that the accused does not have to prove that he did not do it. He asked me to take account of his good character and the difficulty in remembering the minutiae of detail in relation to the panic and confusion which followed the attempts of resuscitation.
Mr Boucaut addressed me on the issue as to how the accused says he found the child. He said the prosecution seemed to be presenting a case on the basis that the accused had offered a version that the child fell off the bed and landed in the position where the accused found him. Mr Boucaut pointed out that the accused has never said that but has only said that is where he found the child. He cannot say how BJ got there but he can say where he found him. Mr Boucaut submits that the child, as a matter of commonsense, could have got into the position in which he was found in any number of ways. The accused merely heard some kind of noise and heard a thump.
Mr Boucaut concluded by submitting that the prosecution case was completely unsatisfactory as regards establishing the intent required to convict for murder. He pointed particularly to the confusion in the evidence and the lies and inconsistencies in the evidence of Ms Hunt. He says she had the opportunity and that creates a reasonable doubt.
Mr Boucaut has asked me to remain dispassionate in considering the fate of his client. I have attempted to do that. It is not an easy task in any case when a young child has suffered fatal injuries at the hands of someone else.
The photographs of the injuries and the medical evidence concerning the nature and extent of the injuries are clearly quite distressing. I have attempted to disregard that.
I have approached the evidence at all times on the footing that I must consider that there may be an explanation for the injuries consistent with the innocence of the accused.
I have considered in particular whether there is any reasonable possibility that Ms Hunt caused at least some of the injuries and that therefore there is a reasonable doubt as to the accused causing the death of BJ.
I have not been influenced by the prosecution submission that the accused committed murder in an alcohol and drug induced frenzy. I have made my own assessment of the potential affect of the drug and alcohol consumption.
I have finally considered all of the evidence bearing in mind Mr Boucaut’s comment that it is “intractably neutral” as between murder and manslaughter.
The findings
1.BJ did not sustain the fatal injuries by falling out of his bed or by any other kind of accident. On the opinions of Dr Byard and Dr Tee, it is not a reasonable possibility that he sustained this number of impacts by an accident such as falling from his mattress to the position the accused says he found him in. In final submissions, Mr Boucaut said “commonsense would dictate that the number of injuries do not sit with the accidental causing of injury”. I also note, however, that as Mr Boucaut put in his final submissions, the accused only ever gave evidence of the position in which he found BJ. He has never said that he saw BJ fall and that the fall caused the injuries to BJ. Therefore while a fall can be discounted as an explanation for the injuries sustained, the description of events related by the accused cannot lead to a conclusion that he created a story about BJ falling from bed to exculpate himself.
2.The fatal injuries were caused by an unlawful act or acts which involved blunt force trauma to the head. This is the conclusion from the medical evidence. All other injuries were likewise inflicted by an unlawful act or acts applied with considerable force. The exceptions are minor bruises and scrapes acknowledged by the experts to be from a 2 year old’s wear and tear.
3.The injuries sustained by BJ were all incurred at about the same time and none were incurred earlier in the day. I am of the opinion that Karen Hunt was a reliable witness. By her evidence BJ was normal, playful and wanting interaction, and unwilling to be put to bed when she left him sleeping on the couch. This must be considered with the evidence of Dr Byard and Dr Tee, that following a head injury, or injuries of this nature, the child would not appear “normal”, and would be irritable, possibly vomiting, and would not be walking around. I also exclude as a reasonable possibility that the injuries to other parts of the body were inflicted on a separate occasion to the head injuries. This includes both an occasion where the children may have banged their heads and the occasion of a fall from a plastic chair. By the evidence of both doctors, such injuries to the genitals and buttocks, and particularly the elbow, whilst not fatal, would have caused BJ considerable pain and he would have expressed that pain and it would have been obvious especially to his grandmother who often looked after him.
4.External force by unlawful acts was applied by someone to cause the injuries. These unlawful acts included the blunt force trauma to BJ’s head, and caused his death.
5.The unlawful acts were not performed by a stranger. There is no evidence from any person present at the Winston Avenue address that night that there was any possibility that a person or persons unknown were able to access the house or granny flat at any relevant time.
6.The injuries were not inflicted by any of the occupants, namely, Karen Hunt, Mr Edwards, Mr Kelly, Mr Kamara, or Mr Turrell. I found all of them to be reliable and honest witnesses and none of them had an opportunity to inflict the injuries on BJ from after the time BJ was taken by the accused to the granny flat sometime not long after 2.00 am.
7.I also exclude any person who saw BJ earlier on the Friday morning or Thursday night, that is, Brendan senior, Jessica Schutt, Joanne Bilston, or Kiarra Bell.
8.The injuries were sustained after BJ was taken out to the granny flat by the accused sometime after 2.00 am. Mr Kelly’s evidence of seeing BJ standing in the kitchen with the accused demonstrates that BJ was apparently normal and did not appear distressed. I find the injuries were inflicted between the time BJ was brought into the granny flat by the accused and when the alarm was raised by the accused that BJ was not breathing. The possibility that Ms Hunt committed this act must be excluded for me to find that the accused committed the unlawful act or acts.
9.I find the accused to be the only person alone with BJ in the granny flat after Ms Hunt left following the argument.
10.Ms Hunt did not commit the unlawful act or acts:
(a)I find Ms Hunt was not in the room for the period of time from her leaving the room after the disagreement with the accused until the accused came in to tell her BJ was not breathing.
In my view it does not matter that Ms Hunt is herself an unreliable witness. The reason for this is that on the key point as to her absence from the granny flat she and the accused are both telling the same story. As they have both agreed on this point, I have come to the view that I can place importance on this evidence. I have earlier excluded any reasonable possibility that this act was committed some time before Ms Hunt put BJ to sleep in his bed, and I have excluded any reasonable possibility it was anybody else in the house apart from Ms Hunt and the accused.
(b)Ms Hunt was not alone with BJ for the 10 minutes suggested by the accused. I disbelieve the accused and find his evidence on that topic to be a recent invention.
As I have already discussed, the accused gave evidence he left BJ alone with Ms Hunt for a ten minute period in the granny flat while he went to the bathroom and put Destiny to bed.
I conclude that the ten minute window suggested by the accused in his evidence was a recent invention in an attempt by him to shift blame or potential blame to his partner at the time. It is not supported by an analysis of the evidence. I reject the accused’s evidence on this aspect.
(c) I find that the accused gave the version of events to the witnesses at the hospital. I find that Ms Hunt followed his lead even though she knew it to be untruthful.
11.I find that the presence of the ventolin apparatus, phone charger, scissors and ice pack on the bed, the upended red chair, the speaker facing the wrong way, and the upended toy basket indicate some incident had occurred in the flat prior to the accused alerting Ms Hunt to BJ not breathing. The only person who could be responsible for the disarray was the accused. These items were not in those positions prior to Ms Hunt leaving the granny flat to sleep on the couch in the main house. The accused’s evidence is that he did not move them. No-one else could have done so. He remembered them as being in different positions earlier, and would have been unable to lie on the bed, as he said he did, with those items on it. I reject Mr Boucaut’s submission that these items could have been placed there during the resuscitation attempts while Ms Hunt and her mother were in the room. There is no evidence of that. For whatever reason the accused placed these items on the bed after he committed the unlawful acts in his assault of BJ.
12.The accused committed the unlawful act or acts on BJ. He was the only person with BJ for a period of somewhere in the region of one and a half to two hours, during which he had ample opportunity to inflict the injuries. I find this notwithstanding the evidence of the accused to the contrary.
13.As to the elements of murder, I have set out earlier, I am satisfied beyond reasonable doubt that:
(a)It was the act or acts of the accused which caused the injuries which led to the death of BJ.
(b)The act or acts which caused death were deliberate.
(c)They were inflicted unlawfully.
14.I will now deal with the element of intention. Did the accused intend to either kill BJ or to cause him grievous bodily harm? By that I mean really serious bodily harm. In order to prove murder the prosecution must prove an intention to either kill or cause grievous bodily harm beyond reasonable doubt. That intention must have existed at the time the acts causing death were carried out. If there is reasonable doubt as to the accused’s intention then he must be acquitted of murder and then manslaughter by a dangerous and unlawful act is to be considered.
The accused had consumed liquor before going to the hotel. He consumed more at the hotel. I have detailed the approximate amount consumed earlier in these reasons. His actions have been described by several witnesses and the effect of the evidence overall is that he was not drunk but was to some degree affected by the liquor he consumed. There is no evidence he was suffering any obvious loss of faculties as a result of his admitted consumption of drugs.
15.I find on the whole of the evidence that the accused was slightly affected by liquor and drugs at the time he returned from the hotel.
16.I have considered whether because of the accused being affected by alcohol and drugs inferences as to intent, which might otherwise be drawn, should not be drawn. I find at the time he inflicted the injuries, particularly the blunt trauma to the head causing death, the accused acted with a murderous intention. Those blows, on the expert evidence, must have been delivered with considerable force. The number and extent of the injuries allow me to draw the inference as to his murderous intention.
The accused had no motive to kill BJ or cause him grievous bodily harm and none was seriously suggested by the prosecution. The evidence as to his character is to the contrary as he had formed a close relationship with BJ and cared for him in a loving way. He was to all outward appearances a person of good character. I have taken that into account.
He may have become angry as a result of the argument with Ms Hunt and may, because of his consumption of alcohol and drugs, have exercised less self control than he would normally.
17.From the number and extent of the injuries it was a vicious attack. The medical evidence shows the degree of force applied was substantial. Whilst out of character for the accused it nevertheless followed several hours during which alcohol was consumed and drugs taken.
18.I find that the degree of intoxication, which I have discussed earlier, did not preclude the formation of a murderous intent. It may however explain how the accused came to commit the offence.
Conclusion

The verdict is the accused is guilty of the murder of BJ Williams.