R v Ravindran (No. 4)
[2013] NSWSC 1106
•15 August 2013
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Ravindran (No. 4) [2013] NSWSC 1106 Hearing dates: 29, 30, 31 July; 1, 5, 6, 7, 8 August 2013 Decision date: 15 August 2013 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: 1) I find the accused not guilty of murdering his father Ravi Ravindran at Medlow Bath on 23rd April 2011.
2) I find the accused not guilty of manslaughter.
3) I direct the entry of verdicts of acquittal of both murder and manslaughter.
4) The accused is discharged.
Catchwords: CRIMINAL LAW - murder - judge alone trial - reasons for verdict Legislation Cited: Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)Cases Cited: Alford v Magee (1952) 85 CLR 437
Burns v The Queen [2012] HCA 35; 246 CLR 334
Davidson v R [2009] NSWCCA 150; 75 NSWLR 150
DeGruchy v The Queen [2002] HCA 33; 211 CLR 85
Douglass v The Queen [2012] HCA 34; 290 ALR 699
Hoffmann v Boland [2013] NSWCA 158
Plomp v The Queen (1963) 110 CLR 234
R v Hillier [2007] HCA 13; 228 CLR 618
R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527
R v McIntyre [2000] NSWCCA 6; 111 A Crim R 211
R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201
Shepherd v The Queen [1990] HCA 56; 170 CLR 573
Western Australia v Rayney (No. 3) [2012] WASC 404Category: Principal judgment Parties: Regina (Crown)
Joshua John Ravindran (Defendant)Representation: Counsel:
T Thorpe (Crown)
S Russell and D Randle (Defendant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Peter Murphy Criminal Law (Defendant)
File Number(s): 2011/133776
JUDGMENT
The accused has pleaded "not guilty" to the charge that he murdered his father, Ravi Ravindran, on 23rd April 2011 at Medlow Bath in the State of New South Wales.
The Crown alleges that the deceased died as a result of the combined effect of a traumatic brain injury, a compressive neck injury, and certain fractures to the bony and cartilaginous structure of the throat and neck. It is said that the head injury was inflicted by severe blunt force. The throat injuries are more complex in origin. They are said to have been inflicted by a combination of ligature strangulation and the application of blunt force.
It is the Crown case that the accused inflicted these injuries on his father by striking him with a baseball bat on his head and throat, and by strangling him with a rope ligature, fashioned by the accused for that purpose.
In opening his case, the learned Crown Prosecutor said (2.36-40T); (2.46-3.4t):
...the Crown case will be that the injuries sustained to the neck of the deceased were not caused by him hanging himself, but were rather caused by the accused strangling him with the rope that was found around his neck.
...
The Crown case will be that it was the accused who caused the head injuries to the deceased by hitting him with a baseball bat. It will be the Crown case that the accused caused the neck injuries to the deceased, and that your Honour will ultimately reject the suggestion that the deceased took his own life. It will be the Crown case that the deceased died as a result of a combination of the head and neck injuries which were caused by the accused. The Crown case will be that the accused caused those injuries intending at the very least to inflict really serious harm, or to kill the deceased.
The accused argues that, except for his admissions, the Crown case is based entirely upon circumstantial evidence, requiring the Crown to "negate any reasonable possibility consistent with [the accused's] innocence beyond reasonable doubt". The accused says the Crown evidence "cannot exclude the reasonable possibility that the deceased hung himself, and was subsequently struck by [the accused] who, in the agony of the moment, having just discovered his father hanging, believed him to be already dead". This posited "reasonable possibility" is described as "not an implausible one in the context of the special and somewhat unique relationship that had developed between [him] and his father" (3.10-4.20T).
It is important to bear firmly in mind, therefore, that the accused admits having struck his father with a baseball bat. He denies strangling him. The accused accepts that the blows he struck caused his father's death in the sense of significantly contributing to it. He denies that they were struck with the intention of killing, or inflicting really serious injury upon, his father because when they were struck, the accused erroneously believed his father was already dead, having hanged himself. I will explain how this could be in more detail as I give my decision. But for the purpose of the clear definition of the issues at the outset, I record now that the Crown accept (374.18 - 21T) that if, after considering and weighing all of the circumstances established by the evidence, I am of a mind that the evidence leaves open as a rational and reasonable possibility that the deceased did attempt suicide by hanging on the morning of 23rd April 2011; that the accused came upon him in that suspended state; and that subsequently he struck him with the baseball bat erroneously believing him dead, then those matters together support an inference consistent with innocence entitling the accused to an acquittal.
General legal principles
For reasons given on 29th July 2013, I made an order for trial by judge alone, as both the accused and the Crown agreed to this mode of trial.
My judgment is required by law to include a statement of the principles of law which I will apply, and the findings of fact on which I will rely in coming to my decision. To the extent to which the law would require a specific warning to be given to a jury in this case, I am required to express it in these reasons and take the warning into account in deciding the matter.
The starting point, and fundamental rule, is that the accused is presumed to be innocent of the crime with which he stands charged unless the evidence led before me in this courtroom satisfies me to the appropriate standard that he is guilty of the crime charged. This burden of proving the guilt of the accused rests with the Crown. There is no burden whatsoever upon the accused.
The Crown must establish the guilt of the accused to my actual satisfaction beyond reasonable doubt. It is not enough for the Crown to show a mere suspicion of guilt, or even to show that the accused is probably guilty. The Crown must go further and prove guilt beyond reasonable doubt. If there is any reasonable possibility that the accused is not guilty, I must acquit him.
Unless otherwise stated in the course of these reasons, when I use words or expressions such as "proved", or "I am satisfied", or "I accept", I mean I am actually satisfied of the matter stated beyond reasonable doubt.
I acknowledge "the criminal standard of proof is a designedly exacting standard": Douglass v The Queen [2012] HCA 34; 290 ALR 699 at [47].
I bear in mind that I have the responsibility of deciding what are the real issues in this particular case. It is important for me to state only so much of the relevant law as will guide me to a decision on those real issues: Alford v Magee (1952) 85 CLR 437 at 466.
The elements of murder
The elements of murder are stated in s18 Crimes Act 1900 (NSW). Relevantly for the present case the prosecution must prove beyond reasonable doubt that the acts of the accused - in this case there must be more than one - namely striking the deceased with a baseball bat or strangling him with a ligature, or both, caused the death of the deceased, and those acts were done with intent to kill or inflict grievous bodily harm upon the deceased.
In the circumstances of the present case, the crime of murder has been committed by the accused if, and only if, the Crown has established beyond reasonable doubt each of the following matters:
(a) The relevant acts of the accused were deliberate in the sense of being voluntary as opposed to a spontaneous unintended reflex action. There is no question that the admitted acts of the accused were deliberate in this sense. He has, however, denied strangling his father. If I am satisfied that he did so there could be no question that this act too was deliberate.
(b) The acts of the accused must have caused the death of the deceased. There may be an issue about the precise cause of death. It is enough if I am satisfied as a matter of fact that the acts of the accused are a substantial or significant cause of the death of the deceased. This is not a philosophical or scientific question, although clearly enough in this case the decision must be informed by reference to the scientific evidence provided by the forensic pathologists. The law requires me to decide this question by applying my common sense, at the same time fully appreciating that the purpose of the inquiry is the attribution of legal responsibility in a criminal matter of the most serious kind. The acts of the accused need not be the sole cause of death provided they contributed significantly to it. It may be apposite in this case to bear in mind that the acts of the accused need not initiate the process of death if they accelerate it significantly or substantially (R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 at [69]). As I have said before, the accused admits striking his father with the baseball bat more than once about his head and elsewhere on his body. He accepts that these blows caused traumatic brain injury, and some of the fractures to the structure of his father's voice box. He also accepts that these injuries, at least in combination, significantly contributed to his father's death. He denies strangling him and accordingly if the compression of the arteries supplying blood to his father's brain has contributed to death, the prosecution must attribute this cause to the acts of the accused beyond reasonable doubt.
(c) The third matter is that the acts of the accused causing death were done with an intention to kill or inflict really serious physical injury on the deceased. In the present case, this question is not affected by any consideration of the accused's intoxication. There is no evidence other than that he was sober at the time of the commission of his acts. Nor does any issue arise about provocation or substantial impairment by abnormality of mind. Self-defence is not an issue. Each of these four matters may be put completely to one side.
As the mental element of the offence is a critical issue in this case, I remind myself that the Crown must prove that the accused actually held the necessary specific intent I have described. This relates to his subjective state of mind. This is not decided by a consideration of what a reasonable, ordinary, or prudent person ought to have known, appreciated or understood in the circumstances. Such matters may have some relevance to a consideration of the circumstances of the case. But the ultimate question - the existence of the necessary mental element of the offence that is to be proved by the prosecution beyond reasonable doubt - relates to the accused's subjective state of mind, what was actually in his mind at the time.
I remind myself, as I would a jury, that intent and intention are very familiar words. In this legal context they carry their ordinary everyday meaning. A person's intention may be inferred or concluded from the circumstances in which the death occurred, and from the conduct of the accused person before, at the time of, or after he did the specific act, or acts, which caused the death of the deceased. In some cases, a person's acts may themselves provide the most convincing evidence of his intention at the time. Where a specific consequence is the obvious and inevitable outcome of a person's act, and where the person deliberately does that act, it may be inferred readily that he did that act with the intention of bringing about that outcome. This is not to say that I start from the premise that every person should be taken as intending the natural consequences of his or her acts. There is no presumption to this effect. The Crown must prove beyond reasonable doubt that the purpose of the accused, at the time he struck his father, was to kill him or to inflict really serious physical harm.
Beyond reasonable doubt in a circumstantial case
Counsel are agreed that the Crown case relies upon "circumstantial evidence". In such cases it is customary to amplify the rule that the prosecution must prove it's case beyond reasonable doubt by emphasising that "guilt should not only be a rational inference but should be the only rational inference that can be drawn from the circumstances.": Shepherd v The Queen [1990] HCA 56; 170 CLR 573 at 578 per Dawson J. To express the same idea another way, I "cannot be satisfied beyond a reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances": R v Hillier [2007] HCA 13; 228 CLR 618 at [46].
In Hillier, Gummow, Hayne and Crennan JJ stated (at [46]) a general rule that "[i]t is of critical importance to recognise... that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence". Their Honours continued:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But.... a circumstantial case [is not] to be considered piecemeal.
In Shepherd's case, Dawson J said at 579-580:
As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
His Honour went on to state (at 585):
Of course... if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.
Counsel are at issue about whether it is incumbent on the prosecution in the circumstances of the present case to prove beyond reasonable doubt that the deceased did not attempt to hang himself on the morning of 23rd April 2011. Mr. Russell and Mr. Randle for the accused say that establishment of this negative proposition is "an indispensable, intermediate step in the reasoning process towards an inference of guilt". The Crown says not. Counsel's arguments have been fully set out in writing. Those submissions are with the papers and it is unnecessary for me to set them out in this judgment to record them. I will therefore confine myself to my reasons for deciding that the Crown position is to be preferred.
In Davidson v R [2009] NSWCCA 150; 75 NSWLR 150 at 165 [74] Simpson J (Spigelman CJ and James J agreeing) said that an intermediate fact will be "indispensable" where the absence of evidence of that fact means there is no fit case to go to a jury. In his separate reasons, Spigelman CJ said at 152[8] that in a case "where there are numerous separate facts, of varying degrees of probative force, it could very well be confusing" to give a Shepherd direction. Applying these tests, the exclusion of the reasonable possibility that the deceased attempted suicide by hanging is not an indispensable, intermediate step in the reasoning process towards an inference of guilt.
Naturally, I accept it is significant to consider that the Crown opened by positively asserting that the deceased did not attempt to hang himself. But the question of whether the accused did attempt suicide by hanging is only one of a number of circumstances, if established by the evidence, which may leave open an inference consistent with innocence. For instance, on the basis of the evidence of the pathologists (which is largely not in dispute) it would be necessary to add to that fact - if it be a circumstance so established - other facts, including that the hanging had not progressed beyond a stage where the deceased was unconscious but alive; he had ceased jerking, and was not breathing; was manoeuvred by the accused down from the suspension point onto the bed; and then was not obviously exhibiting signs of life discernible by the accused, before concluding that a rational and reasonable inference is open which is inconsistent with the inference of guilt contended for by the Crown.
None of this should be read in any way as suggesting that any onus of proof lies anywhere other than with the prosecution, but the multiplicity of basic facts relevant to the question of intention demonstrates that the decision in the present case can only be made by considering and weighing all of the circumstances established by the evidence. Only then can I decide whether the Crown has excluded an inference consistent with the innocence of the accused in which the evidence that the deceased attempted to commit suicide by hanging plays a material part. The exclusion of an unsuccessful attempted suicide alone is then not an indispensable, intermediate step in the Crown case. That question remains, however, highly relevant.
Having so decided, I complete my directions in relation to the proper inferential reasoning process in a circumstantial case by reference to the decision of Brian Martin AJ in Western Australia v Rayney (No. 3) [2012] WASC 404 at [26] - [30].
The State did not present an eyewitness to the death of the deceased. In order to prove objective facts from which the State contended I should be satisfied that the accused is guilty of wilful murder or manslaughter, the State relied upon evidence of surrounding circumstances commonly known as circumstantial evidence.
Like direct evidence, circumstantial evidence can be good, bad or indifferent. I am required to decide what facts I find are proven by the evidence and then to determine what inference or inferences I am prepared to draw, and to draw beyond reasonable doubt, from the proven facts. I am required to consider all of the proven facts together and to determine whether those facts in their entirety leave a reasonable doubt or lead me to a conclusion beyond reasonable doubt that the accused is guilty of either wilful murder or manslaughter.
The drawing of inferences from proven facts is different from speculation. There is no room in the criminal court for speculation or speculative theories. Inferences can only be drawn if facts proven by the evidence properly support the drawing of the inferences.
The reliance by the State on circumstantial evidence requires that I consider the possibility that the proven facts do not necessarily point to guilt. A verdict of guilty cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty. Guilt must not only be a rational inference, but it must be the only rational inference that the proven facts enable me to draw. This principle and the approach to circumstantial evidence was described by Dixon CJ in Martin v Osborne (1936) 55 CLR 367 in the following terms:
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.
In the context of circumstantial evidence, it is essential to apply strictly the burden of proof. It would be entirely inappropriate to start with a presumption of guilt and then consider whether the evidence is consistent with that view. This is a process commonly adopted in everyday life, but it must be avoided in the criminal court. The accused is presumed to be innocent unless the evidence positively proves guilt beyond reasonable doubt.
The existence of a rational or a reasonable hypothesis founded in the evidence consistent with innocence means that the Crown has failed to discharge the designedly exacting onus lying upon it. The existence of such a hypothesis necessarily leaves, at the conclusion of the case, an operative doubt which requires the acquittal of the accused. It is not necessary that I would actually infer the subject matter of the hypothesis in fact occurred before making allowance for its reasonable possibility: R v McIntyre [2000] NSWCCA 6; 111 A Crim R 211 at [31] - [34]. The adjectives "rational" and "reasonable" exclude that which is far-fetched or fanciful. They also exclude what is purely speculative. To be rational or reasonable, the hypothesis must have a foundation in the established circumstances.
Alternative verdict
In the case of murder, the tribunal of fact may have to consider whether an alternative verdict of manslaughter is available on the evidence. The alternative need only be considered when such a case is viable: R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [75]. Where manslaughter is "viable" on the evidence, it would be an error of law for me not to consider that alternative, regardless of whether either or both parties have submitted that I should. Here the Crown argues an alternative verdict of guilty of manslaughter may be viable. The defence, on the other hand, submit if I am not satisfied of murder, I should acquit, and it is understandable that the accused should adopt this position.
The Crown said the available alternative is manslaughter by unlawful and dangerous act, rather than by criminal negligence. I accept that no available view of the proven facts suggests a possible case of involuntary manslaughter by criminal negligence: Burns v The Queen [2012] HCA 35; 246 CLR 334 at [19], [23], [97]. Generally the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may arise out of the relationship of parent and child, or by assumption of responsibility. Typically the relevant duty is that owed by a parent to care for, protect and nurture an infant, dependent child. These are not merely moral obligations, but are supported by statute: Hoffmann v Boland [2013] NSWCA 158 at [14] - [37] per Basten JA. In the common law of negligence, the moral duties of parents are not enforceable by an action for damages. In my judgment, neither the criminal law per se, nor statute, imposes an anterior duty of care on an adult child, owed to a healthy independent parent. It may be otherwise in the case of an infirm parent whose care has been assumed by the adult child, but that is not this case.
The elements of manslaughter by unlawful and dangerous act are as follows:
(1) That the hitting of the deceased with a baseball bat were acts of the accused which caused the death of the deceased;
(2) That those acts were deliberate;
(3) That those acts were unlawful and dangerous.
An act is unlawful if it involves a deliberate application of force to another person without that person's consent.
An act is dangerous if it is such that a reasonable person in the position of the accused ought to have realised that by that act the deceased was being exposed to an appreciable risk of serious injury. It is clear from this formulation that the question of dangerousness must be decided by the application of an objective test, namely, whether a reasonable person in the position of the accused, performing the very act which he performed, i.e. striking the deceased with a baseball bat, would have realised that he was exposing his father to an appreciable risk of serious injury. It is not sufficient to show that there was a risk of some harm resulting, although not serious harm.
Unlike the case of murder, the Crown does not have to establish that the act of the accused was done with any particular intention to injure. The offence of manslaughter is complete even if no injury was intended by the accused and even if the accused had not actually realised that he was exposing the deceased to an appreciable risk of serious injury. As I have said, the question is an objective one of whether 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. As an intention to injure is not a necessary element of the offence, it follows that it would be no answer for the accused to say that the death of his father was unexpected by the accused, if the essential elements are established beyond reasonable doubt.
Expert evidence
The Crown case depends upon inferences drawn from expert evidence. The value of expert opinion is very much dependent upon the reliability and accuracy of the material which the expert used to reach his or her opinion. It is necessary that there be a sufficient correlation between the facts as proved and the facts assumed by the expert for the purpose of expressing the opinion before weight may be accorded to expert opinion. Its usefulness in resolving the issues in the case depends upon its weight. I bear in mind that there has been no challenge by either party which questions that the opinions proffered by each expert is wholly or substantially based upon specialised knowledge the expert actually holds (s79 Evidence Act 1995 (NSW)).
Statements by the accused
The accused has spoken of the events leading up to, and of, the morning of 23rd April 2011. He volunteered an account to the 000 operator, whom he called at about 7:25 am on the morning of his father's death. He also voluntarily answered questions asked of him about the circumstances of his father's death by a Mr. Mortensen, a senior ambulance paramedic practitioner. After his arrest he volunteered to a Const. Marks "I did not kill my father". He gave evidence in his own defence before me. His voluntary statements against interest are admissions which may be used as evidence in the case.
However, when cautioned by Const. White (the Custody Manager at the police station) he, on legal advice, chose not to answer questions put to him. That is, he exercised the right to silence that all members of our community in common enjoy. I will not use his silence at that time against him in any way. I will draw no inference at all from that matter and certainly no inference unfavourable to the accused (s89 Evidence Act, 1995). The purpose of the police caution is to facilitate an arrested person being in a position to exercise the right to silence.
I interpolate that the various accounts of the accused from the beginning have been consistent with one another.
Legal significance of motive
Counsel put various arguments to me about whether the accused had a motive to kill his father. Motive, of course, is not a legal ingredient of the crime with which the accused is charged, or indeed of any other offence. The Crown says, nonetheless, the accused had a motive for killing his father, which arose out of an argument between them the previous day. The Crown says this is a circumstance I should take into account in determining whether the accused is guilty of murdering his father.
Counsel for the accused, however, argue that there is no evidence of a motive sufficient to support an allegation of murder against the accused. The argument between him and his father the previous day was volunteered by the accused at the outset. As the best evidence is that the deceased died at around 7:00 am on 23rd April 2011, there is a substantial difficulty with any suggestion that the accused murdered the deceased "in the heat of the moment", according to the argument. Counsel for the accused do not urge upon me that there is "positive proof of the absence of motive", but submit that the absence of any apparent real motive should be taken as evidence that the accused "did not commit [the] crime" (accused's submissions [27] - [30]; DeGruchy v. The Queen [2002] HCA 33; 211 CLR 85 at [28]).
There can be no doubt that in a case which depends upon circumstantial evidence, motive (where proved) is one circumstance that may be taken into account with all the other established circumstances in deciding whether the prosecution has proved its case beyond reasonable doubt: Plomp v The Queen (1963) 110 CLR 234 at 242. However I add the warning that it may be "extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused". That, of course, is not this case.
The accused as a witness
As the accused has chosen to give evidence, it should be recorded that this consideration does not alter the burden of proof. In particular, the accused does not have to prove that his version is true. Quite the contrary, the Crown has to satisfy me that the account given by the accused should not be accepted as a version of events that could reasonably be true.
At the same time, I must assess his evidence in the same way as that of other witnesses. It is not necessary that I either accept all of it, or reject the whole of it. I am entitled to accept some, and reject other, parts of it according to my evaluation of it in context in the whole of the evidence given at the trial.
The accused is entitled to rely upon the earlier accounts volunteered to the 000 operator, Mr. Mortensen and Const. Marks. He is not required to prove that those earlier accounts are true, but he is entitled to rely upon the overall consistency of his various accounts, one with the other, to persuade me to accept his evidence. If I accept his account, I must acquit him of murder because in that event I could not be satisfied beyond reasonable doubt that the Crown has established the essential element in issue in this case, that of intention to kill or really seriously injure.
I repeat that the accused has no obligation to persuade me of anything. That is the legal obligation of the Crown. However, it is not necessary for me to believe the accused before he is entitled to an acquittal. I must acquit the accused if I find that there is a reasonable possibility that the version presented by the defence is true because in that event the Crown will have failed in it's obligation to persuade me of the guilt of the accused beyond reasonable doubt.
Character evidence
In assessing the Crown case, I will bear in mind the unchallenged evidence of Ms. Heggarty, Ms. Lekkas and Ms. Phillips that the accused is a person of good character. Indeed, the Crown concedes that I should make that finding (Crown submissions, page 9). This concession means that the good character of the accused is an established circumstance weighing in his favour. It is relevant in two ways. First, a person of good character is unlikely to have committed the serious offence charged by the Crown. Secondly, a person of good character is less likely to lie or give a false account, even in matters where his or her vital, personal interests are at stake. However, good character is not a defence nor can it be decisive. As I have said, it is a matter to be weighed in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused.
With these legal considerations at the front of my mind, I turn then to consider the evidence. I do so bearing in mind that the central issue is the element of intention to commit murder, and that the decision about whether the Crown has proved its case beyond reasonable doubt depends upon whether all the circumstances established by the evidence admit of only one rational, or reasonable, inference; that is, that the accused is guilty of murder or, in the alternative, manslaughter.
Basic narrative
Much of the evidence is not in dispute. Accordingly many of the facts are not disputed. It is not in dispute that the deceased died in his bedroom at the home he shared with his son at Medlow Bath in the Blue Mountains. It is not in dispute that the accused was present in the home at the time his father died. Indeed he may have been with his father when he died, but not necessarily. It is not in dispute, as I have already indicated, that the accused struck his father forcibly more than once with a baseball bat which his father kept in his bedroom to discourage intruders. It is not in dispute that when those blows were struck by the accused, his father was still alive. It is not in dispute that the father survived those blows with a beating heart for a period of time after they were struck, probably for not less than ten minutes. According to Dr. M.E. Buckland, a neuropathologist, widely cited medical research suggests a survival time of at least 35 minutes. But in evidence Dr. Buckland modified this time downward significantly as I will detail later.
It is not in dispute that the accused delayed calling 000 for help for ten or fifteen minutes. During this time he left his father's side and his father may have expired during this interval.
Mr. Mortensen arrived at the scene at 7:39am and commenced to make observations of the deceased at 7:41am. At that time the deceased was centrally cyanosed, indicating "there is no oxygen moving around the body" (82.25T). The onset of cyanosis can be very rapid depending upon how "oxygenated the person was prior to their cardiac arrest" (85.5T). It can occur in the space of a couple of minutes.
It is not in dispute that during the interval before the ambulance was called, the accused washed his father's blood from his hands with methylated spirits, and washed the blood from the jacket he was wearing.
It is not disputed that some years before his death, the deceased confided to a then close personal friend, Mr. Michael Franklin, in the course of a deep and philosophical conversation about the deceased's cultural values, with words to following effect (310.37-48T):
He basically said if ever he lost Josh's respect that life wouldn't be worth living, that he would, he basically said he would suicide if he lost Joshua's respect which just stunned me and I told him he couldn't do that and leave the boy by himself, you know, I disagreed with that idea. I could not comprehend that whole idea, you know, he sort of lost me a bit there.
The veracity of this account was not challenged in cross-examination. When he was asked whether "people will sometimes say things like that but not really mean it" he responded, "No, Ravi meant it" (313.5T). I was impressed with the firmness of this response.
It is not disputed that on 22nd April 2011 the accused and the deceased carried on a running argument. Indeed, the content of the argument, as I have said, is relied upon by the Crown as evidence of motive. It is argued the accused became so angry that he decided to injure his father severely. The deceased said the accused was "like his mother". A cutting insult in the context of their relationship (236.40T; 258.30-.45T). The deceased also accused his son of being ungrateful in most offensive language (237.15T; 262.25-.50T). In the course of the argument, the deceased said:
You've become so western in your ways of speaking. No Indian boy would dare speak to his father like this. You have completely lost respect for me and this family (237.5T; 258.45 - 259.5T).
It is not in dispute, at least from the time that the original ambulance officers arrived on the scene "at around 7:35am" (69.20T), that within the deceased's bedroom, in a location depicted in Exhibit "A", a kitchen chair was positioned under an exposed beam through which a coach bolt had been fitted protruding from either side of the beam. An ottoman had been placed on the seat of the chair overhanging one edge of it. These matters are depicted in photographs taken by Snr. Const. Venables, a crime scene officer, who arrived at the scene at 1:40pm on 23rd April 2011: Exhibit "C", photographs 79 - 84. Photograph 56 shows an identical chair against a wall of the accused's bedroom. As part of her duties, Snr. Const. Venables undertook a number of measurements inside the premises including the bedroom of the deceased. She was present at the post-mortem examination of the deceased by Associate Professor Orde who measured the deceased. She also measured the rope found tied around the neck of the deceased. These measurements were used by her to prepare a sketch (Exhibit "B"), which is essentially a diagrammatic reconstruction which demonstrates that it is possible for the deceased to have attempted to hang himself from the protruding coach bolt using the chair and ottoman as a makeshift scaffold.
Ms. Venables had the custody of certain physical exhibits including the section of beam removed from the premises (Exhibit "D") and the rope taken from around the deceased's neck (Exhibit "E"). The rope has a metal hook at the end of it (photograph 48 of Exhibit "G") which is somewhat open. Snr. Const. Venables was involved in some mechanical tests carried out in relation to these exhibits. She found that with some minor manipulation of the hook upwards it could quite easily slip off the protruding nut-end of the coach bolt (46.12-.25T). This evidence is consistent with my own inspection and comparison of these exhibits (367.15-.30T).
From the inspection of the crime scene by Snr. Const. Venables, it is not disputed that the rope found around the neck of the deceased was probably cut from a hammock stored on the bottom shelf of a cupboard in the laundry of the premises.
Whilst arguing that I would be satisfied on the whole of the evidence that the deceased did not attempt suicide by hanging on the morning of 23rd April 2011, the Crown conceded that "the totality of the medical evidence allows for the possibility of hanging, albeit for a relatively brief period". I will return to the medical evidence.
I have not sought to list all of the factual matters not in dispute between the parties. Given that the case depends upon an inferential reasoning process, the real dispute between the prosecution and defence is about what inferences I should properly draw from the evidence. The matters I have listed seem to be potentially significant to the resolution of the disputed questions of fact and I will treat them as part of the circumstances established by the evidence to be considered and weighed in deciding whether no other explanation than guilt is reasonably compatible with all of the circumstances, or whether there is an inference consistent with innocence reasonably open on the evidence.
The medical evidence
As the medical evidence came out at the trial, there is no material dispute amongst the pathologists about what the autopsy findings demonstrate. Nor is there any sharp difference between them about the conclusions that may reasonably be expressed within their area of specialised knowledge flowing from those findings. But it is necessary to detail some of that evidence.
Both Associate Professor Matthew Orde and Professor Stephen Cordner, forensic pathologists by profession, were somewhat diffident about offering an opinion as to the likely time of death. Acknowledging that, I accept Associate Professor Orde's estimate of around 7:00am. He said (167.15T):
I would certainly favour the morning being the time when he died rather than the preceding evening.
Associate Professor Orde attended the premises in the evening of 23rd April 2011. The body of the deceased remained in situ. At 6:52pm he recorded the hepatic temperature of he deceased as 28.9 degrees Celsius. The technique employed involves making an incision in the upper abdomen to place the thermometer in the liver for the purpose of ascertaining the core, or true, temperature (165.45T). It may be assumed that the healthful temperature is 37 degrees Celsius. Associate Professor Orde said (166.40T):
...he has dropped 8 degrees Celsius. The old rule of thumb is that when a person dies, there is a lag of a couple of hours, or thereabouts, where the body does not lose temperature and, thereafter, the rate decreases about 1 degree per hour. So using... that formula, one would think that the person would be there for approximately 10 hours, give or take, plus or minus, several hours either side of that window.
Around 7 o'clock in the morning is accordingly within the margin of error.
Professor Cordner's report was admitted as Exhibit 2 and he was not required for cross-examination. He deals with the time of death at pages 13 to 14. He accepts the probable accuracy of Associate Professor Orde's reading. His methodology involved using the Henssge nomogram (referred to by Associate Professor Orde at (166.10T)). The result is remarkably similar to that produced by Associate Professor Orde's "old rule of thumb". The nomogram produced a range between 5:00am and 10:30am on 23rd April 2011, with a reliability of 95 per cent.
The conclusion expressed by these experts is different from that which may be suggested by some of the evidence of Mr. Mortensen. I think it fair to say that Mr. Mortensen was concerned by what he saw and heard at the scene. It was him whom initiated contact with the police. Amongst other matters he noticed what appeared to be blood on the ottoman balanced on the seat of the chair, which he described as still wet in appearance. It is convenient to say now that Mr. Paul Weldon, a graduate scientist employed by the NSW Police force, took a swab of that matter (Exhibit "L"). The red stain tested negative for the presence of blood (123.5T). According to the evidence of Mr. Clinton Cochrane, a forensic biologist employed by the Department of Health, the swab contained a complex mixture of DNA from more than one individual and the profiles of individual contributors could not be determined (Exhibit "P"). I record here that the Crown says, in any event, that the DNA evidence really does not assist me in coming to a firm conclusion about the actual facts (362.25-363.20T).
One of the things that Mr. Mortensen had heard at the scene, in answer to a question he had asked of his colleagues, was that the accused had last seen his father alive between 10 and 11 o'clock the previous evening. I interpolate that this answer makes sense if one accepts that when he next saw his father, in the morning, he was hanging from the beam and the accused believed him dead. But Mr. Mortensen's observations of the scene raised a question in his mind about when the deceased died. From Mr. Russell's cross-examination of him, it is quite clear that he misunderstood the import of the accused's account because he formed the view that the accused was implying that the hanging took place late on 22nd April 2011. Had that been the case Mr Mortensen would have expected to see much more pronounced ligature marks (103.20-.30T). Moreover, I infer he would have expected a protruding tongue, a black not merely bluish face, and a cold body (96.35-.52T). In fact, the abdomen of the deceased felt warm when touched with the back of his gloved hand.
In these circumstances, he directed one of his colleagues to take the temperature of the deceased's left eardrum. A reading of 30.5 degrees Celsius was obtained. According to Professor Cordner, that reading at that time, again employing the Henssge nomogram, suggests a time of death between 7:00pm and 12:15am the night before. Professor Cordner suspects the ambulance officer's reading is incorrect.
Mr. Harjit Shergill, who was unavailable to give evidence before me, took the reading, and Mr. Mortensen conceded that the "tympanic thermometer can be a little bit fickle". He agreed "it may have some error factor" (104.25T).
I think there was an error and I regard the evidence of Associate Professor Orde and Professor Cordner preferable in this regard, even allowing for their diffidence.
Associate Professor Orde said that he was somewhat inclined to favour the contemporaneous readings of experienced ambulance officers. But as Mr. Mortensen did not take the reading himself, and given the concessions he made about a margin for error, I am not persuaded I should accept the accuracy of this evidence, notwithstanding that Mr. Mortensen was a generally impressive witness.
Moreover, a time of death between 7:00am and 7:30am accords better with the whole of the evidence. It is not the Crown case that the accused killed his father on 22nd April 2011. The reading obtained by Mr. Shergill is not consistent with the balance of Mr. Mortensen's observations suggesting the recent demise of the deceased.
The nature of the injuries
As I have said, Associate Professor Orde examined the body of the deceased at the scene and conducted an autopsy on 25th April 2011. He found that the deceased had suffered a severe head injury consisting of a large laceration to the scalp high on the right side of his head. The associated soft tissues were bruised, swollen and grazed. Beneath the site of the laceration were two underlying hairline fractures to the skull of some length. There were also fractures to the part of the skull forming the roofs of the eye sockets. There was evidence of brain injury consisting of bleeding over the right side underlying the probable site of impact and "some further subarachnoid haemorrhage swelling". There was a bruising type injury to the left-front part of the brain which Dr. Buckland, the neuropathologist, described as a contre-coup injury caused by the reactive movement of the brain striking the left, inside aspect of the skull in response to the force of the impact.
Associate Professor Orde is of the opinion that all of these head injuries appear to have been caused by one blow of significant force with an object like a baseball bat (148.30-.40T). I accept this evidence, which, in any event, is consistent with the admissions made by the accused to Mr. Mortensen on 23rd April 2011, and in his evidence before me (241.30-.40T).
Dr. Buckland diagnosed the complex of head injuries as a traumatic brain injury. But the particular relevance of his evidence is that the amount of bruising and contusions seen on the brain, which he inspected, establishes that the injuries to the brain were most likely sustained during life. For haemorrhaging to occur there has to be a beating heart (174.15-.40T). I accept this evidence. Moreover, his testing demonstrated axonal injury. In lay terms, Dr. Buckland described axons as the wiring of the brain. And he said that the relevant scientific literature demonstrates that signs of axonal injury are not evident except when a victim survives for a period after sustaining injury. I have already recorded that the literature suggests a survival time of 35 minutes. But Dr Buckland said, I infer from his clinical experience, that he was not particularly dogmatic about the survival time. He would accept ten to twenty minutes. The important consideration from his evidence is "that a person has to be alive when the injury occurred" (176.5-.25T).
Associate Professor Orde described a circumferential mark on the skin of the neck of the deceased. I will refer to this as the ligature mark. He observed it to be essentially horizontal, but sloping upwards slightly to the rear. There was no depression or furrowing of the skin. Above the ligature mark, in various places, were three discreet grazes. A microscopic examination of matter taken from underlying tissue of the neck suggested to Professor Orde evidence of an inflammation indicating the passage of time between infliction of injury and death. Professor Cordner expressed disagreement with this conclusion. He thought the appearance under a microscope was an artefact. Associate Professor Orde agreed with Professor Cordner that his own observations need not necessarily indicate the passage of time between injury and death. This is because, as Professor Cordner pointed out, it is not possible to distinguish between a genuine suicidal hanging and a hanging of a body soon after death by reference to the appearance of the ligature mark (Exhibit "2" page 17).
I observe that Associate Professor Orde's original position weighed in favour of the accused. However, nothing much turns on this matter.
More significant were the various fractures to the bony and cartilaginous components of the larynx. Associate Professor Orde retained the larynx and connected bones for examination by x-ray and in a laboratory. The internal neck injuries included fractures to the left greater horn of the hyoid bone at the top of the voice box; left superior horn of the thyroid cartilage below the hyoid bone in the upper voice box; fractured right thyroid cartilage lamina in the lower or mid voice box; and fractured posterior cricoid cartilage, which is below the voice box, connecting the larynx to the wind pipe. All of these fractures were associated with what Associate Professor Orde called "quite abundant fresh bleeding" (152.15T), which establishes that the deceased had a beating heart when the fractures were sustained. Professor Cordner said the following about this collection of injuries: (Exhibit "2" page 10):
The sum total of these injuries constitutes, effectively, a crushed larynx. This is the sort of injury that might occur in a serious car crash (usually along with other serious head and/or chest injuries). I have not seen this constellation and severity of injuries all occurring in a domestic suicidal hanging, and if the circumstances were presented as such, I would be suggesting to investigators that there will probably be other factors at work.
Professor Cordner considered that a blow from a baseball bat could explain the fractured cricoid and thyroid wing.
Associate Professor Orde found zones of pinpoint bleeding within the linings of the eyes and over the skin of the face. Referred to as petechial haemorrhages, they can be a post-mortem development, but they are also caused by compression of veins in the neck such as occurs during suicidal hanging or strangulation, and this is the preferred explanation in the present setting: (152.35T; Exhibit "2" page 6). Petechial haemorrhages occur in about one quarter of cases of "full suspension hangings" (155.5T).
Associate Professor Orde regarded this as "relatively rare". I do not agree with that descriptor. To me, 25 per cent of cases seems relatively frequent.
As I have indicated, Associate Professor Orde and Professor Cordner are in agreement that not all of the fractures to the voice box can be accounted for by hanging, particularly the fractures to the mid and lower parts of the voice box. Fractures to the hyoid bone and the wing of the thyroid cartilage, again, occur in around 25 per cent of cases of hanging (155.10T). But the fractures to the lamina of the thyroid and the cricoid cartilage were probably caused by something else, and the application of force through a baseball bat is one possible means.
Associate Professor Orde said (156.5 -.10T):
I think that the extent and severity of injury to the cartilaginous and bony structures in the neck suggest at least in part the application of significant force to the neck region. Which makes me perhaps favour a firm application of an object or a blow. At least in part. But such an explanation would of course not account for everything I've seen, and I'm thinking particularly of the mark around the skin. So I suspect there has been a combination of injuries to the neck region, but it's difficult for me to tease out what those factors are likely to have been.
I understand Professor Cordner's opinion to be to the same effect (Exhibit "2" page 8; pp 10 - 11). Neither Associate Professor Orde nor Professor Cordner considered the ligature mark to be "typical" of hanging. Indeed, Associate Professor Orde did not think it typical of any particular method of infliction (154.35T). He made the observation that in most instances of hanging the body has been hanging for sometime after the moment of death and the majority of findings relate to injuries sustained after the moment of death (154.45T). Professor Cordner said the ligature mark "is clearly not lower down on the neck where homicidal ligature strangulation marks usually are, and it is higher on the neck where hanging ligature marks more commonly are" (Exhibit "2" page 5). However, he concluded that the position of the knot on the body of the deceased may have altered the dynamics of the formation of the mark. Moreover, the apparent brevity of any hanging event and the possibility that the deceased was actively interfering for some of the time "are sufficient unknowns for me to place less emphasis on the slope of the ligature" (Exhibit "2" page 26).
Cause of the demonstrable injuries
It is appropriate to point out at this stage that the pathologists agree that neither the physical findings nor their specialised knowledge cast any light upon the sequence of the infliction of the demonstrable injuries. I infer from this that, to the extent relevant, the sequence of infliction of injury needs to be established by other evidence, or not at all.
No serious question arises about the head and traumatic brain injury. It was undoubtedly inflicted by a single blow whilst the deceased was alive. Given his admissions, that blow was delivered by the accused with a baseball bat.
The external injuries to the neck, being the ligature mark and abrasions, were inflicted by means of the rope found around the neck of the deceased. The abrasions are attributable to the metal clasp around it. I understood Associate Professor Orde to have effectively excluded manual strangulation as the cause of these injuries. He did not see any specific marks to suggest manual strangulation. He did not however entirely exclude it as a possibility. But in my judgment the evidence supporting that conclusion is weak and the probability of it is accordingly low. I therefore exclude it as a possibility. I find that the petechial haemorrhages were caused by compression of the neck by means of the rope.
The constellation of fractures to the structure of the larynx presents some difficulty. Not all can be explained by either hanging or ligature strangulation. I acknowledge that fractures of the left horn of the hyoid bone and of the left superior horn of the thyroid cartilage "are injuries well recognised to occur in hanging" (Exhibit "2" page 8). To that extent they may also occur by means of ligature strangulation (Exhibit "2" pp 10 - 11). Professor Cordner recorded two cases of a fractured cricoid having occurred in suicidal hanging. But he excludes it as an injury associated with that method (Exhibit "2" page 11). I accept Associate Professor Orde's evidence, supported as it is by Professor Cordner, that the fractures to the mid and lower voice box are not attributable to either hanging or ligature strangulation.
This raises a question about whether any of these fractures are attributable to compression of the neck. As I have recounted, Professor Cordner refers to the injuries as a "crushed larynx". He has not seen such a constellation and severity of injuries in domestic suicidal hanging. It makes no sense to me to attribute some of these fractures to neck compression and others to a blow with a baseball bat when the latter mechanism can clearly account for the totality of injuries fitting the description of crushed larynx. Applying Ockham's razor, I am satisfied that all of the fractures are attributable to a blow inflicted by the accused with the baseball bat. The accused did not specifically admit striking the deceased on the neck. But his evidence suggests more than one blow to the general head region and I infer a second blow was delivered to the neck. The accused said that the deceased was lying on his left side when he struck him. It is not clear therefore how fractures to the left side of the structure of the voice box may have been inflicted. However Professor Cordner commented (Exhibit "2" page 11):
The application of the offending force is generally over a wide area, the skin and the subcutaneous tissue are relatively elastic and therefore can conform themselves rapidly to the offending force, whereas the underlying liver is less elastic, of a more finite size and volume, and therefore more vulnerable to the offending force.
By this analogy he propounded the premise that "as a general proposition ... deep injuries can be caused without obvious superficial damage being apparent". The matter may not be entirely free from doubt, but applying the approach of Dawson J in Shepherd I find this to be the most likely cause of the whole of the injuries to the voice box.
Does the expert evidence exclude hanging?
It is convenient to answer now the question: does the expert evidence exclude hanging as opposed to ligature strangulation? As conceded by the Crown, the short answer is "no". In his evidence before me Associate Professor Orde agreed that hanging for a brief period was a possibility (154.50T). It is fair to say that his report to the coroner was a little different from the tenor of his evidence before me. He stated that "the pattern of neck injuries is considered highly atypical for ligature hanging", but are "very strongly suggestive of the neck having been injured ... quite possibly [by] some form of strangulation". As I have said, the tenor of this is much firmer than the views he expressed in evidence.
In the course of cross-examination he agreed that he may have been "swayed perhaps by things one is told" (159.5T). He also agreed that he expressed a view during the course of the autopsy that the fracture of the hyoid "could be hanging, however more likely strangulation" (160.5T). He also agreed that in his interim report to the Coroner he had written that the neck injuries were "suggestive [of] strangulation, rather than hanging (but cannot rule hanging out)".
During the course of the cross-examination he explained that, subject to the limited available evidence, "when someone hangs and is fully suspended they typically lapse into unconsciousness within a matter of seconds usually". Brain death occurs "after a few small number of minutes" (161.45-.50T). The opinion that the deceased was alive when he received the blows with the baseball bat is "predicated on the deceased having had a beating heart at the time that the injuries were sustained, not his brain function" (162.5T). He drew upon the analogy of a person who is decapitated whose "heart goes on beating for a significant time afterwards" (162.15). It was possible therefore that a person who is hanging "could be rendered unconscious, could subsequently show signs of cessation of brain function and some time later the heart might stop" (162.20T). By "cessation of brain function", I do not understand Associate Professor Orde to mean irreversible brain death. At the conclusion of the cross-examination he said (164.25T):
...yes, this could have been a partial, that is non lethal, hanging.
Professor Cordner addresses this question in appendix 3 to his report which analyses the available evidence. He reasoned that as some of the significant injuries were compatible with a hanging event (also with ligature strangulation), hanging is a reasonable possibility, but the evidence did not enable forensic pathology to distinguish with confidence between ligature strangulation and hanging in the circumstances. As the totality of all injuries could not be explained by a single cause, and the evidence favouring hanging is not clear cut, it is difficult to conclude that a hanging occurred. As I understand him, however, he would not, on the basis of his expertise, rule out a relatively brief hanging event.
On the basis of this body of evidence, the Crown concession was clearly properly made. But the question of whether this clear, scientific possibility that the deceased attempted suicide presents an insurmountable obstacle to the success of the Crown case depends upon, as I have already ruled, the consideration and weighing of all of the circumstances, which go beyond merely scientific evidence.
The cause of death
Associate Professor Orde and Professor Cordner agree that the most likely cause of death is a combination of all of the injuries inflicted. I understood Associate Professor Orde to be of the view that the deceased may have survived the traumatic brain injury had that been the only injury suffered, although he could not be certain about this (153.15T). He said he would err on the side of favouring the neck injuries as an important factor. Indeed, he gave the following evidence (153.45T):
Q. Taking the injuries to the neck in isolation, would they on their own have been capable of leading to death?
A. Yes, absolutely. And incumbent in that question I think was the suggestion that the injuries to the neck are - were part and parcel of one injurious event. Of course that may not have been the case. There may have been one, two, or more injuries to the neck region superimposed upon one another. But looking at the totality of injuries to the neck, certainly, they may well have brought about death.
Q. In relation to cases of compression of the neck, to put it neutrally, it is difficult is it not to sometimes find what the mechanism of death was?
A. Yes, I think it fair to say that [in] most instances we don't know. All we know is that people who have the neck compressed do die. So the inference is clearly there to be drawn. But as to how, it's difficult, the various theories as to how death could have been brought about, but most instances, we do not know, save to say that now it appears probable I think that the most significant factor in most neck compressive deaths would be the reduction of blood flow to the brain. So the compression of the arteries supplying blood to the brain would seem to be the most significant factor in most instances of lethal neck compression.
I also bear in mind the evidence I have recounted that loss of consciousness occurs within seconds of relevant neck compression and that brain injury occurs within a small number of minutes, whilst the heart may continue to beat for considerably longer.
Professor Cordner was in complete agreement with Associate Professor Orde that death was caused by the combined effects of the injuries. He said this was "[t]he only sensible conclusion" (Exhibit "2" page 24).
Leaving to one side the question of whether the accused used the rope to strangle his father, quite clearly, on the basis of this evidence, his admitted acts significantly contributed to his father's death.
The relationship between the father and the son
On the whole of the evidence before me I find that the deceased was a most difficult man. I accept the evidence of Dr. Matthew Large, a psychiatrist, that the deceased had a narcissistic personality disorder. Dr. Large described this (at 340.5-10T) in the following terms, as involving:
...proneness to rage, inflated idea of his own importance and his own ideas, a lack of ability to empathise with other people. As far as I can make out he had morbid jealousy which is strongly associated with narcissistic personality disorder.
He also said (340.25T):
I think that he, from my reading of him, is that he needed the support of his son to support his own ego. He needed his son to see him more favourably than other people to support his own ego (sic).
Dr. Large did not examine the deceased during his lifetime, but he was provided with a bundle of material (Exhibits "11" and "12"), some of which was in evidence before me. Other parts of it were in the form of statements of persons who gave oral evidence before me. I am satisfied that there is a sufficient correspondence between the facts assumed by Dr. Large and the evidence in the case to permit me to accord weight to his opinions.
Dr. Peter Clark was the deceased's treating general practitioner for a period before his death and treated him for chronic unresolved pain, which the deceased related to a workers' compensation injury in 1994. Dr. Clark described him as an assertive individual who had "a resolute intention to obtain compensation" for the injury. He was resistant to Dr. Clark's suggestions that he increase his hours of casual part-time relief work (56.20-.30T).
His old friend, Mr. Franklin, described the deceased as a very deep, philosophical person, "highly educated... very honourable and honest" (309.50T). In his view, the deceased had ideas that many people in the mainstream might not agree with. He was very dogmatic and would not change his mind (312.10-.20T). He described the deceased as controlling of his son and somewhat manipulative (313.30-.45T).
The mother of the accused, Ms. Anita Wood, gave evidence. She and the deceased had married in 1989 after what she described as a whirlwind romance. The marriage deteriorated over a number of years. She described him as violent, both before and after their marriage, resulting in her taking out apprehended violence orders against him. He was not violent to the accused. She left him more than once, and did so finally when their son, the only child of the marriage, was in his final year of primary school and aged 11 years and 6 months. She said of her former husband (319.20T):
He had been a very controlling man. I had been very frightened of him and he was very domineering and obviously the violence and threats of violence...
After the first separation however, the deceased became very depressed and demoralised over his separation from his family. It was this factor that led Ms. Wood to resume cohabitation with him for a time.
At the time of the second separation Ms. Wood took her son with her, but notwithstanding his relatively tender age, he simply refused to stay with her, and insisted on being returned to his father. Indeed he very stubbornly refused to have anything whatsoever to do with his mother by way of any form of contact. Apart from some surreptitious attendances by Ms. Wood to her son's school, she had no contact with him at all from about 2003 until after his arrest. This was the choice of the accused. I cannot help feeling that in acting in this way, the accused was under the influence of his father. In fact, at the age of 14 he wrote to his mother saying that he didn't want anything from her, that he didn't need her, that he loved his father, and that his father was his best friend (318.25T).
She formed the view that the deceased was manipulating the accused in his relationship with her. She agreed with the Crown Prosecutor that the deceased was a person prone to very firm views about philosophical things and the way in which people should lead their lives. Once he formed a view, he would not be dissuaded from it (320.10 - .20T). The deceased would cut off people as a friend if they disagreed with him. Ms. Wood described him as "a complex personality" (320.35T). I accept Ms. Wood's evidence unreservedly.
The accused was aged nineteen at the date of his father's death. He had done well in his Higher School Certificate and was a first year student at the University of Technology, Sydney. There he was undertaking a Bachelor of Medical Science, as a precursor - he hoped - to studying medicine. As I have stated, I had the benefit of three of his former teachers giving character evidence on his behalf, which is unchallenged by the Crown. The Crown concedes that the accused is otherwise a person of good character. I found each of Ms. Heggerty, Ms. Phillips and Ms. Lekkas to be very impressive witnesses. As they had known him throughout his high school years I formed the view that each of them was in a good position to know the accused and had a proper opportunity to form the views of his character that she expressed in evidence.
These witnesses described the accused as well groomed, courteous and polite. Ms. Phillips described him as "always respectful" (325.25T), getting on well with his peers and his teachers. He was never involved in trouble at school. He did not show aggression to anyone, but rather seemed a very peaceful person.
None of the witnesses knew of the precise allegations levelled against the accused, but on hearing in cross-examination of the acts admitted by the accused, each of them reiterated her belief in his character.
Of his relationship with his mother, the accused said (245.15T):
I had no contact with mum and I didn't intend to. I didn't see her. She was not part of my life.
His father was the only relative with whom he had any ongoing contact. He and his father were very close. His father meant everything to him. His father "was the number one person in [his] life at that stage" (252.25T).
Having had the advantage of seeing and hearing the accused give evidence, I formed the view that he is a very definite person who from the time he was a child of twelve determined that he wanted to be in control of his life and not have other people impose their decisions on him (252.35T). As I have said, at least in part, this was due to his father's influence, which I thought was not benign.
The accused confirmed what others had said about his father's intransigence (256.5T).
The accused was attending university in Sydney four days per week. He travelled by train from Medlow Bath, a round trip of about five hours per day (260.25T). He had formed the view that he wanted to move into a shared house with some friends from university, but he had yet to tell his father this.
I have already recounted the evidence of Mr. Franklin of the conversation he had with the deceased about suicide. Dr. Clark, the deceased's general practitioner, gave evidence that from what he knew of the deceased he was not a person he would regard as likely to commit suicide. Doubtless that topic had never come up during the deceased's consultations with him. And he also agreed that his experience of patients suiciding was limited to four patients over a long career of some decades. None of those persons had expressed any suicidal ideation to him.
Dr. Large was called to give evidence about suicide. It should be said that Dr. Large is actually a critic of established thinking on the assessment of suicide risk. His evidence is that "suicide itself is not a particularly common event" (333.40T). The rate among men in Australia is about 15 per 100,000 per annum. Notwithstanding the identification of risk factors by research in the field, it was his evidence that one "cannot meaningfully predict who will and will not suicide", and that a combination of risk factors does not produce a multiplier effect (333.40-334.10T). From his report (Exhibit "10"), some of the established risk factors, such as being male, middle aged and divorced, are so general as to be devoid of meaningful content (page 5). He agreed that the majority of people who have known risk factors do not suicide. His view is that professionals like himself are not able to predict in any useful way what people will do. His research indicated that the majority of suicides occur in so-called low risk people (338.40T). There is no connection between the expression of suicidal ideation and later suicide. In fact, anecdotally some patients under the ongoing care of a psychiatrist seem well when last seen before their suicide.
Dr. Large also gave evidence that only one-quarter of people who complete suicide write a suicide note (337.25T). It was his evidence that there is an aggressive component to suicide; that is to say, it is done to hurt the "person who[m] the suicide attempter is closest to" (337.45T). Persons with an abnormal personality disorder "have an increased risk of suicide compared to the risk of suicide among the general community" (Exhibit "10" page 5).
Dr. Large was of the view that the ideas expressed by the deceased to Mr. Franklin may provide an explanation as to why the deceased might have suicided at a time of conflict over his son wanting to leave home (Exhibit "1" page 6). At the conclusion of his report, he expressed the following opinion (Exhibit "10", page 6):
In my view, suicide on Mr. Ravindran's part is a plausible reaction to a major dispute with his son, given his risk factors for suicide, the close nature of the relationship between father and son, the importance Mr. Ravindran appears to have placed in the respect and obedience of his son and Mr. Ravindran's personality.
Dr. Large's evidence may be important at a number of levels. Once such level is the impossibility of predicting who might suicide and the generality of the identified risk factors. Another level is that with the benefit of hindsight, suicide by the deceased is explicable (plausible).
It should also be said that this evidence persuades me, as described by Mr. Russell in his opening, the relationship between the accused and the deceased was, if not "special and somewhat unique" (4.5T), at least "unusual" and in some important respects unhealthy. Both were stubborn, and determined to get their own way. In my view, however, the father was certainly manipulative and controlling and this aspect explains the surprising intransigence of the accused as a twelve year old towards his mother.
There is no suggestion in the evidence that the accused suffers from the significant abnormalities of personality affecting his father, notwithstanding that such matters, according to Dr. Large, may be congenital. That the deceased had inflated ideas of his own importance and ideas, a lack of ability to empathise with other people, and morbid jealousy makes attempted suicide plausible in the context of their argument of 22nd April 2011.
The events of 22nd April 2011
The only evidence about what happened on 22nd April 2011 is provided by the accused. However the Crown did not challenge its accuracy in general terms. Indeed, the Crown embraced it, not only as accurate, but also as providing a motive for murder.
During the week before 23rd April 2011, the accused was on mid-semester break. He had taken the opportunity to catch up with friends and stayed out late on three occasions, including Thursday 21st April. On Friday 22nd April he sensed his father was annoyed with him about this. Both were home during the day. The deceased worked on a casual or relief basis only. The deceased brought up the subject of gay marriage and expressed a strong view against it. The accused did not rise to the bait, but his father continued his argument until the accused responded, and they argued about the topic for a period of time not made clear by the evidence. I can accept that the topic may be divisive in some circumstances and that division may extend across the generations. Some older people may have a more conservative view than some young people.
The argument was unresolved, but later his father re-ignited the argument by saying (236.45T):
You're just like your mother, you just want to hold on to a point but you are just being stupid and immature
Being compared to his mother was one of the worst insults his father could offer (258.30T). The accused was deeply hurt by the comment to the point of anger. He responded (236.47T):
If anyone is being f***ing immature it's you. You're the first person to bitch about racism and your views now are no different to a racist.
His father was very angry and said:
You've become so western in your ways of speaking. No Indian boy would dare speak to his father like this. You have completely lost respect for me and this family.
The son retorted:
If being too western is telling you that you are acting like an
arsehole then I'm happy to be like that.
In the circumstances, it is perhaps both unfortunate and understandable, that the accused brought up the subject of leaving home. He said (237.10T):
Listen... I don't want to live with you if you are going to keep acting like this... what you demand is not respect it is obedience... No I don't want to live with you, I want to move out and have my independence.
The accused said that his father "really lost it". He started yelling and said (236.35 - 237.25T):
You ungrateful c**t, after everything that I've done for you, after everything that I've been through, you can't just leave me like this, you can't just walk away. You can't take advantage of my kindness after all these years.
His father's insult upset him, especially being called ungrateful. He understood that his father was attempting to make him feel guilty. He regarded it as an attempt by his father to control him, which he was attempting to rebel against (262.35 - 263.25T).
The atmosphere was tense between them and the conflict remained unresolved when the accused went to bed (266.25T).
Before his father went to bed he said to the accused (238.30T):
I'm going to make some changes and I am not going to tell you about them. You will know when they happen.
The accused explained this was something his father had said as a threat when he was younger. The implication then was that his father was threatening to take him "back" to India (238.30T; 365.5-.25T).
The events of 23rd April 2011
The events of this day, needless to say, are controversial between the parties. The Crown case is that, still resentful from the argument and the things that actually had been said, the accused awoke and went to his father's bedroom where he bashed his fully clothed, sleeping father with the baseball bat and then strangled him with the rope ligature inflicting all of the injuries I have earlier described.
The account of the accused is that he was awakened in the morning by a "bang" emanating from his father's room. He called out "Appa", Tamil for father. He said:
I called out to him once, there was no response, and I think I waited a bit and again, and I didn't hear anything back so I just got up out of bed to see if everything was all right, and I got out of bed and went towards his room and when I walked in the door I saw dad hanging from the rafter beam... I was purely shocked (240.30 - 40T).
I think it is implicit in this account that the accused called out to his father twice before getting out of bed to investigate the noise.
On this evidence, these matters could not have taken long to unfold (282.25 - 285.12T). In cross-examination, the accused agreed that the time from waking up to seeing his father hanging was considerably less than five minutes. He agreed that it could be as short as one minute. Witness estimates of time and space are often unreliable, for the simple reason that the witness generally has no reason to have regard to the passing of time. And in circumstances where one is confronted with a shocking sight, one's perception may become blurred or unreliable. Dr Olav Nielssen, a psychiatrist, gave expert evidence of disrupted memory in circumstances of a high state of arousal (343.45 - 344.20T).
Of significance in this context is the evidence of Associate Professor Orde in cross-examination (163.45T - 163.20T). Subject to his qualification that there are only a limited number of cases where the phenomenon of suicidal hanging has been reliably witnessed, judicial execution by hanging involving a very different process (Exhibit "B", appendix 1, page 15), a person hanged by full suspension will typically lapse into unconsciousness within a matter of seconds, and thereafter the body goes through various movements, exhibiting the signs of the onset of neurological brain damage, before coming to rest "after a few small number of minutes" (161.50T; 162.30T, 163.15T).
Associate Professor Orde said such slight evidence as there is might suggest a period up to ten minutes, "but usually a much shorter period". If one understood the evidence of the accused (at 285.5-.10T) as meaning a period between one and five minutes, it may fit in neatly with Associate Professor Orde's "a few small number of minutes". Taken literally, as one minute, it would not.
...the information about Mr. Ravindran's father suggests that he had an abnormal personality that is likely to have affected his son's achievement of the main task of adolescence, which is the development of an individual identity and separation from his parents. The report by Dr. Walters suggests that Mr. Ravindran chose to stay with his father when he was thirteen in order to look after him, and it seems that he had acceded to his father's wishes for much of his adolescence. Hence his father's actions in committing suicide in the way he did, soon after an argument about separating, can be interpreted as a spiteful act that would hurt his son.
Mr Ravindran described having an overwhelming mixture of emotions when he discovered his father's body hanging. However, the predominant emotion after he [had] taken his father's body down and realised that he was dead was one of anger, which can be understood as a reaction to his father's behaviour in apparently committing suicide in a way that would be calculated to upset him and make him feel guilty. He is also likely to have felt extremely angry in response to being abandoned by his father. Anger is a well recognised manifestation of grief, and has been described as one of the typical phases of grief by Elizabeth Kubler-Ross, who described the five phases of grief as shock, anger, denial, bargaining and acceptance.
In my opinion, Mr Ravindran's reaction in hitting his father's body after discovering that he had committed suicide in way that would be calculated to cause him the most hurt was an understandable manifestation of his immediate grief and shock.
The cross-examination of Dr. Nielssen accepted his opinion about the effect of high arousal on the acquisition of memory, but put the proposition - which the expert accepted - that the phenomenon he described could not explain the failure of the accused to give a satisfactory account of what happened on 23rd April 2011, unless one accepts that the deceased did in fact suicide (344.10-.30). Moreover, the following was put:
Q. So what you are saying is; if, as a matter of fact, the deceased suicided, and in the way in which it has been described to you, if you accept that, then what he did was understandable?
A. Yes.
Without objection from either Counsel I asked the following questions of Dr. Nielssen:
Q. Just in relation to this, as a well recognised manifestation of grief, a lot of people who have heard the facts of this case, as they have been contended before me, might think it most surprising that a young man who obviously loved his father, coming across what he believed to be his father's dead body, would not treat it with respect, but rather desecrate it in a most violent way. That is how I would understand what people in the community might think
A. Yes.
Q. Can you explain how that might sit with what you have said your branch of medical science says about it?
A. Certainly I would find it surprising too. It is certainly not a typical reaction, but not an impossible reaction, based on clinical experience of other people who are bereaved. I think, for example, of families of people who have committed suicide in hospital, for example, coming to my office, being very angry, even though the person has killed themselves in a situation where they have been supposed to be prevented from committing suicide, for example.
So anger at people who have witnessed a loved one hurting after a traffic accident, attacking the driver of the car without even stopping to think; if the person intended to cause any harm or not. So anger is an understandable reaction in the shock of grief. Again, in Mr Ravindran's case I would understand it in the context, as I set out in my report, of a very intertwined and perhaps manipulative relationship he had with his father and how his father's suicide was directed to hurt him and that would be an understandable cause of anger. It seemed to be manifested I read in the evidence; I didn't realise that Mr Ravindran had also punched a hole in the wall showing his anger. So, even if it may not be the most common reaction in the community, it is, nevertheless, an understandable reaction in some people in some situations.
...
Q. I have heard evidence in this case from forensic pathologists that suggest that it could be uncommonly difficult for an individual to handle either a corpse or a person who is, I will say, significantly unconscious. One of the aspects of that evidence that I have heard is that the person, if it is an unconscious person or the deceased person, if dead, would likely to be, especially if they were suspended by the neck, the word that was used was very floppy, and that 60 kilos of a floppy weight would be could be difficult to manipulate. It might be put to me, in due course, that given that expert evidence, one would expect somebody who had performed that task to be able to give a coherent account of how it was achieved. Bearing those considerations in mind, if you would for me, is what you have said about arousal and its effect on memory, got anything to do with how one might understand those apparent contradictions and the evidence as a whole?
A. Well, I think the context of Mr Ravindran finding his father hanging was an understandable shock. That would, in turn, produce a high state of arousal that could, in turn, affect memory formation and conversion of short term to long term memory. That could be understood in observations of many other people who have been in shock who have not remembered exactly the details of the accident or the details of the threat or the details of the crime, or whatever.
Dr. Nielssen's evidence was, absent acceptance of an attempted suicide and it's resulting inducement of the high state of arousal in the witness, the explanation for the failure to give a coherent account of the events in which one was involved might be deliberate evasiveness (349.15T).
Is the accused guilty of murder?
I turn then to consider the question of whether the Crown has proved beyond reasonable doubt that the accused is guilty of murdering his father. I will not recite the legal considerations set out at length at the commencement of this judgment. I will remind myself, however, that guilt must be the only rational inference that can be drawn from all the circumstances considered together rather than in a piecemeal fashion before the accused can be convicted. Otherwise, I must acquit him of the charge.
As I said at the outset, the only relevant element of the offence not admitted is the element of intention to kill or inflict really serious injury. To a large extent, amongst all the circumstances to which I have referred in this judgment, the resolution of this question depends upon whether I am satisfied beyond reasonable doubt that in addition to striking the deceased with the baseball bat, the accused strangled him using the hammock rope as a ligature as the Crown contend. If this has been proved beyond reasonable doubt, no serious question about intention can remain, for in that circumstance, all of the injuries that in combination caused the death of the deceased have been deliberately inflicted upon him by the accused. On the other hand, the Crown must fail in its endeavour if a consideration of all the circumstances established by the evidence leaves open as a reasonable possibility the inference that the deceased had attempted suicide in circumstances where the accused actually believed the deceased was dead at the time he struck the blows which significantly contributed to death. As I explained at the outset, this depends upon the consideration of a number of related circumstances.
For the accused to be entitled to acquittal I am not required by law to find as a fact, that the deceased attempted suicide. That would be to invert the onus of proof which at all times rests upon the prosecution. It is enough for an acquittal of the charge of murder if I am not satisfied beyond reasonable doubt that in the all of the circumstances of this case, all of the injuries, including those resulting from neck compression, were inflicted by the accused. For if I am left in doubt about that the Crown will not have discharged its onus because a reasonable hypothesis consistent with innocence will remain open on the evidence.
I am not persuaded that the accused deliberately strangled his father with the hammock rope and accordingly, I am not satisfied beyond reasonable doubt that he murdered his father.
The extremely close and unusual relationship between the accused and the deceased is significant. The deceased had built his whole life around his son, even to the extent of working less than he could have so he could be home when his son came home from school and later university. The deceased may have been the number one person in the accused's life, so too the accused to the deceased. I accept the evidence of Dr. Large and Dr. Nielssen that, given the deceased's personality disorder, the effect of the accused's decision to leave home upon him, in the context of the running argument which occurred on the 22nd of April 2011, makes his suicide a realistic possibility. Morbid jealousy is an aspect of the deceased's disordered personality. The accused's decision to leave home disclosed in the context of the acrimonious dispute was a direct attack on his ego. As he told Mr. Franklin years earlier, if he lost his son's respect he would commit suicide. The accusations that he made against his son, by comparing him with his mother, saying that no Indian boy would speak to his father as the accused had spoken to him, and offensively accusing him of ingratitude, are all circumstances which suggest the accused had cut him deeply, psychologically. As Counsel for the accused argued, if the acrimonious argument provided sufficient motive for murder, it may likewise have provided a motive for suicide.
Somebody in the house looked up "how to tie a noose" on the computer. It was at least just as likely to be the deceased as the accused. Indeed, a number of circumstances suggest that it was much more likely to have been the deceased, notwithstanding the higher rate of use of the computer by the accused. It is not suggested that the accused decided to murder his father before the morning of 23rd April 2011. Quite the contrary, it was the effect of unresolved anger simmering overnight that is said to have motivated him. But there is no evidence that he had any access to the computer overnight. His evidence, unchallenged in this regard, is that his father went to bed in his own room. It seems very unlikely, and it is not alleged, that the accused crept in, in the middle of the night, sat on the end of his father's bed, and consulted the computer while his father, the proposed victim, lay sleeping. Indeed, the accused's denial that it was him who consulted the computer was not challenged in cross-examination. Nor was it put to him that he callously sat reading the newspaper either just before or just after murdering his father. Rather, the evidence from Dr. Large is to the effect that persons who commit suicide sometimes attend to mundane matters just before the act. Obviously, this small point on its own, taken with the other circumstances, is not insignificant.
Apart from washing his hands with methylated spirits and cleaning his jacket, it was not put to the accused that he took any step to destroy evidence. Indeed, nothing else was disturbed. The baseball bat was left where he dropped it, the noose was left around his father's neck and there was no attempt to clean, hide or dispose of the blood soaked bed linen. He volunteered what may have been damming admissions from the very outset, even on the phone to the emergency operator. The statement, "I have made it worse", it is true, may bear a meaning consistent with a consciousness of guilt, but at the same time he knew that from the severe and bloody injury he inflicted on his father's head he clearly had made his father's situation worse, and I am not satisfied beyond reasonable doubt that this statement, on its own, indicates that the accused believed his father was alive when he struck him.
It seems to be accepted that there is no evidence from which it could be inferred that the accused attempted to mislead investigators by erecting the makeshift scaffold suggested by the juxtaposition of the chair and ottoman. No such proposition was put to him in cross-examination. This is of some relevance because the investigation of Snr. Const. Venables (as documented in Exhibit "B") demonstrates that it is at least possible for the deceased to have hanged himself from the coach bolt by standing on top of the ottoman, placed on the chair, and reaching up to place the hook at the end of the rope over the coach bolt. Avoiding speculation, it is clear from her measurements that if the deceased had stepped off the ottoman, he would have achieved full suspension. It is difficult to see how the accused could have calculated these considerations, and put them in place, in the short time available to him before dialling 000 at 7:25am. One thing clear from Mr. Mortensen's evidence is that the deceased had not been dead for long when he first saw him. This is consistent with the evidence of the forensic pathologists. But more importantly, such an elaborate ploy forms no part of the Crown case. Other than the accusation that he attempted to hide evidence by washing the blood from his hands with methylated spirits, nothing was put to him in cross-examination suggesting either premeditation and planning, or an attempt to simulate evidence after the event. The traces of blood on the jacket he cleaned, on his hands, and on the methylated spirits bottle may well be consistent with him cradling his father after he struck him, as he claims to have done. Leaving aside the grey chair, there is no evidence of any blood on the ottoman or on the computer suggesting he had consulted "wikihow" or set up the scaffold after bludgeoning his father. No reliance is placed on the DNA evidence as proof of guilt in this way.
There are two aspects of the accused's account with which I had particular difficulty. First, the passage of time between him hearing the bang and entering his father's room. On its most benign reading, this is somewhere between one and five minutes, which on one view of some of Associate Professor Orde's evidence may be insufficient for a brief hanging to render his father unconscious and still, presenting as dead. But, as I explained earlier in my reasons, the overall effect of Associate Professor Orde's evidence seems to be that "a small number of minutes" is enough time for a hanged person to achieve a restive state. Somewhere between one and five minutes fits this description. Any remaining tension between the plaintiff's evidence and Associate Professor Orde's evidence is not such as to overcome my doubt about the plaintiff's guilt.
Perhaps more significant is the cross-examination about how the accused got his father down from hanging. Despite my initial misgivings, I have not been persuaded to reject the account of the accused. First, of course, and fundamentally, he carries no onus. But the fact that he has given evidence cannot be ignored. Secondly, the height of 706 mm ascertained by Snr. Const. Venables, and about which the accused was sorely tested, is not very high. It is about two feet and six inches in imperial measure, and I cannot see any difficulty in a fully-grown nineteen year old raising his knee to that height while his other foot remains on the ground. Nor can I see him having difficulty pushing upward from that position. The height may assist this. Thirdly the evidence of Snr. Const. Venables is that the rather open hook could be easily dislodged from the short hanging point. As I have said, this is consistent with my own inspection of the exhibits. Fourthly, I acknowledge the force of the evidence of the difficulty in handling an unconscious or dead body. In particular, Associate Professor Orde's "floppy body hypothesis" must have some weight as a consideration telling against the account given by the accused. But, fifthly, I cannot entirely discount or put aside Dr. Nielssen's evidence about the effect of heightened arousal on the memory. If I hypothesise that a nineteen year old has come upon a loved parent apparently dead through hanging, it is easy to accept the phenomenon described by Dr. Nielssen as a real possibility.
I confess to having had great difficulty accepting that it was reasonable to hypothesise that a son having released his father from hanging could then, by any understandable process of human emotion, take to the same parent with a baseball bat. At the outset, this seemed to me to be so far beyond what I would regard as the expected range of ordinary life experience as to be fanciful. However, the evidence of Dr. Nielssen I have set out above has impressed me. On the basis of it, I am prepared to accept that the response the accused described on his affirmation is at least "understandable". In so concluding I have taken into account the evidence of his former teachers as to his good character. When weighed and considered with all the circumstances established by the evidence it forms part of a rational or reasonable hypothesis consistent with innocence.
I find the accused not guilty of murdering his father Ravi Ravindran at Medlow Bath on 23rd April 2011.
Manslaughter
Before making orders it is necessary for me to refer to the Crown case in relation to the alternative verdict of manslaughter. My finding in respect of the murder charge establishes that I am not satisfied beyond reasonable doubt that the accused intended to kill or inflict really serious injury on his father. As I said at the outset, manslaughter is not a crime of specific intent. It is not necessary for the Crown to prove any intention to injure.
In the circumstances of this case, the question is whether, notwithstanding that the accused actually believed his father was dead when he struck him, a reasonable person in his position would have appreciated that by striking his father with the baseball bat, he was exposing him to the risk of serious, not trivial, injury. As I have said this is an objective test.
There is, however, additional evidence touching upon the matter to which I must refer. By reference to my findings in relation to the murder charge, the Crown have not excluded beyond reasonable doubt the possibility that when the accused entered his father's bedroom his father had been hanging for Associate Professor Orde's "few small minutes", was unconscious and had become still. The following evidence of Associate Professor Orde is pertinent (163.20-.27T):
Q. And, of course, if that person had then stopped movement, they are unconscious, they could present to an individual as apparently dead at that point in time
A. It depends what that person's training is, what his experience is. It is a judgment of death. Dying/death can be a difficult thing. So certainly to a lay person, yes, this person may be unconscious, they might be limp and might not be breathing.
And also the following (164.30-165.5T):
HIS HONOUR: Gentlemen, I would like to ask a few questions and, obviously, if you think what I am asking is irrelevant or otherwise objectionable it is your duty to me and your clients to object.
Q. Just before you mentioned unconsciousness and you agreed with Mr Russell that a lay person - I will say, is the effect of your answer - could be mistaken about the state of the person who has lapsed into unconsciousness?
A. Yes.
Q. Would not a person who was unconscious and alive still be breathing to some extent?
A. I think we don't honestly [know] the answer to that. I think if this person would otherwise have come to, then, yes, one would think he would have to be breathing, or start breathing very soon afterwards, otherwise he would not have come to. If we accept that the head injuries were sustained after the partial hanging scenario, the neuropathological evidence suggests a survival period of, I think Dr Buckland said, of half an hour
Q. I think you said 35 minutes?
A. Yes, around half an hour, which suggests to me, had that been the case, then of course he must have been breathing at some stage, not necessarily right away, but he would have started breathing thereafter fairly rapidly, one would think.
Of course in evidence Dr Buckland moved well away from the figure of 35 minutes.
Under cross examination, Dr. Buckland gave evidence along similar lines (176.50-177.15T):
Q. Of course and what you are saying is you are not in any way discounting the scenario where a person may be in fact unconscious, not dead but unconscious, presenting as dead, with me, presenting as dead, then receive an injury which may not cause immediate death. That situation can occur?
A. That situation could occur, yes.
Q. I think I asked you some questions when you gave some evidence at the committal proceedings into this matter I think you gave them by video link, correct?
A. That is correct.
Q. Although it is not strictly your area of expertise you have of course studied general medicine, correct?
A. Yes I have a medical degree, yes.
Q. And you said depending on circumstances that may present to an individual at the time it may be very difficult for a person to determine whether an unconscious person is in fact alive or not?
A. It can be, yes.
Naturally, the reasonable person in the position of the accused is not to be imbued with the expert knowledge of specialist medical practitioners, but this evidence, notwithstanding Associate Professor Orde's qualification that the unconscious person may resume breathing after the compression has been released from the neck, is relevant to deciding the question. Just when the person would resume breathing after compression of the neck is released is not by any means clear. Moreover, the accused says he checked for a pulse and found none. I accept the deceased was then alive. But I am not satisfied beyond reasonable doubt that a reasonable person in the position of the accused without medical or paramedical training would have appreciated that the person was not dead, but merely unconscious, especially if he did not seem to be breathing, and no pulse was evident to an accused who checked for it.
In these circumstances, I am not satisfied beyond reasonable doubt that a reasonable person in the position of the accused would have appreciated that by his actions he was exposing the deceased to a risk of serious injury, because I am not satisfied to the extent required by the law that such a reasonable person would have realised that the person was alive.
Accordingly, I find the accused not guilty of manslaughter.
I direct the entry of verdicts of acquittal of both murder and manslaughter.
The accused is discharged.
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Amendments
19 August 2013 - Minor typographical and grammatical errors corrected.
Decision last updated: 19 August 2013
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