R v SEYMOUR - [2017] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v SEYMOUR
[2017] SASC 33
Judgment of The Honourable Justice Doyle
15 March 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
The defendant pleaded guilty to manslaughter. It is agreed that the deceased died early in the hours of 29 August 2015, at the defendant’s residence, and as a result of two or three punches delivered by the defendant to the deceased’s face. This involved an assault constituting manslaughter by unlawful and dangerous act. The defendant disposed of the deceased’s body in a wheelie bin.
A dispute arose as to the context in which the offence of manslaughter was committed. The defendant contended that he struck the deceased in response to being punched by the deceased. The prosecution contended that the defendant’s assault of the deceased was not spontaneous, or in response to anything done by the deceased, but rather the culmination of events relating to a drug deal he had arranged earlier in the morning of 28 August 2015.
Held per Doyle J:
1. In a case where the prosecution contends for a factual basis that is adverse, and the defendant contends for a competing factual basis that is favourable, the legal principles governing the proof of these factual bases leave open the possibility that both parties may fail to discharge the burden cast upon them, leaving the Court to sentence on the basis that neither asserted factual basis has been established.
2. Neither the prosecution nor defence factual basis has been established. The defendant will be sentenced on the basis that the reason or motivation for the defendant's unlawful and dangerous assault is unknown.
Criminal Law (Sentencing) Act 1988 (SA) s 6, referred to.
The Queen v Olbrich (1999) 199 CLR 270; R v Haydon (2001) 80 SASR 560; Filippou v The Queen (2015) 256 CLR 47, considered.

R v SEYMOUR
[2017] SASC 33
Criminal.

DOYLE J: The defendant has pleaded guilty to the manslaughter of Mr Hind. That plea was accepted by the prosecution in full satisfaction of the Information dated 30 May 2016 charging murder.
The defence and prosecution agree that Mr Hind died in the early hours of 29 August 2015, at the defendant’s residence, and as a result of two or three punches delivered by the defendant to Mr Hind’s face. It is also agreed that this involved an assault constituting manslaughter by unlawful and dangerous act, and that this is not a case involving either provocation or excessive self-defence manslaughter. It is also agreed that the defendant disposed of Mr Hind’s body later that day in a wheelie bin subsequently found at Waterloo Corner.
A dispute has arisen, however, as to an aspect of the factual basis for sentencing. It relates to the context in which the offence of manslaughter was committed.
The defendant contends that he struck Mr Hind in response to being punched to the chin by Mr Hind. He further contends that this punch was the result of disparaging comments that the defendant had made in relation to a Ms Tran. This factual basis would be favourable to the defendant in the sense that it suggests a level of spontaneity in the offending, and that it was triggered by the conduct of Mr Hind.
The prosecution contends that the defendant’s assault of Mr Hind was not spontaneous, but rather the culmination of events relating to a drug deal he had arranged earlier in the morning of 28 August 2015 involving poor quality methylamphetamine; and more specifically, that the defendant had reason to believe that Mr Hind was responsible for the poor quality methylamphetamine, and that it was this belief that led to his assault of Mr Hind. This factual basis is adverse to the defendant in the sense that it suggests a level of premeditation or deliberation on the part of the defendant, with the offending neither spontaneous nor triggered by any conduct on the part of Mr Hind.
Legal principles governing resolution of disputed factual basis for sentencing
By a plea of guilty a defendant admits all of the elements of the offence with which he is charged. However, a plea does not involve an admission of any particular version of the broader factual circumstances of the offending.[1]
[1] The Queen v Olbrich (1999) 199 CLR 270 at [25]; R v Haydon (2001) 80 SASR 560 at [12], [19].
The Court is left with responsibility for determining the facts that it considers relevant to the sentence to be imposed. In determining those facts, the Court is not bound by the rules of evidence and may inform itself on matters relevant to the determination of penalty as it thinks fit. However, the Court will generally confine itself to the evidentiary material that has been tendered at the preliminary examination, in addition to any other material that has been filed or tendered during the sentencing process.[2]
[2] Section 6 of the Criminal Law (Sentencing) Act 1988 (SA); R v Haydon (2001) 80 SASR 560 at [12], [21].
In this case, the prosecution relies upon a number of statements and reports, a plan of the prisoner’s house and various photographs. The prosecution also relies upon schedules summarising the activity on the defendant’s and Ms Tran’s mobile phones on 28 and 29 August 2015. In addition to the above, the defendant gave oral evidence on the disputed facts hearing.
While it is for the Court to find facts and draw inferences from this material, an issue arises as to the burden of proof.
Facts adverse to the defendant must be established by the prosecution beyond reasonable doubt. On the other hand, facts favourable to the defendant must be established by the defendant on the balance of probabilities (at least when contested by the prosecution, or when the Court is not otherwise disposed to accept them without more).[3]
[3] Filippou v The Queen (2015) 256 CLR 47 at [64], [66]; The Queen v Olbrich (1999) 199 CLR 270 at [25]-[27].
In a case where the prosecution contends for a factual basis that is adverse, and the defendant contends for a competing factual basis that is favourable, the legal principles governing the proof of these factual bases leave open the possibility that both parties may fail to discharge the burden cast upon them, leaving the Court to sentence on the basis that neither of the asserted factual bases has been established. The Court must then sentence upon some other factual basis, or upon the basis that the relevant aspect of the factual circumstances is unknown.
As a corollary of this, it does not follow from a finding that the prosecution factual basis has not been established beyond reasonable doubt that the Court must sentence on the basis contended for by the defendant, or even the most favourable version of the facts open on the evidence.[4] In the context of the present case, this means that even if the prosecution has not made out its adverse factual basis, it does not necessarily follow that I must accept, or act on the basis of, the defendant’s favourable factual basis.
[4] Filippou v The Queen (2015) 256 CLR 47 at [64], [70]; The Queen v Olbrich (1999) 199 CLR 270 at [24]; R v Haydon (2001) 80 SASR 560 at [30].
The evidence
There is little or no controversy about a number of the background circumstances. I propose to commence by setting out my findings in relation to these matters before summarising the relevant aspects of the phone records and the evidence of the key witnesses in relation to the matters relevant to the facts in dispute.
Background findings
I find that the defendant arranged the sale of some methylamphetamine by Mr Downes to Mr Williams early on the morning of Friday, 28 August 2015.
Later that same morning Mr Williams phoned the defendant and complained about both the quality and quantity of the methylamphetamine he was sold. He complained that it was both of poor quality and short of the quantity represented. The defendant arranged for Mr Downes to address Mr Williams’ complaint, which Mr Downes did by arranging for some replacement methylamphetamine to be supplied to Mr Williams.
From time to time Mr Downes had purchased methylamphetamine through Ms Tran or her boyfriend, Mr Longbottom. It is likely that the methylamphetamine sold to Mr Williams came from Ms Tran or Mr Longbottom.
The defendant finished work at around 3.00 pm on 28 August 2015, and then had some “knock-off” drinks at his place of work until around 4.00 pm. After purchasing some alcohol, he went home for a short while before going for some further drinks with friends for about an hour and a half. He then returned home again.
From around 6.30 pm the defendant exchanged text messages with Mr Downes with a view to catching up with him. At around 9.00 pm that evening Mr Downes came to the defendant’s home. They stayed there for about an hour and or so drinking. The phone records show that during that period of time two calls were made from the defendant’s phone to Mr Williams (at 9.47 pm and 9.48 pm), and a third phone call was made from the defendant’s phone to Ms Tran (at 10.02 pm, for approximately 15 minutes).
At some point following the calls to Mr Williams, Mr Downes left the defendant’s house. The defendant then drove his car to purchase some Tally-Ho papers. He then drove to Ms Tran’s house, arriving there shortly before 11.30 pm.
While he had spoken to Ms Tran earlier that evening by telephone, the defendant had not previously met Ms Tran. I shall return to the defendant’s visit to Ms Tran’s home in due course, but when he arrived there Ms Tran was present with her children, her mother (Ms Hilton) and Mr Hind.
Mr Hind was a friend of Ms Tran. Mr Hind had been drinking that evening. After visiting his brother, he arrived at Ms Tran’s home shortly before the defendant. He brought with him a bottle of Jack Daniels and some bottles of soft drink, with the intention that he would drink it with Ms Tran. He also had a bum bag containing a tin of cannabis.
When the defendant arrived, Mr Hind was in the process of arranging a taxi to take him to purchase some more alcohol because he had dropped and smashed his bottle of Jack Daniels. The defendant and Mr Hind had not previously met, but the defendant offered to drive Mr Hind to purchase the alcohol he wanted. The two men left together in the defendant’s car, with Mr Hind saying to Ms Tran and her mother that he did not expect to be long. He left his bum bag on a bench at Ms Tran’s house.
It is now necessary to summarise the evidence in relation to the more controversial aspects of the defendant’s conversations and movements during the night of 28/29 August 2015, both before and after his visit to Ms Tran’s house. I commence by summarising the phone records of the defendant and Ms Tran, before addressing the relevant aspects of the evidence of the defendant, and the statements of Mr Downes, Mr Williams, Mr Cheshire and Ms Tran.
The phone records
As mentioned, I was provided with schedules setting out the phone calls to and from the defendant’s and Ms Tran’s mobile phones on 28 and 29 August 2015. Several of the calls recorded on those schedules are of some relevance to the dispute as to the factual basis for sentencing.
In relation to the defendant’s phone, the following activity from the night of 28/29 August 2015 is relevant:
·    Between 6.31 pm and 8.54 pm, the defendant made several short calls to, and exchanged text messages with, Mr Downes.
·    At 9.47 pm and 9.48 pm, the defendant made two calls to Mr Williams, lasting 19 seconds and about three minutes respectively.
·    At 10.02 pm, the defendant made a call to Ms Tran lasting about 15 minutes.
·    At 10.41 pm, the defendant made three attempts to call Mr Cheshire.[5]
·    At 11.13 pm, Mr Williams attempted to call the defendant and sent him a text message.
·    At 11.14 pm, the defendant made a call to Mr Williams, lasting about three minutes.
·    Between 11.22 pm and 11.28 pm, the defendant made four attempts to call Mr Downes.
·    At 1.55 am, the defendant made a call to Mr Williams, lasting about two minutes. He made further attempted calls to Mr Williams at 2.02 am and 3.15 am.
·    At 2.00 am, the defendant made a call to Mr Downes, lasting about five minutes. He made further attempted calls to Mr Downes at 2.29 am, 3.15 am and 4.26 am.
·    At 2.30 and 3.17 am, the defendant attempted to call Mr Cheshire.
·    At 3.16 am, the defendant made two attempted calls to Ms Tran.
·    At 4.27 am, the defendant attempted to call Mr Bleech.
[5]    Where I have referred to “attempts to call” a person in this section of my reasons, I am referring to calls of only a few seconds, suggesting that the call went through to message bank or was not answered.
The following information was extracted from Ms Tran’s phone in relation to the text messages and phone calls between Ms Tran and Mr Hind during the early hours of the morning of 29 August 2015:
·    At 12.03 am, a text from Ms Tran – “you all good man”.
·    At 12.07 am, a text from Mr Hind – “all good at his house”.
·    At 12.07 am, a text from Ms Tran – “Ez man”.
·    At 12.31 am, a text from Ms Tran – “Hey man Im gonna go to bed not feeling too good”.
·    At 12.33 am, two missed calls from Mr Hind.
·    At 12.33 am, a text from Ms Tran – “laying with paige cant talk txt me”.
·    At 12.34 am, a text from Mr Hind – “my bug bag dare plus I said I shout mum rage”.
·    At 12.34 am, a text from Ms Tran – “Ok I’ll try stay awake”.
·    At 12.46 am, a text from Mr Hind – “please do”.
·    At 1.30 am, a text from Ms Tran – “been on struggle lane for a while now bout to turn onto noddy corner then def zzzz place lol”.
·    At 3.00 am, a missed call from Mr Hind.
·    At 3.01 am, a text from Ms Tran – “still awake man”.
·    At 3.01 am, a text from Ms Tran – “whats up”.
·    At 3.08 am, a text from Ms Tran – “going to bed now def can’t keep eyes open”.
·    At 3.15 am, a missed call from Mr Hind.
·    At 3.34 am, 3.35 am, 3.38 am. 3.48 am, 3.49 am, 3.52 am, 3.53 am, 3.55 am and 4.09 am, nine missed calls from Mr Hind.
·    At 4.14 am, a voice to text message from Mr Hind – “Oy call me. Got to my stuff inside the house aye. Answer your phone please. Answer my phone call. And my shits are no so”.
·    At 4.16 am, 4.18 am[6] and 4.26 am, three missed calls from Mr Hind.
·    At 4.45 am, a voice to text message from Mr Hind – “Carly. Hey. Are you there”.
·    At 10.40 am, a text message from Ms Tran – “Hey man how is u sorry about lasty i couldn’t keep my eyes open”.
[6]    This was a voice to text message that was unable to be converted to text.
Ms Tran’s phone records also include the two missed calls from the defendant’s phone at 3.16 am.
Later in the morning of 29 August 2015, once Ms Tran became aware from Mr Hind’s family that he was missing, Ms Tran and the defendant had the following exchange of text messages:
·    At 11.17 am, a text from Ms Tran – “Hey its Kylie how are u? Is my mate Daniel still with u? His family has been trying to contact him”.
·    At 11.23 am, a text from the defendant – “Hey. Nah he walked home last night. Let him know he stills owes me twenty”.
·    At 11.26 am, a text from the defendant – “Catch up soon Sarah”.
·    At 12.09 pm, a text from Ms Tran – “Sarah?”
·    At 13.01 pm, a text from Ms Tran – “What time did he leave? He still hasn’t showed up at his house. Where bouts did he walk home from? Like what suburb”.
·    At 1.03 pm text from the defendant – “I thought he went with you Sarah”.
·    At 1.09 pm, a text from Ms Tran – “Who is Sarah? And you jus sent me a txt saying he walked home now u say he left with someone named sarah. He was supposed to have his son today its not like him not to show up. He had absolutely nothing to do with what u came to see me about last night. Please if u know where he is”.
·    At 1.36 pm, a text from the defendant – “not sure sorry”.
Finally, the evidence reveals a text message from Ms Tran to Mr Downes on 29 August 2015 in the following terms:
YOU FUCKING PIECE OF SHIT DOG CUNT!!!! AS IF YOU give my name, phone number and address up like that to try save your ARSE!! WHAT THE FUCK did you think you would achieve out of that. Well it back fired didn’t it. Jus cos im a chick you think im a easy target and would get scared and take the blame for you fucking the shit…. BAHAHAHA your WRONG CUNT! Did you forget i have my kids here and I would die for them so you trying to scare me like that was the biggest mistake of ur life and showed me what i real gutless piece of shit really is. Then to send me a msg saying i got you done cos it was a cop I was talking to was ur second biggest cos u know what if that was the case how did he have my name, phone number and address? Obviously u gave it up to save ur arse! So that automatically makes u DOG!! and means u were willing to make my kids have to see something happen to their mum, you piece of shit!!! And guess what CUNT If that was a cop u wouldn’t of had ur phone back to send me that msg and i doubt you would have been on fb couple hrs ago …. YOU FUCKED UP BIG TIME! and i wouldn’t bother replying to this txt trying to act like a hero tough cunt cos 1 what u say from now on isnt going to bother me at call cos you more than proved that all you are is a weak piece of gutless shit FUCK YOU DOG if u got anything to say and want to be a hero come around and say it to my face you WEAK DOG!!! And as for calling me bed sores guess what your going to be nothing but a bed sore once im done with you!! WEAK PIECE OF SHIT CUNT DOG.
P.s. you have 1 wk to come up with some money for the damage you did to my car or cop the consequences for that too…mm
The material before me does not reveal the content of the message to which this was apparently a response.
The defendant’s evidence
The defendant’s evidence was that the reason he wanted to catch up with Mr Downes on the evening of 28 August 2015 was to have a drink with him and because he wanted to buy some drugs. The defendant was a recreational user of methylamphetamine at the time.
Mr Downes arrived at the defendant’s home at about 9.00 pm. While he denied that the events of earlier in the day relating to the drug deal were “playing on [his] mind”, the defendant accepted that it was something they spoke about when Mr Downes arrived. But he maintained that the purpose of catching up with Mr Downes was “just for drinks”, and because he was interested in getting some drugs.
In addition to discussing the earlier drug deal, the defendant and Mr Downes also discussed Ms Tran. While the defendant had not met her, he knew that Ms Tran was someone Mr Downes knew and that she was known for selling drugs. She was sometimes referred to by the nickname “bedsores”. The defendant said that Mr Downes did not have any methylamphetamine, and that Ms Tran was mentioned as someone from whom they might get some.
The defendant said that he did not have Ms Tran’s phone number prior to that night, and that he could not remember making the phone call from his phone to hers (at 10.02 pm, for about 15 minutes). He raised the possibility that Mr Downes might have used his phone, but then accepted that his phone had a lock on it and that Mr Downes did not have the code. He agreed that it was possible he was trying to source methylamphetamine from Ms Tran during the phone call, but could not recall. He also agreed it was possible that they had a conversation along the lines suggested by Ms Tran (see below). But he maintained that he had no recollection of that call or conversation.

The defendant did recall phoning Mr Williams while Mr Downes was at his home. He knew from Mr Williams that the problem with the drug deal had been fixed, but he told Mr Williams that he had Mr Downes at his house. He suggested that Mr Williams might come over, and also said things to Mr Williams along the lines that Mr Downes was a “dickhead”, and that he should not have done what he did. He asked Mr Williams whether he wanted him to “rough him up”.
While acknowledging that he said these things, the defendant denied doing anything physical to Mr Downes, and in particular denied the aggressive conduct Mr Downes has attributed to him (see below). When speaking to Mr Williams he was just “pissing in his ear”, and trying to make him feel better. The defendant maintained that he was being “tongue in cheek”, with Mr Downes sitting there and listening. He said that, from his perspective, the problem with the methylamphetamine had been solved: “It was all over and done with. It had nothing to do with me anyway, besides me setting them up to meet each other. That was it.”
According to the defendant, Mr Downes left his house at around 10.30 pm. The defendant then drove to a service station to purchase some Tally-Ho papers. He visited his partner but didn’t stay as he had been drinking and she was “not a fan of that”.
The defendant said that he then stopped at Ms Tran’s house (referring to her by her nickname, as he did throughout his evidence). Ms Tran lived only a short drive from his partner’s house. He said that he “decided to drop in and see if she had any meth.” At that stage of his evidence he said that he knew Ms Tran as someone to whom Mr Downes would supply drugs, “or vice versa, I’m not too sure”. But he knew her house because he always saw Mr Downes’ car there and he knew it was “a place you could get drugs”.
He knocked on the door, and introduced himself as Mr Downes’ mate. Ms Tran was a bit hesitant, but ultimately let him in.
When asked whether he discussed drugs with Ms Tran, the defendant’s evidence was as follows:
Q     Did you say anything to her about drugs.
A     I asked if she had any. She knocked me back. She said ‘no’.
Q     Was anything said about Downsey’s drugs.
A     I said ‘Downsey’s drugs were shit’, I wondered if she had any.
QDid you, yourself, have any knowledge as to whether or not she supplied Downsey with those drugs or did you have a view as to where Downsey’s drugs had come from.
AI knew Downsey’s drugs come from Downsey. I am not too sure the relationship they had, who had who.
The defendant acknowledged that he “may” have asked Ms Tran whether she had sourced the drugs that he had arranged for Mr Downes to sell to Mr Williams, but he did not have a recollection of doing so. He said it was “hard to say” whether this was on his mind when he visited Ms Tran that night.
The defendant recalled seeing a couple of people at Ms Tran’s house. He met Mr Hind, who was trying to get a taxi to a bottle shop. He offered him a lift. When Mr Hind accepted, he drove him to the Whitehorse Inn, which was about a 10 minute drive away. Mr Hind bought a bottle of alcohol and they left.
The defendant said that he then went back to his house to “grab some more money because there was talk – [Mr Hind] told me [Ms Tran] had some gear so with his help, persuasion, I would be able to buy some more.”
He said that it was quite early – before midnight – and that he wanted the money to buy whatever he might need. While acknowledging that he could have dropped Mr Hind back at Ms Tran’s house before getting his money, he decided to go to his place first. He said that “it was just the way it happened”.
The defendant said that when back at his house they decided to have some drinks. While drinking they proceeded to play pokies on the computer, listen to music and talk about his job. They were generally having a good time. The time disappeared. They ended up drinking about half a bottle of spirits each.
While Mr Hind was at his place, the defendant rang some other people (Mr Downes, Mr Williams, Mr Cheshire and Mr Bleech), to invite them around for drinks and to try and get some methylamphetamine. The defendant was “well and truly intoxicated” by that stage of the night and wanted some methylamphetamine because he knew he was supposed to work the following morning.
In relation to the missed phone calls from the defendant’s phone to Ms Tran’s phone at 3.16 am, he thought they would have been calls he made to get some methylamphetamine from Ms Tran. While agreeing that Ms Tran had told him she had no methylamphetamine, he believed she did have some. This was in part because she was a drug dealer, and in part because Mr Hind had suggested to him that she did.
The defendant denied having any inclination or suspicion that Mr Hind might have been involved with the drug deal that he had arranged earlier in the day. He said “I didn’t even know the guy. He had nothing to do with it at all. … It is hard to have a suspicion with someone you don’t know.” He denied pretending he needed money so as to get Mr Hind into his house.
As to whether he discussed with Mr Hind the topic of the drug deal earlier in the day, he answered:
AMay or may not. I know I definitely would have said “Downsey had some shit gear” and I’m sure I would be asking if Bedsores had any, if he knew she had any. I’m pretty sure we talked about that, her having some and about Downsey having shit stuff earlier that day but that is probably about it. Not about the drug deal. It was nothing to do with him.
…
AIt is not something I would tell everyone about. It is not a topic you would bring up while talking to someone you just know.
He denied accusing Mr Hind of being involved in the earlier drug deal, saying “it’s impossible for me to do so because he had nothing to do with it.” He said that Mr Hind was at his house for some hours and could have left at any time he liked.
Turning to the fatal altercation, the defendant said that Mr Hind had already become cranky because he wanted his “bum bag and smokes and stuff” that he had left at Ms Tran’s house. He had been trying to get hold of her, and one minute she was there and then the next minute he could not get hold of her again. He wasn’t too happy.
The defendant then described what happened in the following terms:
ADaniel had rung Bedsores a few times. I could see he was keen on her but didn’t like the fact I kept calling her Bedsores. I mentioned to him, because he rang her a few times, I mentioned ‘She is probably in bed with Downsey now getting [it] on’ and he didn’t like that at all and just took a swing at me.
QWhat did you do.
AI swang back.
QHow many times.
ATwo or three.
QWhy did you do that.
AI think I knocked him out and I was pissed off that the altercation happened because we were having a good time. He was a good dude, everything was fine. I just thought ‘Sleep it off princess’ and I just sat down. I was grumpy and just sat down, poured a drink and thought nothing of it. I fell asleep.
The defendant later added that before Mr Hind hit him, he (the defendant) had been “razzing him up”. He knew Mr Hind was keen on Ms Tran, but was being a smart arse, referring to her by her nickname and as a “junkie slut”, saying that she was “probably getting smashed by Downsey”. The defendant was intoxicated and was getting a reaction from Mr Hind, and so kept being “cheeky”.
The defendant said that it was only the following morning that he realised that Mr Hind was dead. The defendant described the steps he took to conceal, and then dispose of, Mr Hind’s body. He also described the steps he took to clean the blood from his house. It is not necessary for present purposes to detail that evidence.
The defendant concluded his evidence-in-chief by denying that the altercation with Mr Hind had anything to do with the drug deal of 28 August 2015. He said:
Absolutely no. Kylie had nothing to do with it, it was all to do with [Mr Downes and Mr Williams]. The only people that were upset was [Mr Williams] because he got bad stuff, but [Mr Downes] had fixed that earlier in the day.
In cross-examination he added that he did not think his facilitation of the “pretty poor” drug deal reflected badly on him. He said “no, no, not at all. I’m not a drug dealer, so it doesn’t bother me.”
Mr Downes’ statements
In the statements he provided to the police, Mr Downes said the following of relevance in relation to the matters in controversy.
On the night of 28 August 2015 he went to the defendant’s house at about 7.00 pm. He stayed for about an hour and a half. They chatted and drank.
At one point, the defendant came up behind him and wrapped what he assumed was a tea towel around his neck, pulling it tightly enough to jerk Mr Downes backwards. The defendant said “if I didn’t like you Downsey, I would have choked you out by now.”
Mr Downes said that the defendant then took his phone from him and rang Ms Tran. He assumed the defendant knew she was someone he sometimes bought drugs from. The defendant asked Ms Tran questions about when Mr Downes had last bought drugs from her and about the quality of the methylamphetamine, and whether Mr Downes might have “cut” the methylamphetamine.
Mr Downes believed that the defendant also used Mr Downes’ phone to ring Mr Cheshire telling him that he had Mr Downes with him, and that he had him tied up and was holding him against his will.
Mr Downes finished his drink and went to leave. When he was halfway down the hall the defendant told him to come back, but he left because he was scared and there was an opportunity to leave. He was pretty shaken up by what had happened with the tea towel.
After leaving the defendant’s house Mr Downes went and visited Mr Cheshire, before later visiting two other friends. He stayed with them for the balance of the night.
Mr Downes said he was not able to recall sending the message to Ms Tran to which she was apparently responding in the text message extracted earlier in these reasons. He was not able to provide any coherent explanation for that message.
Mr Williams’ statements
Mr Williams described the drug deal earlier in the day, and the steps taken through Mr Downes to address his complaints.
He then said that he received various calls from the defendant that night. He thought that there were probably four, five or six calls, perhaps as many as nine, and that they commenced at about 11.30 pm and continued into the morning.
He described one call in which there was music blaring in the background. The defendant said words to the effect of “I’ve got the guy here and are you coming around”. The defendant did not say who the guy was, but went on to say things along the lines “I’ve got him tied up”; “I’m throwing darts at him”; “I am beating the shit out of him”. Mr Williams thought it was all a bit bizarre, and that the defendant was “talking shit”.
Mr Cheshire’s statement
Mr Cheshire recalled receiving a call from the defendant on Mr Downes’ phone during the evening of 28 August 2015. The defendant asked Mr Cheshire to come round to his house. Mr Cheshire described the defendant as sounding a bit uptight and as the conversation being a bit odd. He recalled other phone calls that evening between him and the defendant, although he did not address the content of those calls.
Mr Cheshire also recalled receiving a call from Mr Downes that evening soon after the initial conversation between the defendant and Mr Cheshire on Mr Downes’ phone. While Mr Downes appeared to be suggesting that he was being held at the defendant’s place against his will, Mr Cheshire dismissed it as “bullshit” at the time.
Ms Tran’s statements
Ms Tran confirmed that she was a user of methylamphetamine, and that Mr Downes was also a user who often got his methylamphetamine through her. Mr Downes sometimes purchased amounts together with Mr Cheshire.
Ms Tran recalled receiving a call from the defendant during the evening of 28 August 2015 in which he asked whether he could come and buy some drugs, adding that Mr Downes had said he could get some “good stuff” from her. He also said that he had got some methylamphetamine from her previously, but through Mr Downes. Ms Tran did not know who the defendant was, and did not recall Mr Downes having mentioned him. She told the defendant she did not have any drugs. The defendant asked whether he could come around anyway to put a face to the name. Ms Tran responded “well my kids are up, and my mum’s here.” The defendant said “Oh, I won’t come around while your mum’s there”.
Ms Tran said that she was a friend of Mr Hind. He came over to her house to catch up for a drink at some time after 11.00 pm on 28 August 2015. He arrived with a bottle of Jack Daniels and some soft drinks. He dropped and smashed the bottle of Jack Daniels near the front door. Soon after this the defendant arrived at her front door. She did not recognise him, but he introduced himself as Mr Downes’ mate and the person to whom she had spoken on the phone earlier that night. He asked if she had seen Mr Downes. He said he recognised her house because he had previously seen Mr Downes’ car parked out the front. Ms Tran told him Mr Downes was not there.
The defendant told Ms Tran that he was annoyed with Mr Downes, and that Mr Downes had told him that he had got the “shit drugs” from Ms Tran. Ms Tran said that what Mr Downes does with the drugs when he leaves her is his business. The defendant asked her whether she could get any more, and she said she could not. He asked her who she got it from and she ignored the question, saying she didn’t sell drugs from her home.
At this stage, both she and the defendant could hear Mr Hind on the phone to a taxi company trying to organise a taxi to take him to get more alcohol. While her impression was that they had not met before, the defendant offered to give Mr Hind a lift to the bottle shop. Within about 10 minutes of the defendant arriving at her house, the defendant and Mr Hind left together. As Mr Hind left, he said something to the effect of “I’ll be back in a minute”. He had left his bum bag on the kitchen bench. To her observation, Mr Hind did not seem to be affected by alcohol or drugs. Other than being a bit annoyed that he had dropped his bottle of Jack Daniels, he seemed to be his usual self.
Ms Tran said that by 12.03 am she was concerned that Mr Hind had not returned and so sent him the text message mentioned in the summary of her phone records set out earlier. There followed the extended exchange of text messages and missed calls throughout the morning that has been summarised earlier. At various stages throughout that period of time she was with her boyfriend Mr Longbottom (who arrived at her place between about 1.30 am and 2.30 am) or asleep.
Later, during the day of 29 August 2015, Ms Tran sent the message to Mr Downes extracted earlier in these reasons. She did so because she was “pissed off” that Mr Downes had told the defendant that he had got “shit gear” from her, and that he had given him her phone number and address.
Ms Tran said that Mr Hind had nothing to do with the earlier drug deal whatsoever; that the methylamphetamine that Mr Downes had purchased, while arranged by her, in fact came from her boyfriend, Mr Longbottom.
Consideration
In considering the material available to me, I am conscious that Mr Downes, Mr Williams, Mr Cheshire and Ms Tran have not been cross-examined. There are aspects of the accounts given by Mr Downes and Mr Williams that are inaccurate as to their timing.
While I am not prepared to attach much significance to the detail of their versions, the combined effect of their versions is sufficient to satisfy me that, contrary to the defendant’s evidence, the defendant continued to be annoyed about the earlier drug deal well into the night of 28 August 2015. It is a topic that he raised in his discussions that evening with each of Mr Downes, Mr Williams and Ms Tran.
It is likely that the defendant was also keen to purchase some methylamphetamine for his own use that night, and that this was also a topic he discussed with Mr Downes and Ms Tran (both by phone and in person when he visited). However, I am satisfied that his annoyance with the earlier drug deal explains significant aspects of his conduct that night. I am satisfied that his desire to express his annoyance, and to discover who was responsible for the bad drugs, was at least in part the reason that he arranged to catch up with Mr Downes. I am satisfied that he did grab Mr Downes from behind in the manner described by Mr Downes, and that he phoned Mr Williams to let him know that he was dealing with Mr Downes. There may well have been, from the defendant’s perspective, an element of jest or performance in what he did, but I do not accept that it was entirely light-hearted. I am satisfied that his actions reflected a continuing sense of annoyance about the earlier drug deal.
I am also satisfied that Mr Downes told him that the bad drugs came from Ms Tran, and that both his phone call to Ms Tran, and his visit to her, were motivated at least in part by a desire to express his annoyance about the quality of the drugs that had been supplied. I accept Ms Tran’s account of the two conversations she had with the defendant that evening. Her evidence that they related to the “shit drugs” is corroborated by the content of her text message sent to Mr Downes the following day.
While the defendant denied being annoyed in the manner described, I do not accept his evidence in this respect. I prefer the general effect of the versions given by Mr Downes, Mr Williams and Ms Tran, each of which makes it plain that the defendant remained annoyed by, and focused upon, the “shit drugs” that had been supplied earlier in the day, and in finding out who was responsible for them.
The issue remains, however, what if any role the defendant’s annoyance about the earlier drug deal played in the defendant’s actions following his departure from Ms Tran’s house.
In considering this issue, I have, of course, had careful regard to the defendant’s oral evidence. However, I have a number of concerns about the credibility and reliability of his evidence. I have rejected his denial of the tea towel incident with Mr Downes. I consider that his evidence denying any recollection of his 15 minute phone call with Ms Tran was evasive and untruthful. He was similarly evasive in relation to the reason for his visit to Ms Tran’s house, and the conversation he had with her. He equivocated over whether he knew Ms Tran had supplied Mr Downes with the methylamphetamine for the earlier drug deal. He generally downplayed the significance to him of the earlier drug deal, and the extent of the role that it played in his conduct and conversations that night. The defendant also accepts that he told a number of lies the following day and subsequently in response to inquiries of him by Ms Tran and the police in relation to the whereabouts of Mr Hind.
I was not asked to find that any of the defendant’s lies reflected a consciousness of guilt (as to the adverse factual basis), or was a basis upon which I could draw any positive inference about the defendant’s motivation or conduct. However, the cumulative effect of the difficulties with the defendant’s evidence does leave me unable to rely upon his evidence where it is not otherwise corroborated, and so I do not do so.
Returning to the task of making findings in relation to the events following the defendant’s departure from Ms Tran’s house with Mr Hind, it is difficult to believe that the events of earlier in the day suddenly became a matter of no concern at all to the defendant. But, by the same token, there is little or no evidential basis for finding that this was what prompted the defendant to offer Mr Hind a lift, to take him back to his house, to keep him at his house, or to assault him several hours later.

There is certainly no evidence to suggest that Mr Hind was involved in the earlier drug deal. To the contrary, the evidence leads me to conclude that the drugs supplied by Mr Downes to Mr Williams had been obtained through Ms Tran and Mr Longbottom, without any involvement at all by Mr Hind.
But more importantly for present purposes, there is also no evidence to suggest that the defendant mistakenly believed that Mr Hind was involved. On the evidence of Mr Downes, Mr Williams and Ms Tran, nothing they said or did would have given the defendant that impression. The presence of Mr Hind at Ms Tran’s house may have raised this as a possibility in the defendant’s mind, but it is speculative to suggest that it did more than that. It is apparent from Ms Tran’s text message to the defendant at 1.09 pm on 29 August 2015 that she suspected the defendant might have had this mistaken belief, but there remains no proper evidential foundation for me to make a finding to that effect.
For that reason, I am not satisfied that the earlier drug deal played any part in the defendant’s decision to give Mr Hind a lift to the bottle shop or to take him back to his house for a drink. I do not consider there to be anything inherently implausible in the defendant’s evidence that he went back to his house before returning Mr Hind to Ms Tran’s house because he wanted to get some money to purchase drugs.
Turning to the events after the defendant and Mr Hind went to the defendant’s house, it is significant that Mr Hind stayed there for a period of at least four and half hours before he was assaulted. Mr Hind’s text message at 12.07 am suggests that they were at the defendant’s house by that time, and the voice to text message of 4.45 am apparently from Mr Hind suggests that he was still alive at that time. While the fact that Mr Hind left his bum bag and cannabis at Ms Tran’s house suggests that he did not expect to be gone long when he left Ms Tran’s house, there is nothing in the evidence to suggest that Mr Hind was being held against his will during the extended period of time that he was at the defendant’s house. Indeed, the content of his text message exchanges with Ms Tran during that period suggests otherwise. While Mr Hind’s messages make reference to his bum bag and “stuff” (which I assume is a reference to his cannabis) that he had left at Ms Tran’s house, there is nothing in those messages to indicate any concern on the part of Mr Hind for his safety, or that he was being held against his will.
The prosecution points to the flurry of phone activity from about 3.30 am onwards as providing an indication of some increasing level of desperation on the part of Mr Hind. The contention was that it could be inferred that by this point in time the defendant had come to believe that Mr Hind was involved in the earlier drug deal, and that he was becoming desperate to get hold of Ms Tran so as to satisfy the defendant that this was not the case.
I do not consider there to be an adequate evidential foundation for this contention. I note that during the run of missed calls from Mr Hind, he sent a message to Ms Tran. While the tone of that message is perhaps somewhat desperate, it again makes reference to his “stuff” being at Ms Tran’s house. Its tone is consistent with an increasing frustration with his inability to speak with Ms Tran about collecting his bum bag and “stuff”.
In summary, for the reasons I have set out, I am not satisfied that either party has established the factual basis they contend for to the requisite standard.
While I am satisfied that the defendant was annoyed about the poor quality methylamphetamine supplied in the drug deal he arranged earlier in the day, and that this motivated his contact with Ms Tran by telephone and in person on the night of 28 August 2015, I am not satisfied beyond reasonable doubt that this annoyance motivated his assault upon Mr Hind in the premeditated manner suggested in the adverse factual basis contended for by the prosecution. Critical to this conclusion is the absence of any evidential basis for suggesting that the defendant believed Mr Hind was involved in the drug deal, the length of time for which Mr Hind was in the company of the defendant, and the content of Mr Hind’s text message communications with Ms Tran during that period of time.
On the other hand, by reason of the doubts I have about the credibility and reliability of the defendant’s oral evidence as to the events of the night of 28/29 August 2015, I am also not satisfied that it is appropriate to rely upon his explanation for the assault. In particular, I am not prepared to accept on the balance of probabilities that his assault was in response to a punch thrown by Mr Hind.
It may be that the defendant’s annoyance about the earlier drug deal played some part in an argument or misunderstanding that arose while Mr Hind was at his house. The significant amount of alcohol consumed by both the defendant and Mr Hind may also have played some part in what happened. But I am not able to make any finding to the requisite standard as to why, and in what circumstances, the defendant inflicted the fatal punches to Mr Hind’s head, and, in particular, the extent to which his assault was premeditated.
It follows that I am left in the somewhat unsatisfactory position of having to sentence the defendant on the basis that the reason or motivation for his unlawful and dangerous assault upon Mr Hind is unknown.