R v Thompson No. Sccrm-00-188

R v THOMPSON
[2000] SASC 452

Court of Criminal Appeal: Doyle CJ, Olsson and Bleby JJ

1................ DOYLE CJ....... In my opinion the appeal should be dismissed. I agree with the reasons given by Olsson J for dismissing the appeal. There is nothing that I wish to add to those reasons.

2................ OLSSON J....... This is an appeal against the conviction of the appellant, by verdict of a jury, of the crime of murder. The appellant asserts that the verdict was “unreasonable or cannot be supported having regard to the evidence”.

The charge against the appellant was that, on 18 October 1999 at Marleston, he murdered Jodi-Ann Trueman. I will simply refer to her as “Jodi”.
Jodi was a young woman of about 26 years of age at the time of her death. She was then residing at the City West Motel. She was a substantial user of heroin and she also dealt in that drug, presumably to support her own habit.
The accused, a young man now 29 years of age, was also a user of heroin. He resided at Unit 1, 33 Aldridge Crescent, Marleston. He first met Jodi about 4-6 weeks prior to 18 October 1999. He became aware that she dealt in heroin. About three weeks prior to her death she became his supplier. Thereafter he bought from her about twice each week. He would telephone her and ask whether she would like to come over for a cup of coffee. She would then arrange either to call at his flat at a specific time, or meet him elsewhere, for the purposes of supply.
Jodi drove a silver coloured Barina motor car. It was distinctive in that it had ACT number plates and had sustained body damage on the offside front corner.
At about 1.00 pm on 19 October 1999 Jodi’s body was observed in her parked car at Gladstone Road, Mile End. She was lying between the two front seats, with her head in the rear of the vehicle and the lower half of her body in the front.
On autopsy the following relevant observations were made with regard to Jodi’s body:-
There was clear evidence of manual strangulation. This consisted of bruising and abrasion to the front of the neck, the face was congested with blood, petechial haemorrhages were present on the face and in the covering of the eye and there was bruising of the right vocal cord. The external markings on the neck were very evident in the photographs tendered in evidence. These looked almost as if a ligature, such as chain jewellery which she was wearing, may have been pulled tight around the neck at some point.
An injection site was evident on the inside of the right elbow. There was fresh bleeding there to indicate a recent injection and other changes to indicate old injections in that location in the past.
There was bruising to the upper arms on both sides, consistent with Jodi having been held by someone, with a hand on each arm.
There was a deep, open laceration to the back of the head, which had given rise to profuse bleeding from the scalp. Considerable blood was evident in the hair. The wound was consistent with the head being hit with a blunt instrument or striking a hard surface, possibly in falling. Jodi was wearing a light coloured blouse and this was extensively stained with blood, particularly on the back, sides and sleeves. (Exhibit P3)
There was general bruising around the right eye (of the nature of a so-called “black eye”) with an associated small laceration near the eye lid. This was consistent with a blow to the eye, either by being hit by, or falling against, an object.
Both upper and lower lips were superficially lacerated, and there were a variety of recent minor abrasions and injuries to the shoulder, lower back, arms, legs and on the backs of the hands. Certain of these were consistent with defensive type injuries, sustained in a struggle.
Finally, fingernail scrapings were taken, but these did not reveal DNA other than in respect of Jodi herself.
It was the opinion of the pathologist that the neck injuries would not necessarily have been lethal in themselves, but that they indicated that there had been pressure applied to the neck, which could have given rise to a variety of outcomes. They may, or may not, have rendered Jodi unconscious, but they are also marks which indicate the possibility of death by strangulation.
The forensic witnesses reported that, upon analysis of Jodi’s blood, two matters of significance emerged. First, there was evidence that she had recently used cannabis, although no quantitative tests for THC (the active ingredient of that drug) were attempted. Second, very high levels of both free and conjugated morphine were present.
Jodi had clearly had a recent massive, lethal dose of heroin by injection. As Dr Byard expressed the situation, it is normally taken that a level of morphine of 0.1 milligrams per litre is lethal. Jodi’s blood analysis revealed 1.2 milligrams per litre, some 12 times what would normally be regarded as a lethal dose. He testified that he had conducted post mortem examinations on a large number of heroin addicts who had died of overdose. This was the highest level that he had ever encountered.
In summary, the pathologist said that he attributed death to respiratory failure - a non specific term. It was his opinion that two possibilities presented themselves - as he put it, “manual strangulation and/or an overdose of heroin”. “It could have been one, either, or a combination of those”.
In his summing up, the learned trial judge put it to the jury that, on the Crown case as presented, they could not find that the accused killed Jodi, unless they were first satisfied beyond reasonable doubt that he was responsible for both her manual strangulation and the administering of the heroin overdose. No issue was taken as to the propriety of such a direction. The jury verdict must be taken to indicate that they were so satisfied.
I now return to the evidence bearing on the narrative facts. Certain of the testimony concerning Jodi’s movements on the day of her death was not really in dispute, although some of it as to timings cannot possibly be correct.
The evidence revealed that, on that day, Jodi had been contacted by a number of her “customers”, seeking supplies of heroin. She was initially unable to supply them, because she, herself, had no heroin and was short of money. In the week preceding the day of her death she had told her former boyfriend that she was only just managing to scrape by and pay for her accommodation.
It is clear that, on 18 October 1999, she telephoned her father, who lives in Mildura, at about 11.45 am and asked him to transfer $100 into her bank account. He did so at about 12.30 pm. Earlier in the day, between about 9.15 and 10.30 am, Jodi had attended at Centrelink at Parkside and obtained $100 cash, ostensibly for a bond for rental accommodation.
There is also no doubt that, at a time between about 3.00 - 4.00 pm, she was visited at the City West Motel by the witness Long Van Nguyen. He was a somewhat reluctant witness, who was not very forthcoming. However, the plain inference was that he was her supplier of heroin. Her mobile telephone records indicate that she telephoned him on his mobile several times on 18 October. There were three particular calls at 2.36 pm, 3.10 pm and 3.29 pm. It was virtual common ground that he must have supplied her with a quantity of heroin by no later than 4.00 pm.
The witness Rachel Andrews said that she had contacted Jodi several times, wanting to purchase heroin. At about 11.00 or 11.30 am, Rachel actually visited Jodi in her motel room and paid her $50 in advance and gave her a food voucher from her place of work. Jodi had sounded “quite stressed and hassled” on the telephone. She said that she had to borrow $100 before she could purchase any heroin and that “that wouldn’t be occurring until about 2 o’clock in the afternoon”. Jodi also commented that she had not had any heroin herself that day. She seemed “a bit sick” in the morning.
Rachel telephoned Jodi at 2, 3 and 3.30 pm. At 3.00 pm Jodi told her that she had the money and was waiting for the dealer to ring back at 3.30 pm. Rachel was told to ring back at 4.00 pm. She did so. Jodi sounded a lot happier and a lot less stressed. She arranged to meet Rachel in 10 minutes.
According to Rachel, Jodi met her in front of Centrelink on Henley Beach Road at about 4.10 pm and handed over a cap of heroin. Jodi’s mobile rang at about that time and she said to Rachel “I’ve got to go, I’ve got so many people to meet”. She then drove off in the direction of the city. At that stage Jodi seemed quite relaxed and normal.
In the course of her evidence Rachel said that Jodi had changed her supplier to an Asian person several weeks earlier. Following that change the quality of the heroin seemed to improve by a factor of 20-25%. Rachel was buying the drug from Jodi on a daily basis.
The witness Nicholas Towler said that he telephoned Jodi at about 4.14 pm. She arranged to meet him and his girlfriend for the purposes of supply at the Central Market in about 20 minutes. She did not keep that appointment. He tried to call her at about 4.40 pm, but she did not respond.
At a time which she fixed as being shortly after 4.30 pm, the witness Deidre May observed the Barina parked on a brick paved area at the entrance to Hughes Street, off Railway Terrace, Mile End. The back end of the vehicle “was just jutting out a little bit onto Railway Terrace”. The driver’s side door was open, but no-one was in it. The appellant relied upon this situation as some evidence of erratic behaviour on the part of Jodi and as therefore indicating a probable earlier ingestion of a lethal dose of heroin. It is logically difficult to accept such a thesis. The situation was equally consistent with a hurried visit to deliver heroin to a customer.
The obvious inference was that Jodi was making a delivery in the area.
The witness Dionysia Frazis told the jury that she was the appellant’s landlady. The appellant occupied Unit 1, which abutted the Aldridge Terrace frontage of the property, whilst she resided at Unit 3, which was at the rear of the property.
At some time between 5.00 and 6.00 pm Mrs Frazis was out on the street front adjacent to Unit 1, sweeping up the footpath. She was waiting for members of her family to come for dinner. She observed a small car (which she thought was a blue colour) pull up in Aldridge Street in front of the lounge window of Unit 1. A young girl opened the door and ran fast past her, only a short distance away, to the front door of Unit 1. She was tall and skinny and wearing a blouse and trousers. Mrs Frazis was able to see the girl’s face. The girl was not bleeding and did not appear to have any facial injuries. Mrs Frazis did not notice anything unusual about her appearance.
In giving evidence Mrs Frazis thought that the girl’s hair was not very dark and may have had some length. However, in cross examination she conceded that she may have originally told the police that the girl had short, dark hair.
Mrs Frazis said that she did not actually observe the girl enter Unit 1 and went on with her sweeping.
She testified in chief that, almost immediately, she heard three or four screams, apparently emanating from Unit 1. She went over to the front door of Unit 1, but it was closed. She initially intended to knock on it, but did not do so, because she was scared. She finished her sweeping and returned to her unit.
In cross examination she agreed that she had told the police that she heard the screaming when she was actually walking back to her unit.
Mrs Frazis’ son Michael said that he returned home from work about 5.20 - 5.30 pm. The other family members arrived for dinner at about 6.30 - 7.00 pm. They left about 8.30 - 9.00 pm.
The witness Manuel Papageorgiou resided with his wife in Unit 6, 31 Aldridge Street, Marleston, which was on the neighbouring property, immediately adjacent to the rear of the unit occupied by the appellant. On an afternoon which he thought was a Monday or Tuesday he was driving home from a Greek coffee lounge and saw Mrs Frazis sweeping the footpath in front of the appellant’s unit. He thought the time was between 2.00 - 3.00 pm. It seems clear that he must have been mistaken as to this.
As he neared his unit he noticed a car about 10 metres ahead of his driveway. He saw a woman get out of the other car and rush into the driveway of 33 Aldridge Avenue. The woman was young, medium size, with short blonde hair. She was of thin build. Her vehicle was a light colour, four cylinder model with a little bit of a dent in the right panel.
Like Mrs Frazis, this witness noted nothing unusual about Jodi’s presentation. Had her blouse been extensively stained with blood, one would expect that this would have been obvious to him.
Mr Papageorgiou said that he entered his unit and was just telling his wife about what had occurred when he heard a noise ‘eeh”, which seemed to be coming from the rear of his unit. His unit was back to back with the appellant’s unit, across the dividing fence. He described the noise as a “Human voice, like a screaming voice, human voice, like something happen ... ”. His wife said that she remembered such an occasion and she heard one short, loud scream.
The witness Vicki Trikilis resided at Unit 2, next door to the appellant. She took her child for a doctor’s appointment during the afternoon of 18 October 1999 and thought that she returned between 4.00 and 5.00 pm. On her return, Mrs Frazis was still sweeping outside and there was a little silver hatchback parked out in front of Unit 1 in Aldridge Avenue. There was damage to the vehicle at the front.
Although she heard what she thought was a tap on the wall between 6.00 and 7.00 pm, she did not hear any screams or other noises. That is, of course, scarcely surprising, as the evidence of Mrs Frazis and Mr and Mrs Papageorgiou indicates that the screams must have occurred prior to Ms Trikilis’ arrival home.
The witness Taylor told the jury that his girlfriend resided at Unit 6, 36 Aldridge Avenue. He recollected that, at about 5.25 pm on a Monday evening in October 1999, he picked his girlfriend Sara up from work and drove her home. He parked across the road from her house in front of 31 Aldridge Avenue. He noticed a silver Barina parked behind his car. It had ACT plates, with some damage to the front. He had seen it in the vicinity a few times in the preceding couple of weeks. On this occasion the occupant was a male of stocky build, broad across the shoulders and with short dark hair. When Taylor came out about half an hour later the Barina was still there, but there was no one in it.
James Frazis, a son of Mrs Frazis, said that, on what must have been the evening of 18 October 1999, he and his wife and two children went to his mother’s for the evening meal. He finished his meal earlier than the others and, at about 7.00 pm, walked outside with a bottle of beer and a cigarette.
As he walked down the driveway he encountered the appellant, who was known to him, near the letter boxes on the Aldridge Avenue frontage. The appellant walked over to a small, bluish-silver car with front end damage. This was parked on the road, almost on the fence line in front of the units. He drove away in it. James returned to his mother’s unit and he and his family left at about 8.00 pm.
The witness Julie Bendall was employed, at the time, as a receptioniste at a medical clinic at 238 South Road, Mile End. She was acquainted with the appellant, who was a patient of that clinic. She told the jury that, at about 8.25 pm on 18 October 1999, the appellant attended the surgery. He said that he would like to see a doctor. When asked for his Medicare card and Health Care card he was unable to produce them. He was told that he had to produce one of them to facilitate bulk billing, or he would have to pay cash. He then left. Ms Bendall noted that, at the time, he was very pale and sweating.
At about 10.00 pm the same evening Mrs Frazis was in her unit. She heard a noise like a door being kicked back. She did not know where the noise came from. She spoke to her son Michael and asked him to go outside and see what was happening. He was in his bedroom, working at his computer.
Michael testified that he walked outside up the driveway to the vicinity of the letterboxes. He could see a little car and someone kneeling down. He then walked back down the drive and then around to the rear of the units and along the fence toward Aldridge Avenue.
When he got to about Unit 2 he saw a person who looked like the appellant kneeling down at the car. It seemed to him that the appellant was putting something big in the car. The left hand front door was open.
He had noted that the appellant’s back screen door was wide open and the kitchen light was on.
Michael then returned back to the driveway and again walked out towards the front. When he got near the letterboxes he called out “Garry, are you right?”, to which the appellant responded “Yep. I’m fine”. He noted at the time that one of the headlights and part of the bumper bar of the car had been damaged.
Michael said that he had seen the same car parked out the front, albeit a little closer to the driveway entrance, for most of the preceding Sunday afternoon.
The appellant gave evidence by affirmation. He testified that he did not go to work on 18 October 1999, because he “didn’t feel the best in the morning”. He stayed in bed until 11.00 am or 12.00 pm. At 1.30 pm he rang Jodi and said “I would like to know if you would like to come over for a coffee”. She responded that “she didn’t have anything and that she was waiting till later to pick up”. She told him to try her again at 2.30 pm. He telephoned her again at 3.30 pm. She said that “she had just got on” and would be around about 4.30 pm.
He asserted that she in fact arrived at approximately 5.30 or 5.45 pm. When he answered the door he noted that she had a cut on her head and a black eye. She “forced her way in”. She was yelling that she owed some money and she needed some money. They went into the kitchen and she gave him a cap of heroin in exchange for $50 in cash. He said to the jury that Jodi “was stoned. She wasn’t talking that well, she was just off her face on heroin”.
The appellant said that he told Jodi to go to the bathroom and clean herself up. He proceeded to mix a “taste” of heroin. As he did so he heard Jodi scream in the bathroom. He asked her if she was OK and she said “Yes”, she had just seen herself in the mirror and didn’t like what she saw.
The appellant said that he then administered the heroin to himself by injection. He went to the bathroom and saw Jodi cleaning herself with a chux cloth.
His evidence was that he then sat in the lounge on a futon chair. Jodi came in, saying that she owed heaps of money and could he help her. He said that he had $100 in his wallet and gave it to her, but demanded some collateral for the loan. She gave him her rings and watch, thanked him and said that she was afraid of the person to whom she owed money. No money was, in fact, subsequently found on her person.
The appellant testified that both he and Jodi were nodding off. He fell asleep on the futon. When he woke up some time later he saw Jodi lying on her back on the floor in the lounge room, next to the arm chair. She was white and he could not detect any pulse.
The appellant at all times denied having inflicted any injury upon her.
The appellant said that he “didn’t know what to do”. He noticed that her head was still bleeding. He moved her into the bathroom, because he did not want to dirty the carpet. He did not wish to call the police, because he was growing marijuana hydroponically. (There is photographic evidence that this was so.) He went outside about 7.15 pm and encountered James Frazis.
The appellant returned to the unit for a time. He later moved Jodi’s car closer to the rear access to his unit, picked her up and placed her in the car on the front passenger seat. He said that he originally proposed to take her to hospital, but there was not much petrol in the car. He realised that Jodi was dead. He agreed that, just as he finished loading Jodi into the car, Michael Frazis came out and asked “if that was me”.

The appellant’s evidence was that he first drove to a location near the doctor’s surgery and that the evidence given by Ms Bendall was correct. He then dialled “000”, but did not complete the call, because he was scared. The telephone records indicate that such a call was made at about 9.56 pm. This activity was plainly redolent of a person in panic.
The appellant abandoned the car where it was subsequently found, having wiped his fingerprints from the steering wheel and door handle. He returned to the unit and cleaned up the blood in the bathroom and kitchen with a mop and bucket. He placed Jodi’s rings, watch and mobile in his briefcase, where they were later found by the police. The SIM card had been removed from the mobile.
He went to work the next day.
The appellant denied ever administering any heroin to Jodi.
In cross examination he said that, after injecting himself with heroin, he washed the syringe out and placed it in the kitchen cupboard. There was no evidence that, when his unit was searched by the police on 23 October 1999, any syringe was found.
Apart from evidence of the narrative events, as above outlined, there were other various items of circumstantial evidence before the jury. For present purposes those of most importance were:-

.the appellant had been telephoning the Commonwealth Bank several times during the preceding week, enquiring about money coming into his account. As of Friday, 15 October 1999 the balance was only $6.70 after he made a withdrawal of $350 on that occasion.
.there was no sign of blood anywhere in the centre of the lounge carpet. The only traces of blood in that room were a spray of fine drops close to the built in fixture, near the point where the carpet ceases and one enters onto the vinyl tile surface of the kitchen annexe opening off the lounge.
.downward spots or splatters of blood were found in various locations in the kitchen annexe, the bathroom and at the back door. Smears of blood were evident on portions of the rear fence and the back gate.
.there were damp clothes of the appellant still in the washing machine. The drain holes for the washing trough and those for the hand basin and bath in the bathroom were all tested and found positive for blood.
.there were multiple blood stains found on a canvas work bag belonging to the appellant, which was seized at his place of work.
.a good deal of blood smears were evident on the front passenger’s seat of the Barina and in the rear of it, but only traces on the driver’s seat.
.there was a long drip of blood on the door jamb leading into the laundry of the unit. DNA analysis revealed that the primary donor was Jodi. However, there was also a minor DNA presence from some unknown male. This did not come from the appellant. It could have been present for a variety of reasons.

The Crown also drew the attention of the jury to the fact that, when interviewed by the police on 20 October 1999, the appellant told patent lies. He said that Jodi came to the unit about 6.00 pm. She was “off her face” and kept dozing off in the chair. She drove off again at about 8.00 or 8.30 pm. She said that she was going to see someone in Gladstone Road. She was depressed and worried about owing people money. The appellant made no mention to the police, at that time, of Jodi exhibiting any physical injuries.
The Crown suggested that these lies were evidence of a consciousness of guilt. The learned trial judge accordingly gave an appropriate direction to the jury based on Edwards v The Queen (1993) 178 CLR 193. There was no challenge as to this.
In essence, Ms Nelson, of senior counsel for the appellant, contended that the unanimous jury verdict of guilty was unsafe and unsatisfactory, because it could not fairly be said that the Crown circumstantial case had established beyond reasonable doubt both that the appellant had inflicted strangulation on Jodi and also administered a lethal dose of heroin to her.
She argued that:-
The evidence did not exclude the reasonable possibility that Jodi had self administered the heroin and that the overdose may have resulted from multiple doses of unusually high grade heroin. The presence of THC in Jodi’s blood suggests that her judgment may have been impaired at the time of her death. That, coupled with the evidence of the obvious delivery by Nguyen of heroin to Jodi by 4.00 pm and Rachel Andrew’s testimony of the change in Jodi’s demeanour by 4.10 pm, is highly suggestive of the probability that the latter administered heroin to herself shortly prior to meeting Rachel Andrews. Given the medical evidence that the full effects of an overdose are gradual in onset and might take up to three hours to occur (particularly with a regular, substantial user), it necessarily remained a possibility that Jodi had, herself, overdosed - possibly unwittingly. It seems most likely that the heroin overdose was the actual cause of death.
There is no specific evidence that suggests that the appellant did inject Jodi with any heroin. The bruise on Jodi’s right inner elbow was in a location which is commonly used as a site for self injection.
At its highest, the circumstantial evidence is not adequate to inculpate the appellant as the person who administered the heroin.
Not only were there no samples of DNA under Jodi’s fingernails linking the appellant with any attack on her but, also, the presence of DNA from an unknown male in the blood on the laundry door jamb indicates the possibility of involvement of some third person.
The evidence of Mrs Frazis must be regarded as unreliable, because her description of Jodi having short, dark hair was obviously incorrect, she made no mention of the presence of the witness Manuel Papageorgiou, she really did not take a great deal of notice of the young girl, and her description of three screams is impossible to reconcile with the evidence of Mr and Mrs Papageorgiou. It is therefore quite possible that Jodi had, in fact, been attacked prior to arrival at the appellant’s unit.
No motive had been established as against the appellant. His evidence as to purchase of the heroin from Jodi and the lending of money to her remained a reasonable possibility.
Even a rejection of the appellant as a credible witness does not affect what was said to be “the inherently unsatisfactory nature of the Crown evidence”.
I have given careful consideration to all of these criticisms, some of which have a superficial attraction. However, I have concluded that they cannot withstand serious scrutiny. At the end of the day I conclude that the jury verdict was well open on the whole of the evidence.
First, I find the criticism of the evidence of Mrs Frazis unconvincing. True it is that her description of Jodi’s hair was inaccurate - a situation which is not uncommon with identification type witnesses. However, there can be no doubt that the person seen by her was Jodi and that Jodi passed quite close to her. Bearing in mind Jodi’s overall appearance after the assault on her, as revealed by the post death photographs, it is beyond acceptance that Mrs Frazis would not have noticed her injuries had Jodi exhibited them prior to entry into the appellant’s unit, or that her blouse was covered in extensive blood stains. Moreover it is not to be forgotten that Jodi was also seen to arrive by Mr Papageorgiou, although his memory of time was obviously incorrect. He also did not note any sign of abnormal presentation.
This evidence was very important, because it ran directly counter to the narrative proffered by the appellant.
This is the more so when, as Mr Millsteed, of senior counsel for the Crown, emphasised, it is borne in mind that:-

.there was little sign of blood on the driver’s seat of the Barina;
.there was no suggestion that Jodi had sought any treatment for what were quite nasty injuries, which included what was obviously a freely bleeding head wound; and
.on the assumption that she had sustained the injuries prior to arrival at the appellant’s unit, it is highly probable that she would already have seen her facial appearance in the rear vision mirror of the Barina.

Such a combination of considerations renders the explanation of her scream whilst in the unit somewhat difficult to accept.
By the same token, if it was the situation that it was the appellant who inflicted the injuries on Jodi after she had arrived at the unit, it would seem quite an extraordinary coincidence that she was already carrying a lethal dose of heroin and, notwithstanding her condition, had been able to successfully drive her vehicle there and make the prior deliveries referred to in evidence.
Second, given that situation and the general scenario which I have outlined, the lies told by the appellant to the police when he was interviewed assume great significance. There were compelling reasons why a jury, properly instructed as they were, should conclude that the story told by the appellant to the police revealed a knowledge by him of the offence and that he told a false story because he realized that the truth of the matter about which he lied would implicate him in the crime, or because of a realization of guilt and a fear of the truth.
Third, I remain unconvinced, on a careful review of the evidence, that there remains a reasonable possibility that Jodi self administered the massive overdose of heroin which she undoubtedly received. In the first place she was a long term, experienced, substantial user of the drug. Moreover, she had been dealing with Nguyen for some weeks and was well aware of the quality and strength of the product which he was selling. Additionally, on any view of the evidence, she only had limited opportunity to inject herself after 4.00 pm and prior to going to the appellant’s unit.
Apart from the fact that she no longer seemed stressed and hassled by 4.10 pm, she appeared quite normal and lively. She was driving her car and had a series of deliveries to make. She moved in a lively fashion and was, in no sense, unco-ordinated. The appellant was the only person who suggested that she presented in an abnormal fashion.
Dr Byard, the pathologist, testified that it was impossible to say whether the heroin overdose had been administered in one, or more than one, dose. All that could be said with certainty was that it had been ingested during life and that the body had commenced processing it. Jodi would have become drowsy, then fallen asleep, gone into a coma and eventually died. He expressed the view that it is impossible to predict how rapidly death will occur. Sometimes it is almost immediate. In other cases a person may well go to sleep for some hours, before they stop breathing. With the dose received by Jodi, Dr Byard would have expected that she would become drowsy and her ability to drive would be impaired.
Dr White told the jury that a lethal dose of heroin can result in death within minutes, or may take several hours. In general the subject would become gradually more sedated, drowsy and lacking in co-ordination.
On the medical evidence, if it was the fact that the overdose had been injected by (say) at or shortly after 4.00 pm, it seems impossible, on any view, that, as at the time when she arrived at the appellant’s unit, Jodi would have been in the condition in which she was observed by those witnesses who observed her arrival. This is equally probable if the ingestion was even somewhat later.
In short there was ample evidence on which the jury could fairly find beyond reasonable doubt both that the assault on Jodi and the administration of the overdose must have occurred whilst she was at the appellant’s unit. Bearing in mind the obvious lies told by him and the clear inferences arising from them, the evidence of screams and the appellant’s conduct in disposing of her body, satisfaction beyond reasonable doubt that the appellant both assaulted Jodi and administered the overdose was a logical, if not inevitable, outcome.
The appellant conceded that Jodi died at his unit. It is a compelling inference that, if it was he who inflicted the various physical injuries on her and that this occurred at the unit, then he also administered the overdose of heroin to her.
It is true that the Crown did not set out to establish any specific motive for conduct such as that alleged against the appellant, nor was it legally incumbent on it to do so. However, as was put by Mr Millsteed QC, the jury was entitled to bear in mind that the appellant was an addict and obviously short of money. A quite reasonable scenario may well have been that he was unable to pay for a score and Jodi refused him - causing him to lose control. A possible assault upon and drug administration to her was by no means inexplicable in the circumstances. As Professor White testified, aggression is a symptom associated with heroin withdrawal.
It must be conceded that the presence of the strange DNA from the blood sample on the laundry door frame is a curious feature. However, as Mr Millsteed QC pointed out, there are many possible explanations for it. It is equally consistent with a male person having made contact with the door frame at some earlier point in time as with such a person having made contact with Jodi’s blood in such a way as to allow admixture of his DNA with her blood. If it were the latter, it is surprising that no other trace of such DNA was found in any of the many samples of Jodi’s blood found in or around the appellant’s unit or in Jodi’s car. It is difficult to see how, logically, it can give rise to a situation which invalidates the drawing of inferences which otherwise naturally arose from the evidence presented at trial.
In my opinion the appellant has fallen far short of demonstrating that the verdict returned was unsafe or unsatisfactory. On the contrary, there is every reason to conclude that the jury, having been fully and properly directed by the learned trial judge, returned a verdict well warranted by the evidence.
I would dismiss the appeal.

85.............. BLEBY J........................ I agree that the appeal should be dismissed. I agree with the reasons given by Olsson J.

[2000] SASC 452

22 December 2000