R v Trussell - [2021] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v TRUSSELL
Criminal Trial by Judge Alone
[2021] SASC 106
Reasons for the Verdict of the Honourable Justice Bampton
10 September 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
Accused charged with murder of his partner – accused pleaded not guilty to murder but guilty to manslaughter and elected to be tried by Judge alone – whether the prosecution proved beyond reasonable doubt that the accused had the specific intent for murder – whether the prosecution has disproved self-defence beyond reasonable doubt – whether the prosecution has disproved provocation beyond reasonable doubt – whether the prosecution excluded all rational hypotheses consistent with innocence.
HELD: The accused is guilty of murder.
Criminal Law Consolidation Act 1935 (SA) s 11, Part 8A; Criminal Procedure Act 1921 (SA) s 124, referred to.
Barca v The Queen (1975) 133 CLR 82; The Queen v Baden-Clay (2016) 258 CLR 308; Masciantonio v The Queen (1995) 183 CLR 58; Wilson v The Queen (1970) 123 CLR 334, considered.

R v TRUSSELL
[2021] SASC 106
Criminal: Trial by Judge Alone

BAMPTON J: Closed circuit television footage (“the footage”) from the Mount Gambier hospital, recorded at 6.46 am on 13 December 2018, depicts a woman entering the emergency department, retrieving a wheelchair, and pushing it out toward the carpark of the hospital. At 6.48 am, the footage depicts the woman pushing a person appearing “very, very unwell”[1] slumped in the wheelchair into the emergency department.[2]
[1] Evidence of Dr Karen Heath, forensic pathologist, T175.32.
[2] Exhibit P20.
Mount Gambier hospital medical records confirm the person in the wheelchair was Eden Kennett, who subsequently died at the Royal Adelaide hospital.[3] Ms Kennett’s cause of death was determined by a forensic pathologist to be hypoxic-ischaemic encephalopathy (hypoxic brain injury) due to prolonged hypotension (low blood pressure) and hypoperfusion (shock) of the brain resulting from laceration of the liver and hemoperitoneum (haemorrhage into the abdominal cavity).[4]
[3] Exhibits P11 and P12.
[4] Exhibit P3, page 2.
Ms Kennett had been driven to the Mount Gambier hospital by Bradley Trussell. The woman who pushed Ms Kennett in the wheelchair to the emergency department was Mr Trussell’s sister, Chloe Trussell. Ms Kennett, who was aged 25, was in a relationship and living with Mr Trussell as at 13 December 2018.
Following a police investigation, Mr Trussell was charged with the murder of Ms Kennett.
The plea to manslaughter
Mr Trussell, who elected for trial by Judge alone, pleaded not guilty to murder, but guilty to manslaughter upon his arraignment at the commencement of trial. The plea to manslaughter was not accepted by the Director and the trial on the charge of murder was heard by me sitting alone in Mount Gambier and then Adelaide.
Presumption of innocence
Mr Trussell comes into this Court with the presumption of innocence in his favour. He is innocent on the charge of murder, unless and until the prosecution has proved his guilt on that charge beyond reasonable doubt. The burden of proving that charge lies wholly on the prosecution.
Murder
To prove murder, the prosecution must prove the following four elements beyond reasonable doubt:
1That Mr Trussell’s act or acts caused the death of Ms Kennett;
2That Mr Trussell’s act or acts were voluntary and deliberate;
3That Mr Trussell acted with the intention to kill or cause grievous bodily harm. By the term grievous bodily harm, I mean really serious bodily harm. That intention must be present at the time that the act or acts that caused the death of Ms Kennett were committed. This element is often referred to as the specific intent required to prove murder; and
4That Mr Trussell acted unlawfully.
The prosecution case
Mr Trussell and Ms Kennett were in a relationship as at 13 December 2018 and living at Mr Trussell’s rented premises at 30 Laird Street, Mount Gambier. The prosecution contended the relationship was marred by violence predominately inflicted upon Ms Kennett by Mr Trussell.
It is the prosecution case that whilst Ms Kennett was suffering the effects of an earlier beating at the hands of Mr Trussell, he subjected her to a subsequent fatal beating in the late hours of 12 December 2018 or early hours of 13 December 2018 (“the fatal beating”). It is the prosecution case that the fatal beating comprised multiple blows causing injuries, some of which were inflicted by use of a pole and some of which required a severe degree of force. The prosecution alleges that, at the time of the fatal beating, Mr Trussell deliberately assaulted Ms Kennett intending at the very least to cause her grievous bodily harm, and in doing so caused her death.
The defence case
Mr Trussell admits he caused Ms Kennett’s death.
It is Mr Trussell’s case that there is an absence of any direct evidence about the circumstances of Ms Kennett’s death from which inferences may be drawn and the prosecution has not established beyond reasonable doubt that he had the requisite intent to allow the Court to return a verdict of a guilty to murder.
Assessment of Mr Trussell and the witnesses
Mr Trussell gave evidence. I direct myself that, in considering his evidence, I should give him credit for giving evidence and subjecting himself to cross‑examination. I should consider his evidence in the same way as I must consider the evidence of all witnesses. In assessing the evidence of the witnesses, including Mr Trussell, I have considered their evidence in the context of other evidence in the case. I have considered their evidence under cross‑examination and applied my judgement to the evidence. I can believe or disbelieve, rely or not rely upon, all or part of a witness’s and Mr Trussell’s evidence.
Expert witnesses
I direct myself about the expert evidence given by the forensic pathologist, Dr Karen Heath; the forensic scientist, Dr Pamela Feitz; the pharmacologist, Prof Jason White; and the crime scene investigator, Brevet Sergeant Peter McKenzie. The evidence of the expert witnesses must be considered together with the evidence of other witnesses. Ultimately, I must determine what of their evidence I accept, what weight is to be given to it, and any inferences and conclusions that arise from the evidence.
The record of interview
As part of the prosecution’s evidence, I saw a recording of a police interview of Mr Trussell. I may accept some parts of what Mr Trussell said, and reject other parts. I must decide what weight I give his statements, and I am entitled to give different weight to what he said at different times in the interview.
Lies
In this case, Mr Trussell admitted he lied about certain matters during his interview with police on 13 December 2018. The lies are not relied upon by the prosecution as consciousness of guilt. I can treat Mr Trussell’s lies as relevant to his credit when I consider what weight I give to his evidence. I cannot use a conclusion I may arrive at that Mr Trussell has told lies as evidence of guilt. Finding he has lied may affect my assessment of what he has said, but it does not, of itself, add to the prosecution’s evidence. I must keep in mind that, even if I reject all of Mr Trussell’s evidence, I must carefully assess whether the prosecution has proved its case beyond reasonable doubt.
The violent relationship evidence
Evidence was given by witnesses called by the prosecution regarding their observations of bruising around Ms Kennett’s eyes and limbs prior to 13 December 2018. I also received into evidence transcript of text messages between Mr Trussell and Ms Kennett and transcript of text messages between Mr Trussell and his sister Chloe Trussell. The text messages reveal a dysfunctional and toxic relationship between Mr Trussell and Ms Kennett. Certain messages sent by Mr Trussell to Ms Kennett include threats of or a reference to violence.
This violent relationship evidence was led because “in being called upon to decide whether” I am “convinced beyond reasonable doubt” that Mr Trussell is guilty of murder I “would require to know what was the relationship between”[5] Mr Trussell and Ms Kennett.
[5] Wilson v The Queen (1970) 123 CLR 334 at 344 (Menzies J).
The prosecution submitted this evidence has the following specific permissible uses:
·it explains how Mr Trussell and Ms Kennett came to be in circumstances alone where Mr Trussell was in a position to inflict the fatal beating without fear of interruption or detection;
·it supports the inference that the relationship between the pair had deteriorated at the time the fatal beating was inflicted; and
·it is relevant in assessing any possible innocent explanation for Ms Kennett’s injuries. For example, it is a relevant factor heavily weighted against any suggestion that Ms Kennett’s injuries were self-inflicted or the result of some other accident (such as Mr Trussell accidentally dropping Ms Kennett).
I have not used this evidence to reason that because Mr Trussell threatened harm or inflicted injuries on Ms Kennett on prior occasions, he is likely to or is the type of person to commit the offence of murder.
The issue of specific intent
Mr Trussell has admitted his act or acts caused Ms Kennett’s death and that his act or acts (except for his evidence as to dropping Ms Kennett) were voluntary and deliberate.
The question for my determination is: has the prosecution established beyond reasonable doubt that Mr Trussell held the intention of inflicting (at least) really serious bodily harm when he committed the act or acts which were a substantial cause of Ms Kennett’s death.
The prosecution must prove that at the time Mr Trussell performed the act or acts, the effect of which were to lacerate Ms Kennett’s liver causing her death, he intended to kill her or cause her grievous bodily harm.
Circumstantial evidence
The prosecution case against Mr Trussell is circumstantial. As such, the prosecution must exclude all reasonable hypotheses consistent with innocence. I must be satisfied the requisite specific intent is established by inference from the proven facts and circumstances. I must apply the well-settled principles concerning cases that turn upon circumstantial evidence.[6] In Barca v The Queen, Gibbs, Stephen and Mason JJ said:[7]
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King[8]. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen[9]; see also Thomas v The Queen[10].
(Footnotes in original)
The High Court reiterated this in The Queen v Baden-Clay:[11]
For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”[12] (emphasis added). Further, “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”[13] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal[14].
(Emphasis and footnotes in original)
[6] The Queen v Baden-Clay (2016) 258 CLR 308 at [49].
[7] (1975) 133 CLR 82 at 104.
[8] (1911) 13 CLR 619 at 634.
[9] (1963) 110 CLR 234 at 252.
[10] (1960) 102 CLR 584 at 605-606.
[11] (2016) 258 CLR 308 at [47].
[12] Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104.
[13] R v Hillier (2007) 228 CLR 618 at 637 [46]; (footnote omitted).
[14] R v Hillier (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535.
The conclusion I arrive at must be based on evidence I find proven. I must not engage in speculation or conjecture. Any reasonable hypothesis of innocence must be available on the evidence.
In approaching the circumstantial evidence, I must first consider the facts upon which the prosecution relies as circumstantial evidence and decide which facts I accept as established by the evidence. In proving intention, the prosecution asks me to draw an inference. I must look at the surrounding circumstances and decide whether I am satisfied beyond reasonable doubt that the prosecution has proved, at the time Mr Trussell performed the act or acts which caused Ms Kennett’s death, Mr Trussell intended to kill her or cause her grievous bodily harm.
Mr Trussell is not to be found guilty of murder unless there is no reasonable explanation for all the accepted evidence other than that he is guilty of the offence. If there remains any reasonable hypothesis or reasonable explanation consistent with his innocence he must be acquitted. Put another way, if there is a reasonable possibility his intention was anything less than an intention to kill or to cause grievous bodily harm then he must be acquitted of the charge of murder.
The evidence
The Mount Gambier hospital records
The Mount Gambier hospital unplanned patient attendance record dated 13 December 2018 at 0656 hours records that Ms Kennett was brought in a wheelchair by a friend and that a “code blue called”.[15] Under this entry the following record appears:
[15] Exhibit P11.
0845 Written in retrospect. Gaspy resps, bruising to face eyes and both arms. Vomit evident in hair – clothes cut off. No response to voice only stimuli
… Dressed in Jumper, cut off, bra, cut off & track trousers …
Under progress notes dated 13 December 2018:
ED Nursing: AM Shift: Arrived to Resus:
…
Skin: Bruised all over the body with facial bruises …
Another nursing note records:

13/12/18

1549

NURSING RETROSPECTIVE: Patient handed over at 0800hrs from night team …

…

Patient noted to have extensive bruising over entire body, head (L) side), face, neck, chest, arms, hips & legs; some bruising also noted to inside of mouth & lips. No open wounds.

Following CT scan examination performed at 0848 and surgical review:

13/12/18

915

…

CONS SURGEON

…

CT – Diffuse cerebral injury severe

No bleed, no immediately obv #

– Neck- no glaring injury
– Chest- ? ® lower rib #
– Abdo- free fluid? Liver laceration

(needle paracentesis RIF-blood)

– Situation is of severe, probably irrecoverable head injury with likely intra-abdominal bleed from liver laceration.

At 1505 hours on 13 December 2018, Ms Kennett was handed over to MedStar and flown to the Royal Adelaide Hospital.

At 2015 hours on 13 December 2018, a police officer took 86 photographs of Ms Kennett at the Intensive Care Unit of the Royal Adelaide Hospital.[16]
[16] Exhibit P13.
Dr Karen Heath – the autopsy findings
The forensic pathologist, Dr Karen Heath, was notified by the Coronial Investigations Section that Ms Kennett was in the Royal Adelaide Hospital (“the RAH”), not likely to survive, and as organ donation was being considered organ retrieval surgery may occur.
At 1420 on 14 December 2018, Dr Heath attended the intensive care unit where Ms Kennett was intubated and ventilated. Dr Heath noted on examination Ms Kennett had obvious bruising around her right and left eyes and on the right side of her jaw. She also noted bruising of the upper lip, bruising of the right side of the upper chest and multiple bruises on the upper and lower limbs, including a patterned bruise on the medial aspect of the upper right thigh. The purpose of examining Ms Kennett before organ retrieval surgery was for Dr Heath to have clear in her mind what injuries were present prior to surgery so she could separate those from any marks that might occur during the process of surgery.
At 0435 hours on 15 December 2018, Dr Heath accompanied Ms Kennett’s body to the operating theatre and was present as an observer during surgical retrieval of organs for the purposes of organ donation. On opening of the abdomen, bruising to the anterior abdominal wall was identified and 1.4 litres of liquid blood and 850 grams of clotted blood were present in the abdomen. There was no injury to the spleen. The liver was lacerated between segments 2 and 3 in the region of the attachment to the falciform ligament and there was no evidence of renal injury. There was no evidence of cardiac injury. The aorta was clamped at 0505 hours, prior to removal of the organs and surgery was complete at 0545 hours. It was Dr Heath’s opinion the amount of blood seen in the abdomen was a substantial amount of blood.
The cause of death
Dr Heath’s opinion was Ms Kennett’s cause of death was hypoxic‑ischaemic encephalopathy due to haemoperitoneum to liver laceration. Dr Heath explained that encephalopathy is damage to the brain. Hypoxic‑ischaemic means there has been inadequate blood flow to the brain, resulting in lack of oxygen which has caused the injuries to the brain. This has occurred because of a haemoperitoneum, which refers to an abdomen containing blood, which in Ms Kennett’s case was due to laceration of her liver. Dr Heath said a laceration is an injury that results from blunt force trauma from tissue splitting under the effects of blunt force being applied to that tissue. She stated that moderate force was required to lacerate the liver in this case. Dr Heath was unable to say what type of blunt force caused the laceration.
Dr Heath explained that Ms Kennett was declared brain dead at 0850 hours on 14 December 2018. However, through artificial ventilation and respiration, her heart and lungs continued to function until her aorta was cross‑clamped at 0505 hours on 15 December 2018. Thus, time of death is when the blood flow to those organs stopped at 0505 hours on 15 December 2018.
Dr Heath understood that Ms Kennett presented at the Mount Gambier hospital for treatment at around 7.00 am on 13 December 2018. She said:[17]
A.Again I can’t give a precise time, but based on her presentation at Mount Gambier Hospital, again I would say that that liver injury had occurred in the degree of some hours before her presentation. I can’t give a number of hours, but it wasn’t seconds or minutes.
Q.Could it have been days.
A.No.
HER HONOUR
Q.Is it too much to say 12 hours, 18 hours, it’s within a 24-hour period.
A.I would say it would be less – certainly not towards the 18-24. It would probably be more around the – somewhere between 2-8, 2-10 and a 3-10, somewhere more in that kind of earlier timeframe. …
[17] T175.10-23.
Dr Heath explained whilst the liver is a very vascular organ which breathes freely; it breathes under low pressure and it would have taken a period of time for blood to ooze out of it to a volume significant to cause symptoms and then injury to the brain. It would have taken a period of a few hours for the blood to accumulate and then for her body to not be able to compensate and to become so unwell. Dr Heath said by the time Ms Kennett arrived at the Mount Gambier hospital, she was “clearly already very, very unwell”.[18]
[18] T175.32.

Dr Heath noted it was recorded in the Mount Gambier hospital records that upon presentation Ms Kennett was unresponsive; her pupils were fixed and dilated, her Glasgow coma score was six (noting that the minimum that it can be is three), she had low blood pressure, an elevated heart rate, and her temperature was dropping. Dr Heath reported in her report dated 3 February 2020:[19]
She was noted to have vomitus in her hair and multiple bruises were evident on the body. She was intubated shortly after arrival and treated with inotrope medication to maintain her blood pressure. A CT scan at Mt Gambier Hospital was reported to show a small amount of subarachnoid blood, best seen along the falx and the extra-axial spaces toward the vertex/ There was evidence of diffuse global hypoxic insult with loss of the grey-white matter differentiation and generalised hypodensity of the brain. A scalp haematoma was noted but no convincing skull fractures were seen. A CT scan of the chest showed left lower lobe atelectasis/collapse. There were left-sided infero-lateral rib fractures of ribs 8, 9 and 10. Abdominal CT scan showed a high-grade liver injury involving the liver hilum with low density areas about the falciform ligament, most likely representing intraparenchymal haemorrhage. There was evidence of haemoperitoneum.
[19] Exhibit P3, page 3.
Dr Heath said multiple blood tests performed soon after Ms Kennett’s presentation suggested she had been unwell for a period of time prior to coming to hospital. The blood test results indicated attempts by Ms Kennett’s body to compensate for blood loss.
Dr Heath also reported that CT scans were repeated upon Ms Kennett’s arrival at the Royal Adelaide Hospital. She noted the repeat CT scans of the chest:[20]
… showed multiple rib fractures located at the anterior 7^th – 10^th on the left, fractures on the right at the 3^rd rib and ribs 9 – 11. Additional bilateral 2^nd rib fractures were identified adjacent to the sternum and there was a minimally displaced manubrium fracture. A CT scan of the abdomen showed liver lacerations involving segments 2, 3, 4a and 4b. The lacerations were accompanied by haematoma.
[20] Exhibit P3, page 4.
Dr Heath explained the first symptoms of the type of liver injury suffered by Ms Kennett would have been pain and then, as blood loss continued, she would likely have felt weak, potentially dizzy, and very reluctant to move. Dr Heath said someone observing a person with liver injury would notice the person become maybe pale as blood loss continued over time, then their conscious level would start to decrease as they lost even more blood, and then they would become unconscious.
Dr Heath said she noted at autopsy there was no bruising on the skin overlying the region of the liver. She would not necessarily expect there to be such injury in circumstances where blunt force trauma has caused the liver injury. She said it does depend on what has caused the blunt trauma, as well as the clothing or anything else that might be covering the surface of the body. She said force applied over a large area does not necessarily leave a mark on the skin. This is not an uncommon observation, particularly in the more common scenario of a vehicle accident where there may be catastrophic internal injuries with minimal external marking. Dr Heath noted, as the surgeons were opening the abdomen, there was clear bruising to the anterior abdominal wall in the region of the liver in the muscles underneath the skin and fat. Dr Heath said that observation of bruising supported the proposition that the 70mm liver injury was caused by blunt force trauma.
Dr Heath was asked about the substance GHB that was detected in a blood sample taken from Ms Kennett. Dr Heath said a relatively low level of GHB was detected and it did not contribute to Ms Kennett’s death.
The subarachnoid and subdural haemorrhages noted at autopsy
Dr Heath gave evidence of injuries to the brain identified on neuropathological examination which included subarachnoid haemorrhages, bilateral thin film subdural haemorrhages, and older organising subdural haemorrhage. Dr Heath explained these injuries are bleeds around the surface of the brain. She said the arachnoid is a very, very thin, fine layer covering the brain and a subarachnoid haemorrhage is bleeding between the arachnoid layer and the brain. Dr Heath explained:[21]
Subdural haemorrhages are haemorrhages below the next kind of layer out from the arachnoid. So, the arachnoid is covering very closely to the brain tissue, then the next layer out is the dura, and there is a very small space between the dura and the brain, and tiny little blood vessels run between the dura and the brain, and so if those blood vessels are torn, then blood accumulates in that space, and causes pressure to be applied, increases the pressure on the brain.
She said the recent subdural haemorrhage would have occurred up to 72 hours prior to the time of death at 1505 hours on 15 December 2018, and the older subdural haemorrhage would have occurred beyond 72 hours of death.
[21] T179.8-16.
Dr Heath explained subdural haemorrhages are traumatic injuries that indicate trauma to the head. The trauma can be blunt force injury or it can be anything that causes an acceleration/deceleration injury to the brain, which results in sheering of the blood vessels between the dura and the brain. For example, a rapid forwards movement followed by a rapid backwards movement, in which the brain moves within the skull and shears the blood vessels, can cause a subdural haemorrhage. Dr Heath said there were several bruises to Ms Kennett’s head and the face, including to the forehead, the eyes, and the cheek. She said any of those injuries may indicate the application of blunt force to the head which could have caused subdural haemorrhages. She said it was not possible to say which bruise because they are not localising injuries; a blow to one side of the head could cause a subdural haemorrhage as equally possible as a blow to the opposite side of the head. Dr Heath was unable to state what degree of force would be necessary to cause a subdural haemorrhage.
Dr Heath said patchy subarachnoid haemorrhage is bleeding over the surface of the brain which can occur through natural disease, however, there was no evidence of natural disease in Ms Kennett’s case. Dr Heath concluded the subarachnoid haemorrhage seen at autopsy was traumatic in nature and could be the result of blunt force or represent an acceleration/deceleration injury. Dr Heath agreed that whatever caused the subdural haemorrhage could have, at the same time, caused the subarachnoid haemorrhage. It cannot be inferred that they occurred from two separate events.
Dr Heath agreed it could be inferred that there has been at least one occasion of recent blunt force trauma to the head and at least one occasion of older blunt force trauma.
The bruises noted at autopsy
Dr Heath gave evidence about the bruising injuries she observed on Ms Kennett’s body. Dr Heath said a bruise is caused by blood vessels ruptured under blunt force bleeding into tissues in the skin. She said there would have been a very small amount of additional blood loss into the bruises into the skin, but that would not have significantly contributed to the amount of blood loss from the liver. She said it is possible for a person to die from blood loss into bruises alone, but the bruising required in those cases is substantially more than that observed in Ms Kennett.
Dr Heath numbered the bruising injuries noted at autopsy 1 to 43. Dr Heath said there is no particular degree of force required to cause bruising. She said that in very general terms a bruise that has evidence of yellow colouration can be said to be older, but even that is subjective as what one observer may call yellow is different to another observer. Dr Heath said there is no parallel between how bad a bruise looks and the force required to cause it.
Dr Heath explained that in exhibit P2, the photographs taken at autopsy, the numbers drawn on Ms Kennett’s body correspond to the numbers detailed in her report.
For example, injury 2 in photo 11 is a bruise to the right eye and injury 3 in photo 12 is a bruise to the left eye, commonly identified as black eyes.
Dr Heath gave evidence about the injuries she observed that had a tram track appearance. Dr Heath explained a tram track bruise is a bruise that has two roughly parallel lines with an area of pallor or clearing in the middle. These bruises are quite characteristic of injuries inflicted by some type of rod or bar-like or lineal structure. Injury 42 located on the posterior-medial mid right thigh had a tram track appearance. Dr Heath was asked whether exhibit P4, the stick with thorns at one end, could have caused this injury. She said it was possible, however, there was no evidence to suggest the part of the stick with the thorns had been used in that injury, or any injury. She was asked whether exhibit P5, the 10 kg dumbbell and in particular the bar joining the bells, could have potentially caused injury 42. She said it was possible.[22]
[22] The stick with thorns at one end (exhibit P4) and the 10 kg dumbbell (exhibit P5) were located in the kitchen of Mr Trussell’s house by crime scene investigators.
Dr Heath said the bruise in injury 28 was vaguely linear and it was possible it had been inflicted by a bar-like or rod-like structure. She said it is not as clear‑cut as injury 42, and it could have been caused by something other than a linear object. Dr Heath said injuries 38 and 39 were also vaguely linear and injury 39, in particular, had a suggestion of a tram track appearance but was not as clear as injury 42. Dr Heath said they may have been inflicted with a rod or bar‑like structure, although they could have been inflicted with something else as well.
Dr Heath said that apart from injuries 28, 38, 39, and 42, there were not any other injuries that had characteristics that might inform the nature of blunt force trauma that had caused them.
Dr Heath explained that samples were taken from most of the injuries she noted in her report[23] for histological examination. Dr Heath said that in performing histological examination she looks for blood which has oozed out of blood vessels to confirm whether the injury was actually a bruise or not. Inflammatory cells are also looked for, noting that the purpose of inflammatory cells in the setting of an injury is to try and heal the injury. The purpose of histological examination is to look for scavenger cells which are present later in the healing process. Dr Heath said that different inflammatory cells appear at different stages in the process of healing in an effort to strip the injury, heal the injury, and lay down fresh tissue.
[23] Exhibit P3.
Dr Heath said the presence of a particular inflammatory cell could provide a very rough estimate of what stage of the healing process a bruise was at. Dr Heath said neutrophils tend to appear first, followed by mononuclear inflammatory cells, and then haemosiderin. Dr Heath explained that haemosiderin is a breakdown of iron in blood – and when there is a bruise, macrophages – which are a kind of scavenger cells – will try and scavenge the dead blood cells that have seeped out into the tissue and recycle the iron. Haemosiderin develops 72 hours after the occurrence of an injury. Histological examination revealed that Ms Kennett had injuries where haemosiderin was present and other injuries where haemosiderin was not present. In Ms Kennett’s case the presence of haemosiderin in an injury indicates the injury occurred more than 72 hours from the time her aorta was clamped at 5.05 am on 15 December 2018 (except in the instance where there has been a new injury on top of an old injury). The absence of haemosiderin in an injury indicates the injury has occurred less than 72 hours before death.
Exhibit P6 lists the injuries reported by Dr Heath where haemosiderin was present and injuries where no haemosiderin was present. Haemosiderin was not found to be present in:

Injury Number

Location of Injury

Description of Injury in Dr Heath’s report[24]

5

Left side of chin

20 x 10 mm faint bruise, left side of chin. Sampled for histology.

8

Left chest

40 x 30 mm faint blue bruise, left upper chest approximately 4 cm to the left of the midline and 6 cm below the clavicle. Sampled for histology.

12

Right upper arm

40 x 40 mm purple bruise, right upper arm, approximately 8 cm below the tip of the right shoulder. Sampled for histology.

13

Right upper arm

65 x 35 mm mottled purple bruise, [right] upper arm approximately 14 cm from the tip of the right shoulder. This bruise had a vaguely rectangular shape with slight clearing at the superior margin. Sampled for histology.

14

Outer aspect of right upper arm

Vaguely rectangular purple bruise measuring 30 x 40 mm, outer aspect right upper arm approximately 17 cm from the tip of the right shoulder. Sampled for histology.

17

Right forearm

Poorly defined purple red bruise measuring 60 x 45 mm located on the volar aspect of the right forearm, approximately 3 cm below the right elbow. Sampled for histology.

20

Left upper arm

150 x 120 mm variegated bruise, left upper arm. The bruise was almost circumferential around the left upper arm with sparing of the inner aspect. The upper margin of the bruise was approximately 12 cm from the tip of the left shoulder and the lower aspect of the bruise was approximately 6 cm above the elbow. On the medial aspect of the bruise clearing and faint yellow/green discolouration, whereas on the lateral aspect of the upper arm the bruise was purple and mottled in appearance. Sampled for histology.

22

Left forearm

120 x 180 mm variegated bruise, ulnar aspect left forearm. There was central clearing of the bruised area with the margins of the bruise having a purple brown appearance. The inferior end of the bruise was located 3 cm above the wrist and the superior end of the bruise was located 8 cm below the tip of the left elbow. Sampled for histology.

23

Left wrist and dorsum left hand

170 x 140 mm variegated bruise involving the left wrist and the dorsal aspect of the left hand. The bruise was almost circumferential around the left wrist with sparing of the volar/ulnar aspect. The bruise was predominantly brown in colour with clearing of the radial aspect of the dorsum of the left hand. The bruise extended from 3 cm above the left wrist to the level of the metacarpophalangeal joint. Sampled for histology.

27

Lateral aspect right lower thigh and knee

100 x 50 mm mottled red bruise, lateral aspect right lower thigh and knee. Sampled for histology.

28

Right shin

170 x 150 mm variegated vaguely linear bruise, right shin just below the knee. On the medial and lateral aspects of the shin the bruise had a mottled purple appearance whereas in the mid‑portion of the bruise, overlying the tibia, the bruise had a more confluent reddish brown appearance. Sampled for histology.

29

Medial aspect right calf

60 x 40 mm variegated reddish purple bruise, medial aspect right calf. There was faint clearing of the middle of the bruise. Sampled for histology.

38

Left upper back

75 x 20 mm interrupted, vaguely linear bruise on the left upper back, just below the shoulder blade. The bruise was obliquely oriented across the back with sparing of the central portion. The medial and lateral edges of the bruise were purple in colour. Sampled for histology.

39

Mid-left back

40 x 20 mm mottled purple vaguely linear bruise, mid left back. Sampled for histology.

40

Left mid-back

25 x 20 mm faint purple bruise, left mid back. Sampled for histology.

41

Posterior left upper thigh

40 x 30 mm ovoid reddish purple bruise, posterior left upper thigh. Sampled for histology.

42

Posterior mid-right thigh

Ovoid injury measuring 140 mm in the lateral plane and 80 mm in the vertical plane. The injury consists of a reddish purple bruise with central clearing, with a “tram track” appearance. Within the central cleared area is a roughly rectangular superficial abrasion measuring 20 x 55 mm. Within the superficial abrasion is an area of clearing measuring 35 x 20 mm. This injury is located on the posterior-medial mid right thigh. Sampled for histology.

Inferior margin thyroid cartilage

(Block AS). Sections show connective tissue, adipose tissue, skeletal muscle and a fragment of cartilage. A microscopic amount of glandular tissue consistent with thyroid gland was also present. In the muscle and connective tissue adjacent to the cartilage there was extravasation of red blood cells, confirming the presence of bruising. There was a mild mixed inflammatory response consisting of both mononuclear and polymorphonuclear inflammatory cells. A Perls stain for iron was negative.

Intercostal muscles between left ribs 9‑10

(Block AT). Sections show muscle and connective tissue with extravasation of red blood cells confirming bruising. There was a patchy, predominantly mononuclear inflammatory infiltrate. A Perls stain for iron was negative.

Intercostal muscles between right ribs 8-9

(Block AV). Sections show muscle and connective tissue with extravasated red blood cells confirming bruising. There was a predominantly mononuclear inflammatory infiltrate. A Perls stain for iron was negative.

Intercostal muscles between right ribs 9-10

(Block AW). Sections show adipose and connective tissue with extensive extravasation of red blood cells. There was a very sparse accompanying predominantly mononuclear inflammatory infiltrate. A Perls stain for iron was negative.

[24] Exhibit P3.

Dr Heath was asked whether it was possible the injuries where no haemosiderin was present were inflicted by a single infliction of blunt force trauma or whether there would have to be separate inflictions of blunt force trauma. Dr Heath said given the varied places on the body where the injuries were noted they would have been inflicted by separate applications of force. She said in her view it was “not just one application of force because there are bruises on the right side, the left side, the upper body, the lower body, kind of front and back so there’s going to be multiple applications of force”.[25]
[25] T196.19-23.
Dr Heath said even though injuries 12 and 13 on the right upper arm are “on the same part of the body they are separated by an intervening part of normal tissue so they would have been inflicted by a separate application of force”.[26]
Rib fractures
[26] T196.28-31.
Dr Heath explained a rib fracture is a break in one of the bones of the ribs of the chest cavity or the chest wall. She noted in her report under the heading “Skeletal System” that there was an “old healed wound fracture with callous formation, right 3^rd rib anterior”. Dr Heath said that a callous remains for months to years before it is completely healed which suggests this was an old rib fracture which may be weeks to months, to even a couple of years old.
Dr Heath noted right rib fractures and left rib fractures. Both sides involved ribs 7 to 10 which were fractured in the anterolateral aspect, which is halfway between the front and the side. Dr Heath said histology performed on samples taken from the intercostal muscles which sit between left and right ribs 9 to 10 did not reveal the presence of haemosiderin. It was Dr Heath’s opinion that the bruising in the intercostal muscles has been caused by the rib fractures. She said rib fractures can occur from blunt force trauma or a compressive force, for example, someone sitting on the chest or squashing the chest. Dr Heath said rib fractures can also occur during cardiopulmonary resuscitation (“CPR”) or during organ donation surgery. She confirmed there is no reference in the medical records to CPR being performed on Ms Kennett. She also confirmed that the left rib fractures were noted on CT scan soon after Ms Kennett’s presentation to the Mount Gambier hospital and that the repeat CT scan performed at the Royal Adelaide Hospital, showing the fractures to the left and right ribs, was performed prior to organ donation surgery. Accordingly, Dr Heath excluded CPR and organ donation surgery as possible causes of the rib fractures and considered that severe blunt force trauma had caused the rib fractures seen at autopsy. I infer that the right and left rib fractures occurred prior to presentation at the Mount Gambier hospital.

Dr Heath explained the liver is located on the right-hand side of the body in the upper abdomen and part of it is located under the ribcage. She said as the rib fractures and the liver were in the same general region, the rib fractures and the lacerated liver may have resulted from the same application of force or from separate applications of force. She said that if there had been a broadly-based application of force to the right-hand side lower chest upper abdomen, that may have fractured some ribs and lacerated the liver at the same time.
Dr Heath was of the opinion that if compressive force had been applied, it could have fractured both the left and right ribs in one application of force, “So it’s possible if there was a blow to the front of the chest, that may fracture the ribs on both sides”,[27] but because the application of force in that instance would be in the central chest, it would have been unlikely to also rupture the liver, whereas an application on the right-hand side of the chest could potentially lacerate the liver as well as the left ribs.
[27] T201.20-22.
There was no haemosiderin detected in the liver which confirmed Dr Heath’s opinion that the liver injury occurred “in the degree of some hours” before presentation at the Mount Gambier hospital.[28]
The observations of the neck at autopsy
[28] T175.12-13.
Dr Heath said on examination of the neck there were no injuries or marks to the skin of the neck but on subcutaneous examination there was a bruise in the middle of the neck at the region of the thyroid cartilage. There was also a bruise to the left side of the neck, near the angle of the jaw. She explained that bruising of the neck can be associated with neck compression or pressure being applied to the neck. In particular, the bruise near the angle of the jaw could possibly have occurred during resuscitation attempts particularly during intubation. She said apart from the injury near the jaw, the other injuries could have been caused by either a blow to the neck or neck compression. Dr Heath said there was haemosiderin present in the bruising around the angle of the jaw and the tissue surrounding the hyoid bone, which is located high in the neck. Dr Heath said that the hyoid bone is routinely examined in cases where there is an allegation or suspicion that there may have been compression of the neck because little fractures can occur in that bone. She said there were no fractures identified in the hyoid bone, however, there was some bruising or haemorrhage around the left side of that bone. Histology performed on tissue sampled from the hyoid bone revealed the presence of haemosiderin indicating the injury occurred more than 72 hours before death.
Other observations at autopsy
At autopsy, Ms Kennett’s weight was recorded as 53 kg and her height 163 cm. Dr Heath noted that her hair appeared to be slightly shorter in the region over the left parietal scalp surrounding a healing linear injury. She said this injury had a scab on it, indicating it was not recent, and the hair in that region was shorter. She said the hair at the front of the head on the right-hand side near the fringe looked shorter than the surrounding hair and it appeared as if it had recently been cut. She said the scab on the injury would be in the order of a few days old. Dr Heath was unable to say what, in her opinion, could have caused that injury. Dr Heath said that beneath the skin of the scalp there was a bruise on the left side of the head, extending from the frontal side through to the side of the head, to the occipital scalp, which is at the back of the head. She said that bruise measured 32 cm by 17 cm, so it was bruising all around the left side of the head. It was not able to be observed externally, but underneath the skin the bruising was present. There was also a 9 cm by 7 cm bruise beneath the scalp on the right-hand side which, unlike the left-hand bruise, did not extend to the front or the back. Haemosiderin was present in both those injuries. Dr Heath said that blunt force trauma could be the cause of these injuries.
Dr Heath also referred to 17 scars detailed in her report.[29] She said scars can persist for many years and the minimum age for a scar would be in the region of weeks, although she could not really isolate that with any accuracy. She said the scars would be older than seven days of Ms Kennett’s admission to the Mount Gambier hospital and they were of no significance to her ultimate findings in this case.
Cross-examination
[29] Exhibit P3, page 8.
Dr Heath was asked whether there were any external injuries that would have caused bleeding. She said that none of the bruises would have caused bleeding because the bleeding was underneath the skin. She said there were no injuries she noticed where the skin was broken. Whilst there were healing injuries which may have bled previously, none of the recent injuries bled.
Dr Heath agreed an application of force can include someone punching another person and it can include the injured person falling over. She agreed that in referring to an application of force she was not restricting herself to an external application by another person to the victim.
Dr Heath said each individual injury she noted could possibly have been caused by a fall or bumping into furniture. However, she described that she looks not just at individual injuries but a pattern of injuries. She explained that, just like a painting, each individual brush stroke means nothing, but if the brush strokes are put together they create a picture. Similarly, the distribution of injuries on the body – what part of the body they occur on and the number of injuries in different areas – tells the pattern of injury that gives information.
It is Dr Heath’s opinion the injuries on Ms Kennett were not typical of what would occur with just falling over. She said the pattern was not typical of multiple falls because of the distribution on the body. She said in instances of people who fall because of advanced age or infirmity, their bruises are typically on the arms and legs but not on the back of the thighs, the buttocks, or the back. Ms Kennett had bruises in all those areas as well as on her limbs, head, and face.
Dr Heath agreed that any one of the injuries 1 to 43 could be caused by a fall. She said some of the injuries could have been caused by someone falling out of someone’s arms, depending on what they fell onto. She said falling out of someone’s arms onto the floor – a floor that was completely smooth – would not be likely to give the pattern of injuries seen on Ms Kennett. If the floor was completely smooth, a person is not likely to sustain a specific injury unless a part of the body bumps against something irregular, for example, a raised part of the floor or the edge of a bathtub.
Dr Heath was asked to assume that there was an altercation between Ms Kennett and Mr Trussell, that Ms Kennett was naked, that at some stage she lost consciousness, and there was an attempt to resuscitate her by placing her in the shower. She was asked to assume there were two occasions that Ms Kennett fell on the floor from a height of being carried. She was asked whether that scenario could explain the range of injuries. Dr Heath said, in her opinion, it could account for some of the injuries, but it would not account for all of the injuries in the pattern of distribution she had noted.
Dr Heath was also asked to assume that blows were struck during the physical altercation. She agreed her evidence is that the pattern of injuries shows that the injuries were applied by someone as opposed to falling over. She was asked whether it was possible that the injuries could have been caused inadvertently during the course of a struggle. Dr Heath said the injuries could be the result of a combination of blows being struck and application of force other than blows being struck. She said it is also possible that a force may have been applied in the way of a push that resulted in the fall, so that if Ms Kennett was pushed and then subsequently fell over and landed on something, then some of the injuries may have occurred in that way. She said it is not possible from looking at an injury to say exactly how each individual injury has occurred, be it a fall, a push followed by a fall, being dropped, or being a direct blow either from a hand or a foot or an object.
Dr Heath said that she could not choreograph the scenario that caused the injuries, nor could she say the sequence in which the injuries occurred. Dr Heath agreed that a fall might cause a liver injury.
Dr Heath said “it’s certainly possible” that the right rib injuries may have been caused by a fall or suddenly running into a heavy object. She said that the rib injuries could have been caused by someone holding her very tightly and it would need to be very tight because the compressive force would need to be substantial.
Dr Heath was asked how quickly a person would experience pain, weakness, dizziness, reluctance to move, and a decrease in consciousness after application of force sufficient to lacerate the liver. Dr Heath said it would be very variable and depend on the situation that that person found themselves. She clarified that the pain is not from the injury to the liver as the liver does not have nerve fibres. The pain comes from the irritant effect of the blood building up in the abdomen and there could also be associated pain from damage to the soft tissues in the abdominal wall. She said, “there could be instantaneous symptoms or up to half an hour, an hour or so later before any symptoms started to appear. It’s really quite individual and variable”.[30] Having said she could not comment on whether the adrenaline that is likely to be produced during someone’s involvement in an altercation would affect their response to pain as it is outside her area of expertise, Dr Heath said:[31]
If that person was still involved in an altercation, anxiety or adrenaline from that, they may still be able to move if nothing else was happening and they could focus more on what they were feeling, maybe they would notice the symptoms earlier.
She also agreed that if the person who was involved in the altercation had a history of some involvement in altercations, they might not notice the pain immediately.
[30] T216.33-36.
[31] T216.36-T217.2.
In response to a question about whether someone with a liver injury could lapse into unconsciousness under two hours, Dr Heath said they could, it is “a very individual response and that it would be in the range of hours rather than in the range of minutes”.[32] Dr Heath was asked whether she could “put a finer timeline” to her comment that Ms Kennett had been unwell for some time before presentation to the hospital. Dr Heath said that it was beyond her area of expertise but to her those abnormalities take a period of time to develop, a bit like the inflammations that she observes in the body and it would be in the realm of hours as opposed to days or weeks.[33] I infer Dr Heath’s reference to “those abnormalities” to be Ms Kennett’s unresponsiveness, fixed and dilated pupils, low blood pressure, elevated heart rate, dropping temperature and the results of multiple blood tests performed soon after presentation, indicating Ms Kennett had been unwell for some time prior to coming to hospital.
[32] T218.17-19.
[33] T221.4-14.
Dr Heath agreed the haemorrhages to the head were not the cause of death and they could have been caused by an external application of force or by falling and the head hitting on the floor, as well as being dropped from waist height.
Dr Heath said some of the injuries could be grouped depending on the side of the body. She said the bruise on the ear, injury 4, and the bruise on the left upper arm, injury 20, could have occurred at the same time. However, if either of those injuries occurred from a blunt application of force from the person being struck, then they could not have occurred at the same time.
Dr Heath agreed that a heavy fall onto a rod-like, bar-like or stick-like structure could cause a tram track injury to occur. Dr Heath agreed that if a person is held hard then sometimes bruising can occur through finger pressure or gripping tightly. She said that the injuries to the face were inconsistent with gripping.
Dr Heath said it is outside her area of expertise to give an opinion regarding whether Ms Kennett could have “entered” the condition she was in when she presented to the Mount Gambier hospital a half an hour earlier.
Finally, Dr Heath agreed if the aorta was cross clamped at 5.05 am:[34]
… if we count back 72 hours from when the aorta was cross clamped, then those injuries that do not show haemosiderin staining would have been in that time period and if we know that they hadn’t occurred after she’s arrived at the hospital then that does narrow that window down.
[34] T239.27-31.
I accept Dr Heath’s evidence.
Brevet Sergeant Peter McKenzie – crime scene investigation
The crime scene investigator, Brevet Sergeant Peter McKenzie, gave evidence that, during his attendance at Mr Trussell’s home on 14 December 2018, he noted multiple blood-like stains on the kitchen floor, kitchen cupboards, hallway doorframes and the main bedroom. A police officer attending with Sergeant McKenzie took photographs of various parts of the house, items located and the blood-like stains. Copies of those photographs contained in two booklets are exhibit P1.
Brevet Sergeant McKenzie took 22 swabs of the various blood-like stains he located which, following his analysis using the ABC method and testing positive to Hemastix, he considered were bloodstains. He recommended that Forensic Science South Australia (FSSA) examine nine of those swabs.
Blood-like stains were also located on two pillows on the bed in the main bedroom. One pillow was encased in a pillowcase with the word ‘Prince’ printed on it (“the Prince pillowcase”) and the other was encased in a pillowcase with the word ‘Princess’ (“the Princess pillowcase”). Stains were observed on each of the Prince and Princess pillowcases. Brevet Sergeant McKenzie gave evidence that he also observed blood-like stains on the pillow encased in the Prince pillowcase when he removed the pillowcase.
Brevet Sergeant McKenzie said that he cannot date blood-like stains. As such, he was unable to confirm whether all of the blood-like stains were made during the same bleeding episode.[35]
[35] T150.33-38.
Brevet Sergeant McKenzie also submitted two pairs of scissors, a stick with thorns at one end,[36] a 10 kg dumbbell[37] located in the kitchen of the house, and an electric rug for DNA comparison.
[36] Exhibit P4.
[37] Exhibit P5.
I accept Brevet Sergeant McKenzie evidence.
Dr Pamela Fietz – the DNA comparisons
The forensic scientist, Pamela Fietz, gave evidence regarding the DNA comparisons she conducted as detailed in her forensic biology report dated 9 May 2019.[38] Dr Feitz explained the process of DNA comparison between the DNA reference samples which were obtained from Mr Trussell and Ms Kennett and the DNA obtained from the swabs taken from various sites around Mr Trussell’s home and items seized and submitted for analysis by the crime scene investigator.[39]
[38] Exhibit P16.
[39] T400.36-38.
Of the nine swabs taken from blood-like stains throughout Mr Trussell’s home by Mr McKenzie and submitted to FSSA for testing, Ms Kennett was either the major contributor to the DNA profile or the only contributor.[40]
[40] T415.7-417.22.
The red/brown staining on each side of the ‘Prince’ pillowcase gave a positive reaction to presumptive tests for blood. Ms Kennett was considered the major contributor to the DNA profile obtained from a cutting of the staining on one side of the Prince pillowcase.[41]
[41] Exhibit P16, pages 3-4; T410.25-415.6.
The red/brown staining on the Princess pillowcase gave a positive reaction to presumptive tests for blood. Both Mr Trussell and Ms Kennett were considered contributors to the DNA profile obtained from a cutting of the staining on one side of the Princess pillowcase.
The two pairs of scissors each gave a negative result to a presumptive test for blood and both Mr Trussell and Ms Kennett were considered contributors to the DNA profile obtained from swabs taken from the handles of the scissors.
No blood-like staining was observed on the stick with thorns and testing along the stick and the ends gave a negative result to a presumptive test for blood. No DNA samples of the stick were taken for DNA analysis.
No blood-like staining was observed on the dumbbell and an area at each end gave a weak positive result to a presumptive test for blood. Testing of the handle gave a negative result to a presumptive test for blood. Both Mr Trussell and Ms Kennett were considered contributors to the DNA profile obtained from a swab of the handle and a swab of one weighted end of the dumbbell.
I accept Dr Feitz’s evidence.
Prof Jason White – toxicology
Mr Trussell’s toxicology results
At 7.35 pm on 13 December 2018, a urine sample was collected from Mr Trussell. Subsequent analysis revealed the presence of methylamphetamine, amphetamine, mirtazapine, metoclopramide, olanzapine, nortriptyline, and 11‑nor-9-carboxy-Δ⁹-tetrahydrocannabindol (“carboxy-THC”).
A blood sample collected at approximately 7.35 pm on 13 December 2018, was analysed and showed the presence of:
1methylamphetamine (also known as methamphetamine) – approximately 0.010 mg/L;
2mirtazapine – 0.038 mg/L;
3metoclopramide – approximately 0.023 mg/L; and
4carboxy-THC – approximately 23 µg/L.
The pharmacologist, Prof Jason White, gave evidence to the effect that the methylamphetamine present in Mr Trussell’s blood was a relatively low concentration and unlikely to have had a very strong effect in someone who was an experienced user of the drug.
Prof White said if Mr Trussell was an occasional or regular user he may have taken the methylamphetamine 24 hours before it was detected in the samples, or if he was a heavy user it was more likely to have been a longer period prior to the analysis.
Mirtazapine is an antidepressant which, in Prof White’s opinion, would be unlikely to modify the effects of methylamphetamine. It could produce some sedation and may reduce the effects of methylamphetamine slightly.
Prof White said he could not say because of the delay between the incident and the blood sample collection whether Mr Trussell was under the influence of cannabis at the time of the incident.
Metoclopramide is a drug for controlling nausea, which may have been taken after the incident. Had it been taken during or before it would, at most, produce a degree of sedation.
Olanzapine was present in Mr Trussell’s urine but not in his blood sample. Olanzapine is an antipsychotic used for the treatment of schizophrenia and related disorders. The fact that it was only present in urine indicates Mr Trussell probably had not taken it for a few days prior to the incident. If it had been present, it would negate some of the effects of methylamphetamine and would make it less likely that he experienced effects such as agitation and psychotic effects.
It was Prof White’s opinion that if Mr Trussell did suffer schizophrenia, he would be susceptible to the psychotic effects of methylamphetamine. If he had taken olanzapine at about the same time it would have made it less likely that he would have experienced those psychotic effects.
Nortriptyline is an antidepressant. The fact that it was only detected in Mr Trussell’s urine indicates he probably had taken it a few days prior to the incident and would not have been affected by it at the time of the incident.
Prof White said if Mr Trussell was a heavy user of methylamphetamine at the time of the incident, the direct effects on him would have been minimal. It was possible he was experiencing rebound effects. This occurs if a person reaches a high methylamphetamine concentration and then it declines sufficiently. The effects include fatigue, irritability, and depressed mood. Insomnia can also occur along with psychotic effects which can continue for days or weeks after the blood concentration declines.

Significantly, someone susceptible to psychotic episodes is not necessarily always triggered by the consumption of methylamphetamine. It will depend on the dose consumed and the person’s psychological state at the time, as well as whether they have taken antidepressants which may negate those effects.
Prof White was of the opinion that mirtazapine is the only other drug that would have affected Mr Trussell and the effects on his mental state and behaviour would have been relatively minimal apart from its antidepressant effect.
In cross-examination, Prof White said if in the days prior to the taking of the blood sample Mr Trussell had been binging on amphetamines and had not slept for some days before eventually sleeping for a number of hours prior to waking up, it is possible the drug could still be present at 0.01 mg/L. The persistent effects would still be there and could include paranoia. Prof White said that if people wanted to experience the effects of methylamphetamine, they would probably stop taking olanzapine. In such a case, they would no longer receive the therapeutic effect to reduce, presumably, their symptoms of schizophrenia and would therefore be more likely to experience the psychotic symptoms which would potentially be exacerbated by methylamphetamine use.
It was Prof White’s opinion that there would not have been any strong direct drug effects occurring and affecting Mr Trussell in the late hours of 12 December 2018, or the early hours of 13 December 2018.
Ms Kennett’s toxicology results
Prof White also gave his opinion regarding the toxicology report prepared in relation to Ms Kennett, exhibit P10.
Prof White considered the level of GHB in Ms Kennett’s system was not particularly high and by itself was not likely to produce a significant effect. As it is a substance that is metabolised quickly, it is possible that even an hour before the sample the concentration could have been two to three times higher. Whilst it is not possible for Prof White to accurately estimate the initial GHB level, he said it would be reasonable to conclude that if she had taken it three hours earlier, she would have been experiencing its effects. The effects of GHB are similar to alcohol; low doses can make people a little disinhibited and a little bit more active, and high doses produce sedation. If a person experiences sedation, they are a bit like a drunken person and can appear uncoordinated. In some circumstances, it can manifest as a person being a bit irritable and reacting more strongly than they otherwise would. GHB is usually only detectible in blood for up to six hours and in urine up to 12 hours.
The mirtazapine detected in Ms Kennett’s system could have caused a mild degree of sedation or weakness if she was not accustomed to it.
The metoclopramide may have been taken before but was possibly given at hospital to control nausea and vomiting.
There was no THC present in Ms Kennett’s blood, hence Prof White did not consider that she was under the influence of cannabis. The level of metabolite detected indicated that she was a heavy user.
There was no methylamphetamine in Ms Kennett’s blood sample.
I accept Prof White’s opinion.
The friends of Mr Trussell and Ms Kennett
Jacqueline Tickner and Michael Gacek were in a relationship and were friends with Mr Trussell and Ms Kennett as at 13 December 2018.[42] They lived with their daughter in Mount Gambier.
Jacqueline Tickner
[42] T245.36-246.13; T272.22-.24.
Ms Tickner gave evidence that she would visit Mr Trussell and Ms Kennett at their home every few days. Ms Tickner explained that she was subjected to domestic violence by Mr Gacek. She would frequently visit Ms Kennett as a way of getting away from home.[43] She was aware Mr Trussell and Ms Kennett sometimes shared a phone.
[43] T245.20-23; T249.31-37.
Ms Tickner said that she saw Ms Kennett the day before she died when she and Mr Trussell came to her home about two o’clock in the afternoon. As Ms Kennett stayed in the car when they arrived Ms Tickner said to Mr Trussell, “How come Eden’s not coming in?”. He said that she did not really want to as she had a few marks on her arm. Ms Tickner said to Mr Trussell, “Who gives a shit about that? I’ve got marks on my arm” and asked him if it was okay to get her. She went outside to speak with Ms Kennett in the car and told her to come inside. As Ms Kennett was reluctant Ms Tickner said “who cares about a few marks”, showed her some of her marks and “told her to come in, not to worry about it, you know, that we don’t worry about that sort of stuff”.[44]
[44] T249.15-17.
Ms Tickner said that when Ms Kennett got out of the car, she seemed fine, she “was walking fine”, was laughing and seemed all right. Ms Tickner said, “she had a few bruises on her, but it was nothing that was stopping her from moving around or anything like that”.[45] She said the bruises were on her arms and legs. When Ms Kennett took off her sunglasses, Ms Tickner noticed a few dark shadows on her face under her eye, above her eyebrow and down the side of her face “like shadows, not proper bruises”.[46] She could not remember which eye. Ms Kennett and Ms Tickner sat down and had some cones. Ms Kennett and Mr Trussell stayed for about an hour and then left because they had people waiting at their place.
[45] T250.14-16.
[46] T250.34-35.
Ms Tickner, Mr Gacek, and their daughter, Violet, went to visit Mr Trussell and Ms Kennett later that day after dinner at about 6.30 – 7.00 pm. When they arrived, Mr Trussell, who was out the front of his house working on a car, said Ms Kennett was inside laying down because she did not feel well. They went inside to the kitchen and Ms Kennett came out of the bedroom and sat and did not move much. They stayed in the kitchen just smoking and looking at the snake in the glass tank on the kitchen table. They left at around 8.00 – 8.30 pm.
Ms Tickner said she saw bruises on Ms Kennett’s legs on other occasions and saw bruises on her occasionally in the 12 months prior to going to jail in September 2018.[47]
[47] T257.7-36.
Ms Tickner also described seeing bruises on Mr Trussell on two to three occasions. They were on his legs and one on his arm. She did not see any bruises on him in the time following her release from jail and prior to Ms Kennett’s death.[48]
[48] T258.9-14.
In cross-examination, Ms Tickner was confused about whether the last time she saw Ms Kennett was 11 or 12 December 2018 and appeared to settle on “the day of Tuesday” which was 11 December. She agreed that Mr Trussell would give Mr Gacek advice to the effect that if he has a fight he has to walk away and take a deep breath. She agreed there were times when Mr Trussell discussed the difficulties that he was having in his relationship with Ms Kennett with her.
Michael Gacek
Mr Gacek was a reluctant witness, whom I suspect was drug affected. During examination-in-chief, Mr Gacek was remaining silent and not answering questions. I adjourned briefly so the prosecutor could speak with him. Following the adjournment, as he was hiding outside the door into the courtroom, I had to firmly ask him to return to the witness box.
Mr Gacek gave evidence that he recalled Mr Trussell and Ms Kennett coming to his home the day before he found out Ms Kennett had died. When asked whether he had ever seen any injuries on Ms Kennett he replied, “I know they used to play fight like me and Jacquie used to” and “piss farting around, messing around...” but could not recall if he saw any injuries on either of them.[49]
[49] T273.31-36.
Mr Gacek was asked in cross-examination whether there was an occasion when he saw an argument between Mr Trussell and Ms Kennett at their house where Mr Trussell was trying to leave, and Ms Kennett was holding onto his leg. He said it happened near the front door as Mr Trussell was trying to get out, and Ms Kennett’s arms were wrapped around Mr Trussell’s legs.
I accept Ms Tickner’s evidence. Despite Mr Gacek’s behaviour whilst giving evidence, I accept his evidence other than his reference “play” fighting and “piss farting around, messing around ...” which I infer is a reference to domestic violence. I conclude that Ms Tickner and Mr Gacek were together when they last saw Ms Kennett. Whilst it is unclear from their evidence whether that occurred on 11 or 12 December 2018, having regard to Mr Trussell’s evidence that it occurred the day before Ms Kennett died, I infer the last time Ms Tickner and Mr Gacek saw Ms Kennett was 12 December 2018. Ms Tickner also referred to Ms Kennett staying in the car. Mr Trussell’s evidence is that he and Ms Kennett walked to the Tickner/Gacek house. I accept Ms Tickner’s evidence that Ms Kennett arrived in a car.
Chloe Trussell’s friend, Monique Mitchell
Monique Mitchell stayed at Chloe Trussell’s home the night of 12 December 2018. She recalled Mr Trussell coming around at about 6.30 in the morning of 13 December 2018. Chloe Trussell ran out to his car and came back in “a bit shooken up”[50] and said she and Mr Trussell needed to take Ms Kennett to the hospital. Ms Mitchell did not see Mr Trussell. Ms Mitchell stayed at Chloe Trussell’s home to mind Chloe Trussell’s two small children. She said Chloe Trussell and Mr Trussell returned after about 10 minutes. Ms Mitchell spoke to Mr Trussell.
[50] T286.15.
In cross-examination, she said Mr Trussell did not say anything about what happened, that he appeared anxious and she left soon after they arrived.
Ms Mitchell said she knew who Ms Kennett was and had last seen her when she and Chloe Trussell dropped off Panadol to Mr Trussell’s house about two weeks before the morning of 13 December 2018. They went inside and Ms Mitchell noticed Ms Kennett had a black eye. She did not know whether it was the left or right eye. Ms Mitchell only attended Mr Trussell’s house once.
Ms Mitchell said the visit was two weeks prior to Ms Kennett’s death. However, she said she visited the house only once. Mr Trussell agreed in his evidence that Ms Mitchell was with his sister when his sister dropped off Nurofen he had asked for in a text on 9 December 2018. I therefore infer Ms Mitchell saw Ms Kennett on 9 December 2018. Otherwise, I accept Ms Mitchell’s evidence.
Ms Kennett’s former partners
Dereck Crouch
Dereck Crouch was in a relationship with Ms Kennett for a number of years and they have a son together who was born on 16 October 2013.[51]
[51] T491.5-9.
In cross-examination, Mr Crouch agreed that, following his separation from Ms Kennett, he took out a restraining order against her as it was required by Families SA to ensure he could have custody of their son.[52]
[52] T491.18-20; T499.1-6.
He described an occasion following their separation when Ms Kennett came to his house to see their son on 7 December 2015. She was distressed and screaming wanting to leave with their son who became upset. Mr Crouch tried to settle him and told Ms Kennett to leave.
Mr Crouch was asked whether he recalled reporting the incident to police and telling police that Ms Kennett lashed out whilst he was holding their son. He was asked whether he reported to police that Ms Kennett began punching him in the head and hit him with her right clenched fist a couple of times, once in the left temple and once in the right eye. Mr Crouch said he did not “100% recall but if it’s in an affidavit” he gave the police then it would be true.[53] He agreed he had not attacked Ms Kennett and it was suggested that it was an unprovoked attack by her. Mr Crouch said he “wouldn’t say so much as unprovoked”, that it occurred because he “wasn’t letting her leave” with their son.[54]
[53] T492.38.
[54] T493.9-10.
Mr Crouch agreed he told police that in order to quieten Ms Kennett down he handed their son to her. However, she then tried to leave with him. When he tried to stop her by blocking the front door with his leg, Ms Kennett grabbed him around his neck with one arm while holding their son in her other arm. He agreed the altercation continued outside and Ms Kennett, still holding their son, bit him on his arm and drew blood.
Mr Crouch agreed a photo taken of him at the time he reported the incident to police showed redness where he had been punched by Ms Kennett “but the size of her body and the size of her body weight, you know, you can tell, yeah, that she hit me but the level of damage you could say that she inflicted is miniscule”.[55] He explained she:[56]
… was a tiny figured girl with total body mass of like below 50 kilos. Because of her weight and her size her punches were very, very like opposed to getting punched by someone bigger would be create a lot more damage. Like she’s only a very, very small girl.
[55] T495.36-496.1.
[56] T496.4-8.
Mr Crouch agreed another photo he was shown depicted a bite mark from the bite by Ms Kennett which drew blood. He said there probably would have been altercations before. He said they were mostly verbal, and he could not think of any time when she had punched or scratched him. He said if there were any other occasions, they would have been minor. He said their arguments only concerned their son.[57]
[57] T496.22-36; T498.17-20; T499.1-4.
Mr Crouch also agreed he complained to police about Ms Kennett punching his car and causing a small dent in a door on an occasion when he was leaving with their son in the car.
I accept Mr Crouch’s evidence.
Raymond Watson
Raymond Watson was in a relationship and lived with Ms Kennett from around 2015 to 2017. At the beginning of their relationship, Ms Kennett had custody but then lost custody of her son. After she lost custody, she started using ice. Mr Watson told police that:[58]
Eden’s drug use got a lot worse when she lost custody of her son. There wasn’t anything I could do, she started using every day pretty much. She would smoke methylamphetamine and it became so bad I to get her out of my life and we broke up.
Mr Watson explained what he meant by “it became so bad” was that he was trying his best to help her out and he just lost trust. He said that he would kick her out for a while and then take her back because he was trying to help her. They parted ways a number of times and on many occasions she wanted to come home. He said there was no physical violence between them.
[58] T301.22-27.
Mr Watson said that they were friends after they separated, and that they never really broke up they just parted ways.
He gave evidence that he saw bruising on Ms Kennett on one occasion in November 2018 when she visited him at his workplace.[59] He noted she had “about four, may be 5 bruises” located on her left and right hand above her wrists and on her left arm.[60]
[59] T296.10-22; T303.16-19.
[60] T296.26-297.15.
Mr Watson said that he tried numerous times to cut contact with Ms Kennett.
He said on 29 June 2018, about six months before Ms Kennett visited his workplace, he received messages from her on his mobile phone which included photographs of an injury to her right foot.[61]
[61] T298.13-28; T300.2-13; Exhibit P7.
On the prosecution case, the photographs sent to Mr Watson depict the injury suffered by Ms Kennett on the day that she attended Ms Winterfield’s house in an upset state discussed below.
I accept Mr Watson’s evidence.
Elina Wanden – Ms Kennett’s friend
In mid-2018, Ms Wanden, a friend of Ms Kennett’s, was at Linda Winterfield’s house at 17 Laird Street when Ms Kennett arrived at the premises crying and distressed.[62] Ms Wanden said Ms Kennett had blood all over her foot coming from a cut to the inner side of her foot. She also had the markings of a bruise coming up on her left eye which was red and swollen.[63] Ms Kennett went back to Ms Wanden’s home, stayed for five nights, and then left for Adelaide. During that time, Ms Wanden said the markings on Ms Kennett’s eye developed into a bruise.[64]
[62] T366.12-17, T366.27.
[63] T366.26-367.3.
[64] T367.4-5; T368.2-9.
I accept Ms Wanden’s evidence.
The Laird Street neighbours
Patricia Considine
Ms Considine, who lived at 27 Laird Street, explained that she is a cousin of Mr Trussell’s mother and that she and Mr Trussell are “prick related, long distant”.[65] She said Mr Trussell had been living in Laird Street for about a year as at December 2018. She said there were times when Mr Trussell was living on his own. Ms Considine did not ever meet Ms Kennett and did not speak with Mr Trussell. She described seeing and hearing arguments between Mr Trussell and Ms Kennett daily.[66] She said they would both be yelling, that she could not really hear Ms Kennett, and she heard swearing coming mainly from Mr Trussell.[67] She gave evidence of seeing Mr Trussell pulling Ms Kennett by her hand along behind him as if Ms Kennett was not hurrying up. She said they walked holding hands in a manner that appeared abusive.[68]
[65] T305.
[66] T305.10-11; T306.26-35.
[67] T307.23-27.
[68] T307.4-10; T307.13-18; T308.1-2.
Ms Constantine said she was woken by an argument coming from Mr Trussell’s house “Roughly, 5.30, [6] o’clock, roughly”,[69] the day she later saw police at Mr Trussell’s house. She could only hear Mr Trussell yelling and did not hear Ms Kennett at all. She heard the arguing go on for “maybe half an hour‑ish”[70] and then it stopped.
[69] T309.34.
[70] T310.22.
I accept Ms Considine’s evidence and infer her reference to the argument is a reference to hearing only Mr Trussell yelling.
Timothy Rosenthal
Mr Rosenthal lived at 26 Laird Street.[71] He described seeing Ms Kennett vent her anger a few times from outside the premises at 30 Laird Street. On that occasion Ms Kennett appeared obviously upset and would yell back into the house.[72] About a month prior to Ms Kennett’s death, Mr Rosenthal witnessed an argument between Mr Trussell and Ms Kennett out the front of his home. Ms Kennett was sitting on the ground crying and Mr Trussell was also present. A short time later, he saw them standing up holding each other.[73] He said he did not ever hear Mr Trussell yelling. He described seeing them walking hand in hand like a normal couple.[74] He said they looked like a normal couple 90 per cent of the time.
[71] T319.4-7.
[72] T320.3-22.
[73] T321.10-29; T321.35-36; T323.3-15.
[74] T324.29-36; T325.1-6.
I accept Mr Rosenthal’s evidence.
Linda Winterfield
Ms Winterfield, who lived at 17 Laird Street, said that Mr Trussell lived on and off with a girl in the time he lived on Laird Street. She twice heard arguments coming from Mr Trussell’s house. A few weeks prior to Ms Kennett’s death, Ms Winterfield was in the passenger seat of a parked vehicle and Mr Trussell and Ms Kennett were standing at the driver’s side window of the vehicle. She said when she leaned forward to smile at Mr Trussell and Ms Kennett, she noticed Ms Kennett had a black eye.[75]
[75] T331.21-33; T335.1-7; T335.30-.32.
I accept Ms Winterfield’s evidence.
Robert Russell
Mr Russell, who lived at 28 Laird Street, informed the Court that a lot of people use drugs and Mount Gambier is known as the drug capital of South Australia.[76] He said Mr Trussell and Ms Kennett used “Just a little bit of marijuana”[77] and that, whilst he had never seen them use ice, “There’s something there but I couldn’t say what it was. I’m not a doctor”.[78]
[76] T342.3-4.
[77] T342.7.
[78] T342.11-12.
When asked if he heard arguments between Mr Trussell and Ms Kennett, he said the limestone walls of the houses were that thick that you “don’t hear very much”.[79] He added that he heard “just a few minor words, that’s all”[80] when they were in the carport about two or three weeks before Ms Kennett’s death. He agreed that he told police that he “saw Eden throw a punch at Brad but he blocked the punch with his arm and Brad grabbed Eden’s arm and told her to pull her head in and to settle down” and after that they went inside. He said they were arguing over drugs, but he did not know what sort. He said that he never saw Mr Trussell be physical with Ms Kennett.
[79] T338.7-8.
[80] T338.21.

Mr Trussell said that Ms Kennett was punching, biting, and scratching him and, just prior to the “final push”, grabbed him on his chest and arm and tried to step in front of him as he tried to leave. At this point, Mr Trussell said he engaged in the actions comprising the “final push”. I reject even as a reasonable possibility, having regard to Dr Heath’s evidence regarding the time it would have taken for Ms Kennett to have become so unwell following the infliction of the liver injury, Ms Kennett was physically able to engage in the conduct Mr Trussell gave evidence of.
Mr Trussell’s evidence regarding the “final push” does not explain how Ms Kennett came to have a lacerated liver and the rib fractures, the latter caused by severe force. As submitted by the prosecution, although he tried to explain the incident that caused Ms Kennett’s death his evidence does not account for the fatal injury and lacks any degree of credibility or reliability.
After the final push, Mr Trussell thought Ms Kennett was pretending to have a seizure. He said he was in the lounge having a cigarette, he could see her, and he called her name a couple of times, but she did not respond. After the cigarette he had a cone only because he thought she was faking the seizure. He said it would have taken five to seven minutes to have the cigarette and the cone. After doing this, he went to her aid. I agree with the prosecution that this defies common sense and logic.
Mr Trussell gave evidence he took Ms Kennett to the hospital because he was concerned for her health and safety.[268] However, after dressing her he took her to his sister’s house to get her opinion about how serious Ms Kennett was and whether she did really need to go to hospital. He said, “I seen that she was still convulsing on the floor facedown so I thought it was pretty serious”.[269] When it was put to him he was more concerned about not getting into trouble he said, “Because I didn’t know the seriousness of what had happened to Eden”, she had stopped having seizures when he put her in the car and he just thought she needed medical attention. He agreed he knew she was unconscious and that his attempts to put cold water on her had not woken her up. He maintained he did not really know her medical situation was serious and that it was life and death. When asked what he thought about her being unconscious, he said he knew that when people have fights and are knocked unconscious they become conscious after some time so he did not think it was life or death at the time and he did not understand the full severity of it.
[268] T536.7-8.
[269] T548.4-5.
The explanation, that he did not know that Ms Kennett’s condition was that serious, is directly contrary to his explanation for carrying Ms Kennett to the shower because he thought it was “pretty serious” and is another matter going to his credit.
In cross-examination, Mr Trussell frequently contradicted the accounts he gave in his interview with police and during evidence-in-chief. Much of his evidence was, in my view, tailored to bolster his version of events that Ms Kennett started the physical altercation, self‑harmed, accidentally fell and he pushed her in self-defence. I accept his account that the altercation started as he was angry Ms Kennett was on his phone. I reject his evidence regarding the level of violence he asserted he inflicted on Ms Kennett, his assertions of Ms Kennett’s violence, and that he acted in self-defence during the altercation in the kitchen in the early hours of 13 December 2018.
Findings
I remind myself that to infer guilt on the part of Mr Trussell must be the only rational inference which the established facts enable me to draw. The prosecution cannot prove guilt unless it has excluded beyond reasonable doubt, any reasonable hypothesis or explanation consistent with innocence. Whilst I reject Mr Trussell’s evidence going to specific intent, I remind myself Mr Trussell does not have to prove anything. It remains for the prosecution to prove each and every element of the crime of murder beyond reasonable doubt.
It is not for Mr Trussell to establish that inference other than guilt should reasonably be drawn from the evidence or to prove particular facts that would lead to support such an inference. As I referred to at the commencement of these reasons, in evaluating the evidence I am not required to engage in groundless speculation, nor am I required to find that there is a reasonable possibility of innocence based on mere conjecture.[270]
[270] Barca v The Queen (1975) 133 CLR 82.
I have considered and examined all the evidence including the extent and nature of Ms Kennett’s injuries, and in particular the injuries with no haemosiderin present. I am satisfied in the early hours of 13 December 2018, Mr Trussell inflicted multiple blows on Ms Kennett causing the injuries identified by Dr Heath with no haemosiderin present.
The possibilities and scenarios put to Dr Heath in cross-examination regarding the cause of those injuries are inherently unlikely and conjecture. The pattern of distribution and number of those injuries, as described by Dr Heath in her evidence, excludes as a reasonable possibility the injuries were self-inflicted or resulted from an accidental fall. The pattern of distribution and number of those injuries excludes as a reasonable possibility the injuries being consistent with anything other than a severe beating.
Having regard to the number of injuries sustained by Ms Kennett that would have occurred within 26 hours prior to admission to hospital, the application of moderate force to lacerate the liver, the application of severe force to fracture the ribs, and the use of a rod-like implement to cause at least injury 42, I am satisfied that Ms Kennett was subjected to violent blunt force trauma inflicted by Mr Trussell.
I have considered whether the evidence raises a doubt in my mind whether the inference that Mr Trussell intended to cause really serious bodily harm should be drawn. Ms Kennett sustained too many injuries for there to be any reasonable possibility that Mr Trussell did not appreciate that his actions could cause really serious bodily harm. There is no reasonable possibility that in subjecting Ms Kennett to a severe beating during which he caused the liver injury he did not intend to cause really serious bodily harm.
I find the following circumstances established by the evidence:
1Mr Trussell and Ms Kennett were living together as at 13 December 2018.
2Their relationship was dysfunctional, unstable and domestically violent.
3Witnesses variously observed bruises and/or black eyes on Ms Kennett in mid-2018, October and November 2018 and during the week before 13 December 2018.
4A physical altercation occurred on 6 December 2018.
5Ms Kennett was unwell on 9 and 10 December 2018 and feeling unwell when the Tickner/Gacek household came to visit on 12 December 2018.
6Mr Trussell was angry about Ms Kennett being out of bed and on his phone when he woke on 13 December 2018.
7Mr Trussell got out of bed and confronted Ms Kennett in the kitchen. He was angry she was not telling him what she was doing. A verbal argument took place. He wanted her to leave, she said she did not want to go. A physical altercation then took place.
8Mr Trussell engaged in the fatal beating, inflicting blows on Ms Kennett causing severe and serious injuries.
9The fatal beating consisted of multiple applications of force to the head and body, front and back, and included the use of moderate force sufficient to lacerate the liver and severe force sufficient to fracture ribs.
10A rod-like implement was used to inflict at the least the tram track injury 42.
11The laceration to Ms Kennett’s liver was caused during the fatal beating by Mr Trussell.
12The laceration to the liver occurred within hours prior to presentation to the Mount Gambier hospital.
13The pattern of distribution and number of injuries, as described by Dr Heath in her evidence, excludes as a reasonable possibility the injuries were self‑inflicted or resulted from an accidental fall.
14The pattern of distribution and number of injuries excludes as a reasonable possibility the injuries being consistent with anything other than a severe beating.
15At the time the fatal beating was inflicted, Ms Kennett had obvious bruising and black eyes sustained in an earlier physical altercation(s).
16Ms Considine described hearing Mr Trussell yelling from his premises between 5.30 am and 6.00 am on 13 December 2018. She did not hear Ms Kennett.
17Mr Trussell drove Ms Kennett to his sister’s house before taking her to hospital.
18Ms Kennett appeared unconscious and “extremely unwell”[271] in the footage taken at the time of her presentation at the Mount Gambier hospital.
19No recent or defensive injuries were identified on inspection of the Mr Trussell’s body following his arrest.
20The cause of Ms Kennett’s death was hypoxic-ischaemic encephalopathy due to prolonged hypotension and hypoperfusion of the brain resulting from laceration of the liver and haemoperitoneum.
21There would not have been any strong direct drug effects occurring and affecting Mr Trussell in the late hours of 12 December 2018, or the early hours of 13 December 2018.
22There is no reasonable possibility that in subjecting Ms Kennett to a severe beating during which he caused the liver injury Mr Trussell did not intend to cause really serious bodily harm.
[271] T222.2.
I find beyond reasonable doubt that at the time he inflicted the injury which caused Ms Kennett’s death Mr Trussell intended at the very least to inflict really serious bodily harm.
Manslaughter
Manslaughter by excessive self-defence
As stated above, Mr Trussell’s counsel informed me Mr Trussell’s plea to manslaughter was on the basis of excessive self‑defence in the final push causing Ms Kennett to hit the fridge.[272] This form of self-defence is available if Mr Trussell genuinely believed his conduct was necessary and reasonable for a defensive purpose; but his conduct was not, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed existed.
[272] T613.22-32.
It was submitted Ms Kennett had a propensity to kick Mr Trussell in the groin and testicles. Mr Trussell gave evidence that an argument would progress from Ms Kennett pushing and scratching him to kicking toward his “testicle area” and he “would sort of respond as well to try and stop her from doing that”.[273] When asked how did she get close enough to kick him in the testicles, he said:[274]
Just when we were arguing, we would get sort of in each other’s face, then one would push and shove and then we would end up grabbing each other and that’s when she would try and kick.
[273] T521.4-8.
[274] T522.31-34.
He said during arguments in the past when he thought she was going to attack him he would defend himself. When it was put to him that he was not really defending himself rather he was attacking her in his own way, he said he did not know what she was going to do “so it was defending myself”.[275]
[275] T567.9-10.
I have rejected Mr Trussell’s evidence regarding the level of violence he asserted both he and Ms Kennett engaged in and that he acted in self-defence. In my view, excessive self-defence does not arise. However, I will consider the issue assuming, contrary to my finding, it does arise.
Mr Trussell gave evidence about the violence inflicted upon him as a child causing him to be hyper vigilant. It was Mr Balfour’s opinion Mr Trussell “would misperceive threat situations and potentially overestimate the level of risk”, and if required “he could become physically violent to deal with the conflict or threat”.[276] Mr Balfour explained Mr Trussell’s misperception of such situations is part of his psychopathology and is ingrained developmentally because of being encouraged as a child to be aggressive and living under the cloud of threats to his physical being. He added that in overestimating the level of risk and because of his hyperarousal, he has a lower threshold to become overwhelmed by his feelings, which can lead to anger and behavioural aggression.
[276] T734.28-31.
Mr Trussell contended that the evidence of Mr Balfour regarding his psychological background and the consequences of that background is directly relevant to the question of whether he genuinely believed that his conduct during the final push was necessary and reasonable in defending himself.
Mr Trussell gave evidence that he got out of bed angry that Ms Kennett was on his phone. He confronted her in the kitchen on her way back from the bathroom. He also gave evidence that he was angry, wanted to continue the argument, and wanted her to leave his house. Mr Balfour said Mr Trussell’s psychological disorders:[277]
… exacerbate his emotional control, so there’s two parts. He can think that he doesn’t like someone, and wants to harm them, for whatever motive, that’s psychological motive but he has the added burden that he gets angry very quickly and into that reactive anger, the blind rage.
[277] T764.23-28.
On my assessment, Mr Trussell’s anger about Ms Kennett being up, on his phone and denying she was doing anything wrong caused him to “spontaneously decide to act out violently in that situation”.[278] On his account, he tried to grab her by the arms to get her to leave while she was on the ground having a tantrum. Further, he said at the time he pushed her into the fridge, her back was to him.[279] There was nothing on my assessment for him to defend against. There was no threat to him at that time. During closing submissions, Mr Trussell’s counsel submitted that what took place in the early hours of 13 December 2018 was a fight and Ms Kennett was the instigator of the physical violence. I find Mr Trussell was the original aggressor; Ms Kennett may have responded to his anger and verbal attack physically, however, he willingly engaged and held the upper hand. As such, he cannot claim to be acting in self-defence.
[278] T766.336-767.2
[279] T544.27-33.
Mr Trussell sustained no injury which might support an inference that he had been under attack. The photographs of Mr Trussell taken by police depict a strong, fit-looking, young man.[280] Ms Kennett weighed 53 kg at autopsy and her height is recorded as 163 cm.[281] As submitted by the prosecution, the size difference alone rebuts any suggestion that he genuinely believed his actions were necessary for a defensive purpose.
[280] Exhibit P25.
[281] Exhibit P3, page 8.
The prosecution has proved beyond reasonable doubt that Mr Trussell did not genuinely believe his conduct was necessary and reasonable to defend himself.
Manslaughter by provocation
As I have found Mr Trussell formed the specific intent to cause really serious bodily harm and I have excluded self-defence, I turn to consider the partial defence of provocation. It was submitted that Mr Trussell acted under provocation when he did the act or acts that caused Ms Kennett’s death. It was contended the provocative conduct is to be found in Mr Trussell’s evidence that he was attacked by Ms Kennett in a relentless manner and that she would not let him retreat from the kitchen (“the alleged provocation”). I have rejected Mr Trussell’s evidence regarding the level of violence he asserted both he and Ms Kennett engaged in. In my view provocation does not arise. However, I will consider the issue assuming, contrary to my finding, that Ms Kennett’s conduct was provocative.
There are two limbs to provocation:
1The provocation must actually cause the accused to lose self-control and the killing must take place while the accused is deprived of his or her self-control (“subjective limb”); and
2The provocation must be such that it is capable of causing an ordinary person to lose self-control, form an intention to kill or cause grievous bodily harm and then act on that intention (“objective limb”).
The onus is on the prosecution to disprove provocation. To do this, the prosecution must disprove one of the limbs of provocation beyond reasonable doubt.
The subjective limb
As part of the subjective limb, the accused must kill the victim while deprived of self-control and before he or she has regained his or her self-control.
A loss of control, for the purposes of provocation, can stem from a range of emotional states. It is not limited to anger and resentment, but can also include fear or panic, or a combination of these states.
Provocation is made out if it is a reasonable possibility that Mr Trussell subjectively lost control because of the alleged provocation and formed the intention to cause at least really serious bodily harm to Ms Kennett. Assuming that Ms Kennett did behave in the manner alleged to comprise the provocation, the evidence does not raise as a reasonable possibility that the alleged provocation actually caused Mr Trussell to lose his self-control.
There is no evidence that Ms Kennett caused Mr Trussell to suffer a sudden and temporary loss of self-control such that he was deprived of that self-control and he killed her during that loss of control. At the risk of repeating myself, Mr Trussell gave evidence that in the early hours of 13 December 2018, Ms Kennett came out of the bathroom on his phone.[282] She would not tell him what she was doing, which angered him and caused him to think that she was hiding something from him.[283] They began arguing and, on Mr Trussell’s version, Ms Kennett was grabbing and pushing him, preventing him from leaving the house.[284] Mr Trussell’s evidence was that he was angry and there was pushing, punching and fighting and then the fatal push. He did not give evidence that he lost control as a result of that altercation or that he was in fear or panic. Rather, the effect of his evidence is that he held the upper hand throughout. I have no doubt that he was in fear and panic once he was aware Ms Kennett was unresponsive and having seizures.
[282] T537.17-19.
[283] T623.26-38; T624.13-30.
[284] T629.4-23; T637.6-9.; T638.18-28.
The objective limb
For the purpose of the objective limb, the gravity of the provocative conduct must be assessed by reference to the relevant characteristics of Mr Trussell, and the background of his relationship with Ms Kennett. As the High Court explained in Masciantonio v The Queen:[285]
Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree or gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions.
[285] (1995) 183 CLR 58 at 67.
The gravity of the alleged provocation must be assessed having regard to the traits and characteristics of Mr Trussell identified by Dr Balfour and against the background of his relationship with Ms Kennett. Having assessed the gravity of alleged provocation from the perspective of Mr Trussell, it is then necessary to decide whether provocation of that gravity could cause a person with ordinary powers of self-control to lose control and form an intention to kill or cause grievous bodily harm and act on that intention.
I must decide how a person of Mr Trussell’s age might react to the alleged provocation, assuming that person had ordinary powers of self-control. If an ordinary person, exposed to the same provocation as Mr Trussell, would not have lost their self-control, formed an intention to kill or cause really serious bodily harm, and acted on that intention, the objective limb has been disproved.

I do not accept it to be reasonably possible that an ordinary person could have been provoked by the alleged provocation to the point of forming an intention to kill or cause really serious bodily harm and act on that intention.
The prosecution has proved that an ordinary person exposed to the same alleged provocation as Mr Trussell would not have lost their self-control, formed an intention to kill or cause really serious bodily harm, and acted on that intention.
The prosecution has disproved provocation beyond reasonable doubt.
Conclusion
I have had regard to all the evidence and I have considered all the submissions of Mr Trussell’s counsel.
Mr Trussell gave evidence he did not form the requisite specific intention during the altercation on 13 December 2018. I have borne in mind that if there is a reasonable possibility that he did not form the requisite intention at the time of performing the act or acts of violence that caused the fatal liver injury, then he must be acquitted of the charge of murder.
I have considered and weighed all the circumstances established by the evidence at trial in deciding whether there is an inference consistent with innocence reasonably available on the evidence.
However, having regard to the positioning, nature and extent of the injuries sustained by Ms Kennett, some of which involved moderate to severe applications of force, I am satisfied that during the altercation in the early hours of 13 December 2018 Mr Trussell severely beat Ms Kennett. Having regard to the totality of the evidence, I am satisfied that Mr Trussell formed the specific intention whilst he was beating Ms Kennett, which intention did not change, to cause at least really serious bodily harm. I am satisfied that at the time he was performing the act or acts of violence with that intention he caused the liver laceration which caused Ms Kennett’s death.
Having examined all the evidence, I have reached the conclusion that it is not reasonably possible that Mr Trussell did not have the requisite specific intention at the time the injuries detailed by Dr Heath were inflicted.
Taking all the evidence into account, I find that the prosecution has proved beyond reasonable doubt:
1the act or acts of Mr Trussell caused the death of Ms Kennett;
2the act or acts of Mr Trussell were voluntary, conscious and deliberate;
3the act or acts of Mr Trussell which caused the death of Ms Kennett, were done with the specific intention to cause really serious bodily harm to Ms Kennett; and
4that self-defence does not arise on the facts. There was no lawful defence to the killing of Ms Kennett.
I find that the prosecution has proved all four elements of murder beyond reasonable doubt. That is, I find that Mr Trussell, deliberately and with intent to cause really serious bodily harm to Ms Kennett, beat Ms Kennett. Because of the beating which caused the laceration to her liver, Ms Kennett died.
For the reasons I have detailed above, I find beyond reasonable doubt that Ms Kennett’s conduct was not provocative.
Verdict
I find Mr Trussell guilty of murder.

Injury Number	Location of Injury	Description of Injury in Dr Heath’s report[24]
5	Left side of chin	20 x 10 mm faint bruise, left side of chin. Sampled for histology.
8	Left chest	40 x 30 mm faint blue bruise, left upper chest approximately 4 cm to the left of the midline and 6 cm below the clavicle. Sampled for histology.
12	Right upper arm	40 x 40 mm purple bruise, right upper arm, approximately 8 cm below the tip of the right shoulder. Sampled for histology.
13	Right upper arm	65 x 35 mm mottled purple bruise, [right] upper arm approximately 14 cm from the tip of the right shoulder. This bruise had a vaguely rectangular shape with slight clearing at the superior margin. Sampled for histology.
14	Outer aspect of right upper arm	Vaguely rectangular purple bruise measuring 30 x 40 mm, outer aspect right upper arm approximately 17 cm from the tip of the right shoulder. Sampled for histology.
17	Right forearm	Poorly defined purple red bruise measuring 60 x 45 mm located on the volar aspect of the right forearm, approximately 3 cm below the right elbow. Sampled for histology.
20	Left upper arm	150 x 120 mm variegated bruise, left upper arm. The bruise was almost circumferential around the left upper arm with sparing of the inner aspect. The upper margin of the bruise was approximately 12 cm from the tip of the left shoulder and the lower aspect of the bruise was approximately 6 cm above the elbow. On the medial aspect of the bruise clearing and faint yellow/green discolouration, whereas on the lateral aspect of the upper arm the bruise was purple and mottled in appearance. Sampled for histology.
22	Left forearm	120 x 180 mm variegated bruise, ulnar aspect left forearm. There was central clearing of the bruised area with the margins of the bruise having a purple brown appearance. The inferior end of the bruise was located 3 cm above the wrist and the superior end of the bruise was located 8 cm below the tip of the left elbow. Sampled for histology.
23	Left wrist and dorsum left hand	170 x 140 mm variegated bruise involving the left wrist and the dorsal aspect of the left hand. The bruise was almost circumferential around the left wrist with sparing of the volar/ulnar aspect. The bruise was predominantly brown in colour with clearing of the radial aspect of the dorsum of the left hand. The bruise extended from 3 cm above the left wrist to the level of the metacarpophalangeal joint. Sampled for histology.
27	Lateral aspect right lower thigh and knee	100 x 50 mm mottled red bruise, lateral aspect right lower thigh and knee. Sampled for histology.
28	Right shin	170 x 150 mm variegated vaguely linear bruise, right shin just below the knee. On the medial and lateral aspects of the shin the bruise had a mottled purple appearance whereas in the mid‑portion of the bruise, overlying the tibia, the bruise had a more confluent reddish brown appearance. Sampled for histology.
29	Medial aspect right calf	60 x 40 mm variegated reddish purple bruise, medial aspect right calf. There was faint clearing of the middle of the bruise. Sampled for histology.
38	Left upper back	75 x 20 mm interrupted, vaguely linear bruise on the left upper back, just below the shoulder blade. The bruise was obliquely oriented across the back with sparing of the central portion. The medial and lateral edges of the bruise were purple in colour. Sampled for histology.
39	Mid-left back	40 x 20 mm mottled purple vaguely linear bruise, mid left back. Sampled for histology.
40	Left mid-back	25 x 20 mm faint purple bruise, left mid back. Sampled for histology.
41	Posterior left upper thigh	40 x 30 mm ovoid reddish purple bruise, posterior left upper thigh. Sampled for histology.
42	Posterior mid-right thigh	Ovoid injury measuring 140 mm in the lateral plane and 80 mm in the vertical plane. The injury consists of a reddish purple bruise with central clearing, with a “tram track” appearance. Within the central cleared area is a roughly rectangular superficial abrasion measuring 20 x 55 mm. Within the superficial abrasion is an area of clearing measuring 35 x 20 mm. This injury is located on the posterior-medial mid right thigh. Sampled for histology.
Inferior margin thyroid cartilage	(Block AS). Sections show connective tissue, adipose tissue, skeletal muscle and a fragment of cartilage. A microscopic amount of glandular tissue consistent with thyroid gland was also present. In the muscle and connective tissue adjacent to the cartilage there was extravasation of red blood cells, confirming the presence of bruising. There was a mild mixed inflammatory response consisting of both mononuclear and polymorphonuclear inflammatory cells. A Perls stain for iron was negative.
Intercostal muscles between left ribs 9‑10	(Block AT). Sections show muscle and connective tissue with extravasation of red blood cells confirming bruising. There was a patchy, predominantly mononuclear inflammatory infiltrate. A Perls stain for iron was negative.
Intercostal muscles between right ribs 8-9	(Block AV). Sections show muscle and connective tissue with extravasated red blood cells confirming bruising. There was a predominantly mononuclear inflammatory infiltrate. A Perls stain for iron was negative.
Intercostal muscles between right ribs 9-10	(Block AW). Sections show adipose and connective tissue with extensive extravasation of red blood cells. There was a very sparse accompanying predominantly mononuclear inflammatory infiltrate. A Perls stain for iron was negative.