R v Waller - [2007] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Criminal)
R v WALLER
Criminal Trial by Judge Alone
[2007] SASC 136
Judgment of The Honourable Justice Nyland
20 April 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM
Accused charged with murder and causing grievous bodily harm with intent to do grievous bodily harm - finding that accused mentally unfit to stand trial - trial of objective facts - whether the accused was the perpetrator of the assault - whether the assault caused the death. Held: Accused not guilty of either offence.
Criminal Law Consolidation Act 1935 ss 269J, 269L, 269MA(5)(a) and (b), 269MB(1); Juries Act 1927 s 71A, referred to.

R v WALLER
[2007] SASC 136
Trial by Judge Alone
Nyland J:

Phillip Waller (the accused) was initially charged on an information dated 5 October 2004 (the first information) with the murder of his mother, Viola Evelyn Waller at McGillivray Hill, Kangaroo Island, on 26 January 2004. That information contained a second count of rape. On 11 January 2006, a fresh information was filed by the prosecution (the second information). That information also charged the accused with the crime of murder of his mother but in the alternative pleaded a second count of causing grievous bodily harm with intent to do grievous bodily harm. The charge of rape contained in the first information was no longer alleged against the accused.
On 23 January 2006, the accused was arraigned on the second information. He did not make any answer to those charges and I therefore proceeded on the basis that the accused pleaded not guilty to both of them. Ms Davey, on behalf of the accused, then made an application for the trial to proceed as trial by judge alone in accordance with an election made pursuant to s 71A of the Juries Act 1927. That application was not opposed by the Director and an order was made accordingly.
In the period between his arraignment on the first and second informations, issues arose with respect to the accused’s mental health. As a result, medical reports were obtained with respect to that matter.
Dr Raeside provided three reports dated 21 February 2005, 22 June 2005 and 31 July 2005, and Dr Koopowitz provided two reports dated 9 May 2005 and 31 July 2005 respectively.
At the commencement of the trial I had regard to s 269J of the Criminal Law Consolidation Act 1935 (CLCA). In view of the information contained in the various medical reports, I considered that there were reasonable grounds to suppose that the accused was mentally unfit to stand trial. Pursuant to s 269L CLCA, I directed that the issue of the accused’s mental fitness be tried separately from any other issue in the case and that it be tried first.
In view of the extensive information contained in the medical reports, I then decided, with the agreement of both prosecution and defence, that it was appropriate, pursuant to s 269MA(5)(a) CLCA to dispense with the investigation into the accused’s fitness to stand trial. Pursuant to s 269MA(5)(b) CLCA I then recorded a finding that the accused was mentally unfit to stand trial. Having recorded that finding, I proceeded pursuant to s 269MB(1) CLCA to hear evidence and representations from the prosecution and the defence relevant to the question of whether a finding should be recorded that the objective elements of either of the offences charged had been established.
In the course of the trial the following witnesses gave evidence for the prosecution:
Wendy Anne Doley, the daughter of the deceased and sister of the accused.
Rosalie Mavis Florance, a friend of Mrs Doley and resident of Kangaroo Island.
Violet Alice Vincent, sister of Rosalie Florance, and also a friend of Wendy Doley.
Senior Constable First Class Rudi Tromp, a police officer.
Jennifer Ellen Reeves, an employee of the South Australian Ambulance Service, and regional team leader and intensive care paramedic.
Gerome Floyd van der Linden Dhont, a legally qualified medical practitioner from Kangaroo Island.
Brevet Sergeant Michael Kevin Heath, a crime scene examiner with the physical evidence section of the forensic services branch.
Dr Daniel Anderson, a General Practitioner who treated Mrs Waller during the period that she resided in a Nursing Home.
Professor Roger William Byard, the forensic pathologist who conducted the post mortem on Mrs Waller on 23 June 2004.
Dr Ying Hui Yu, a neurosurgeon who treated Mrs Waller at the Flinders Medical Centre.
Dr David Jesudason, a visiting specialist in general medicine at the Royal Adelaide Hospital, who attended to the care of Mrs Waller at the Royal Adelaide Hospital in May 2004.
Dr Lyndall Young, a medical practitioner practising in the area of women’s sexual health and sexual assault medicine. She examined Mrs Waller at the Flinders Medical Centre on 27 January 2004.
Russell Bryan Cook, a Technical Officer in the Forensic Science Centre.
There were no witnesses called in the defence case.
The following exhibits were admitted into evidence in the trial:
P1Sketch plan of house at MacGillivray Hill, Kangaroo Island, formerly occupied by Mrs Waller and accused.
P2Photos of victims’ house, photographs of the accused and other evidentiary items x 70.
P3Map of Kangaroo Island.
[P4 and P5 were marked for identification only.]
P6Pair of brown slippers.
P7Statement of Dr Andrew Doley, dated 30 June 2004.
P8Declaration of Dr David Jesudason.
P9Pages 91-98 inclusive of Forensic Science Centre form.
P10Statement of Mr Russell Bryan Cook dated 1 March 2006.
P11Addendum report of Mr Russell Bryan Cook dated 16 May 2006.
P12Statement of Detective Senior Constable Andrew James Mensforth dated 26 February 2004.
P13Flinders Medical Centre case file page dated 27 January 2004.
P14Diagram of sexual assault examination by Dr Young.
P15Statement of Dr John Anderson dated 20 April 2006.
P16Statement of Agreed Facts.
D17Reports of Dr Raeside dated 8 November 2004 and 24 April 2004.
D18Reports of Dr Koopowitz dated 9 May 2005 and 31 July 2005.
Background:
At the date of her death, Viola Waller was aged about 83 years. After the second World War she and her husband settled on a property on Kangaroo Island and that is where Mrs Waller was residing when the events which are the subject of these charges took place. The property is between 3,000 and 3,500 acres and is situated a short distance (about 15 minutes drive) to the south west of Kingscote. Mr Waller died in 1980, following which Mrs Waller managed the property mainly for cattle. The accused is the fifth of her six children and from about 1983 he resided on the property with his mother and assisted with minor duties. At the date of these events he was aged about 52. Dr Raeside in his report dated 8 November 2004 referred to the accused as suffering from lifelong mental retardation. He said that from his interview he was of the view that the accused suffered from the “dual diagnosis of chronic paranoid schizophrenia, as well as mild to moderate mental retardation”. He said “I am unable to diagnose autism but that would be likely as well”. He said that despite the history of minor offending in the past, he thought that was more likely to be a function of his intellectual disability and psychotic disorder, rather than being due to an underlying anti-social personality disorder.
Dr Koopowitz in making his assessment of the accused as being unfit to stand trial, expressed the opinion that the presentation of the accused was “very much in keeping with autistic spectrum disorder”.
Mrs Doley moved to Kangaroo Island to live in about March 2003. It was her practice to visit her mother and brother about once or twice per week. She described the relationship between her brother and mother as good. She had regular contact with her mother by telephone and the usual arrangement was that her mother would ring her every morning, sometimes between 5 and 6 am, although usually between 7 and 7.30am. Mrs Doley said that the house in which her mother resided was generally left unlocked unless her mother intended to be absent from the home, although about six months earlier she had asked Mrs Doley’s husband to attach a secure lock to the front door, as she was “a bit paranoid about people coming in and out of the house, taking her papers, and she had papers missing…”. The lock to which Mrs Doley referred can be seen in photograph 17 of Exhibit P2.
Events of Monday 26 January 2004:
On Monday, 26 January 2004, Mrs Doley did not receive the usual phone call from her mother. She tried to ring her mother on about a dozen occasions but without success. As she had not been able to make contact by mid-morning she decided to go out to the property. When she arrived at the house she saw her mother’s car in the carport. She parked her car behind it and then went to the front door but it was locked. She called out and knocked and also called out to her brother. She did not get any response but she heard someone groaning inside. She investigated as best she could. As the door was locked she went to a nearby window which looked into her brother’s bedroom. All she could see were some legs. She thought they belonged to her brother but a cupboard blocked her view of the upper portion of the person in the room.
Mrs Doley panicked. She returned to her car and drove away from the house. She rang her friend, Mrs Florance, and told her something was wrong and asked her to call the police and an ambulance. Mrs Doley then waited by the roadside for help to arrive.
After speaking to Mrs Doley, Mrs Florance went to the police station with her sister, Mrs Vincent. At the police station, Mrs Florance rang for an ambulance. Senior Constable Tromp was on duty at the police station and eventually he drove out to the Waller property with the two women. They found Mrs Doley waiting by the roadside and all of them then went on to the house, arriving there just after midday. Tromp looked through the front window and saw the body of an elderly woman in the front room. Mrs Florance and Mrs Vincent tried to look into the house from the side window. They could see someone on the floor but they could only see from the legs down as there was something obscuring the view of the upper torso.
Tromp then broke into the house via a plywood partition in a wall which divided two parts of the premises. He opened the door to the second bedroom and saw the accused facing the door. He spoke to the accused and asked him to leave the room. They then walked towards the entrance to the first bedroom. When Tromp got to the first bedroom he looked in and saw a body of a female person lying face down in a pool of blood. Tromp did not enter the room but escorted the accused out of the house and then told him that he had been placed under arrest for assaulting his mother. Tromp subsequently conveyed the accused to the Kingscote Hospital, where a forensic examination later took place.
Mrs Florance and Mrs Vincent had both had some first aid training with St Johns. When they entered the room in which they had seen the legs, they saw Mrs Waller lying in the centre of the floor face down. Mrs Florance said the desk (which is depicted in photograph 15 of Exhibit P2) was pushed up closer to Mrs Waller than appeared in the photograph. She said (Tr 36):
It was almost as like as though she may have struck her head when she fell down.
Mrs Florance said that there was a pool of blood on the floor to the side of Mrs Waller’s head. She and her sister agreed that they should not move Mrs Waller but they decided to wipe away the mess as Mrs Waller was having problems breathing. Mrs Vincent wiped Mrs Waller’s mouth with a piece of blue material that she found in the room but which she later discarded. That appears to have been the piece of fabric which is visible in the corner of photographs 24 and 25 of Exhibit P2. Mrs Florance pushed the desk back to make room for others, such as the ambulance officers, to get into the room. Mrs Florance and Mrs Vincent then tried to comfort Mrs Waller. It appeared that Mrs Waller was wearing a pink dressing gown and either a nightie or a petticoat. She had a faded blue canvas slipper on one foot.
When asked to describe the blood in the room, Mrs Florance said (Tr 38):
On the floor there was quite a pool and it was of thick drying consistency but there was some on the wall that just appeared to be like a spurt.
Ms Reeves, the paramedic, arrived about 12.23 pm. When she stepped into the room she saw an elderly woman lying on her left side, mostly prone, that is, rolled forward a bit on an angle and a large pool of blood on the floor around her head and upper torso. She described the pool of blood as quite substantial. It was spread a fair way around, particularly around the head, and some of it had congealed. She said it was very sticky and had adhered to the floor a bit. When she examined Mrs Waller she observed a large contusion to Mrs Waller’s neck and face on the left side and under the jaw. She also noticed her right ear was damaged and there was a large skin tear on the back of her right hand which appeared recent. She noted that there was a dress or clothing on Mrs Waller but she did not appear to have any knickers or a bra. She was not sure whether she was wearing a nightie or some sort of shift. She did not examine her legs. She endeavoured to clear Mrs Waller’s airway which proved difficult.
Ms Reeves said that when she first examined Mrs Waller there may have been a very slow weep of blood but no fresh gushing type wound. She noted that Mrs Waller’s legs were moving which she put down to her cerebral irritation. She said that whilst she was in the room treating Mrs Waller the other two women (that is, Mrs Florance and Mrs Vincent) were there as well and assisted her. She said a second ambulance crew arrived while she was there as well as the doctor. At no time was she asked to hand over her shoes, nor provide fingerprints.
After the ambulance officers arrived and had checked out Mrs Waller, Mrs Florance and Mrs Vincent decided to roll Mrs Waller over. They then observed Mrs Waller’s face which appeared to be badly beaten. Dr van der Linden Dhont then arrived. He observed Mrs Waller lying on the floor. He thought there were four, or perhaps five other people present when he entered the room. He endeavoured to stabilise Mrs Waller. He said that cardio vascularly she was reasonably stable but neurologically she was very unwell. She was deeply unconscious, having a Glasgow Coma Scale score of between 4 and 5 (3 being the score applicable to a person who was deceased). He said (Tr 71):
She had a number of injuries to her face. She had an injury to her right ear with a laceration. She had an injury to her right forehead with an abrasion and quite significant swelling and I think a small laceration. She had a laceration over the left frontotemporal area. And then moving down the face, both her eyes were grossly swollen so that they couldn’t be opened. She had swelling across the bridge of her nose and across both of her cheeks. And on her face I don’t recall any other injuries. I examined the back of her head just by using my hands to go round the back of her head and I had the impression that there was an area of bogginess or a loss of the firmness that you would feel of the skull over the left occipital area, …
He said there were no obvious injuries to Mrs Waller’s neck but there was a degloving type of injury to the back of the right hand. There was copious blood on her face and her hair and about her upper torso. It was his impression that all of the injuries to her face were consistent with blunt trauma. He described the degloving injury as (Tr 72):
… where a portion of skin is sheared as though something – it usually occurs when something grabs or hits and moves down and shears down part of the skin. So she had an area which was quite significant on the back of the hand where the skin was torn back I think to the side.
When the ambulance arrived, arrangements were made for Mrs Waller to be returned to the Kingscote Hospital but en route to the hospital the ambulance was diverted to the Kingscote Oval from where Mrs Waller was removed by helicopter to intensive care at Flinders Medical Centre.
Mrs Waller’s medical treatment subsequent to 26 January 2004:
Mrs Waller was admitted to the Flinders Medical Centre at about 5 pm on 26 January 2004 in an unconscious state. Dr Ying Hui Yu examined her at the hospital. He said (Tr 162):
Her face appeared to be bruised and the eyes and a small cut on the face and she had a bit of swelling at the back of the head consistent with possibly being assaulted and falling backwards on the ground.
He said that her head CT scan also showed internal bleeding on the brain in multiple locations so it was possible that it was an assault and a fall but the facial and internal injuries were consistent with having been caused by trauma. He was unable to say whether it was the trauma to the back or front of the head that caused the internal damage to the brain, and it was possible that a falling against the floor could have caused the injury to the back of the head. Dr Yu also observed a cut on Mrs Waller’s hand.
At about 12.40pm Mrs Waller was examined by Dr Young, who is a specialist in the area of sexual assault medicine. Exhibit P13 is a photocopy of the Flinders Medical Centre medical notes, which relate to Dr Young’s examination of Mrs Waller, with Dr Young’s notes appearing at the top. Dr Young also made a diagram of what she observed (Exhibit P14). She described the injuries as Tr 245:
1.… a laceration that was approximately 1 cm in length. This laceration was moist, it was not bleeding at the time and there were no signs of healing of the injury.
She also noted on external examination -
… that there was red/purple bruising on the interior and posterior walls of the vagina and that is marked injury No. 2.
She said it was difficult to determine the age of the bruising but a potential cause of the laceration, as well as the bruising, was blunt trauma, which could be a blow, or could be caused by penetration of the vagina. She did not think the injuries could have been caused by the clumsy insertion of a catheter. Dr. Young was examined quite vigorously by Ms Davey about whether she had used a speculum to conduct the examination but Dr Young said that she had, although she had not noted that in her notes. She recalled, however, that the light was not adequate and for that reason she had wanted to obtain an opinion from a gynaecologist to see if there was anything that required any further medical intervention in the vagina. That examination appears to have been carried out by Dr Russ at about 4.10pm, as her notes appear in the lower half of Exhibit P13. Dr Russ described “superficial bruising and excoriation of interior vaginal wall” and also referred to a “1 cm superficial laceration of the post forchette”.
Ms Davey was very critical of Dr Young and argued that the prosecution had failed to exclude the possibility of vaginal injury having been caused independent of any assault. I thought, however, that Dr Young was a good witness who did the best she could to give objective evidence about the matter and in my opinion it is more likely that the vaginal injuries were the result of the assault upon Mrs Waller than a clumsy medical procedure. It is unnecessary, however, to reach any firm conclusion as to this aspect of the matter as, in the scheme of things, this particular injury can be regarded as relatively minor and in my view does not assist in resolving the issues which arise for determination.

Dr Yu said that Mrs Waller’s condition improved whilst at the hospital, although she remained in a basically vegetative state as a result of a diffused brain injury.
On 6 May 2004, Mrs Waller was discharged from Flinders Medical Centre and went to reside in an Aged Care facility called The Lodge on King William Road at Wayville. At The Lodge she came under the care of Dr Daniel Anderson although she continued to be in an unconscious state. On 8 May 2004 she was transferred to the Royal Adelaide Hospital as a result of breathing difficulties and remained there until 12 May 2004. She then returned to The Lodge but was transferred back to the Royal Adelaide Hospital on 13 May, where she remained until 24 May 2004.
During the period that Mrs Waller was at the Royal Adelaide Hospital she was under the care of Dr David Jesudason. He described her as an 83 year old female who was completely dependent and unable to communicate. She was brought to the RAH from The Lodge after an episode of aspiration pneumonia. He said that apart from other medications given for neurological deficits she was given a drug called Heparin (also known as Calciparine), which is a standard form of hospital medication given to patients who are long-term immobilised.
Dr Jesudason described the drug in simple terms as “a blood thinner". He said it was prescribed purely for prophylactic reasons as it was quite common for hospital patients to be given a subcutaneous injection of heparin to reduce the chance of developing clots while they were in acute care in a hospital. Heparin was generally used to prevent the clotting associated with Deep Vein Thrombosis but during the period that Mrs Waller was in Dr Jesudason’s care, he did not discern any indicia of deep vein thrombosis. Dr Jesudason said that he did not recommend the continuation of Heparin once Mrs Waller was discharged from the Royal Adelaide Hospital and it was not recommended for routine use in the Community or Nursing Homes. In addition, he said the fact that Mrs Waller was in a persistent vegetative state and was not expected to improve, meant that the necessity to give her regular injections of the drug would have been inconsistent with good palliative management.
Dr Anderson was unaware that Heparin (or Calciparine) had been prescribed for Mrs Waller at the Royal Adelaide Hospital. He also described that as a drug used for people who are at risk of developing Deep Vein Thrombosis and he said for that purpose it was often used post operatively. He said that in those circumstances, it was usually prescribed short term. He said that in his experience in caring for people in Aged Care facilities, Deep Vein Thrombosis was not a large problem as staff tended to be very good at what they did and had procedures in place to ensure that a patient like Mrs Waller was turned frequently during the day. Dr Anderson continued to manage Mrs Waller while she was resident at The Lodge. He eventually pronounced life extinct on 20 June 2004.
Post-mortem examination:
Professor Byard conducted a post-mortem examination of Mrs Waller’s body on 23 June 2004. He determined the cause of death as being due to a blood clot in the right leg that had broken off and gone to both lungs. He described the condition as a deep vein thrombosis in the leg and a pulmonary thrombi embolism in the lungs, the one leading to the other. That led to an acute heart failure on account of the blockage of the vessels. He thought the most likely cause of the thrombosis in the leg was immobility.
Professor Byard had been informed that at the Flinders Medical Centre Mrs Waller had been diagnosed as having suffered a closed head injury with sub arachnoid haemorrhage, cerebral haemorrhage, intra vascular haemorrhage, subdural haemorrhage, and hydro cephalous haemorrhage with fractures of the lateral posterial walls, both maxillary sinuses and fractures of the naval septum and a degloved injury of the right wrist.
Professor Byard did not discern any recent injuries on his external examination of the body although there were areas of pressure sores and some old scars. He observed a healed scar on her forehead and a tracheotomy scar on her neck which was the result of medical intervention. He did not see anything on the posterior part of her head, nor did he discern any fractures inside the vault of the head. There was some staining at the front of the brain which indicated that there had been a previous haemorrhage and there was also an old subdural haemorrhage. He considered that his findings were consistent with the history that he had been given about her diagnosis at the Flinders Medical Centre.
Police Investigation:
Senior Constable Mensforth went to Kangaroo Island on the afternoon of 26 January 2004. He was briefed by Senior Constable Tromp and then attended at the house property at about 5.26pm. He remained there for approximately one hour and then returned to the police station and made arrangements for a forensic examination to be conducted of the accused.
Brevet Sergeant Heath attended at Mrs Waller’s home at about 5.30pm on 26 January 2004. He examined the premises and arranged for the photographs to be taken which are contained in Exhibit P2. Included in items seized from the house was a pair of old brown slippers which appeared to have blood on the exterior surfaces as well as on the sole, and hair stuck to the base of them. He also examined a basket containing male clothes which was behind the door. He said several of the clothes were torn but none were blood-stained. He said the telephone which is shown in photograph 39 (P2) had been unplugged and the phone plug had been removed from the wall but there was no obvious blood on it.
The Statement of Agreed Facts (Exhibit P16) contains the following, which relate to the examination of the house.
18.The sample obtained by Heath from the largest of the three blood drops which he observed on the floor adjacent to the entrance to the house was scientifically analysed. A DNA profile was obtained from this sample. This profile matched the DNA profile of the deceased.
19.The sample obtained by Heath from an area of blood-like staining on the western wall between the chair and the pedestal fan was scientifically analysed. A DNA profile was obtained from this sample. This profile matched the DNA profile of the deceased.
20.The sample obtained by Heath from the front of the padded chair was scientifically examined. A DNA profile was obtained from this sample. This DNA profile matched the DNA profile of the deceased.
21.The swab obtained by Heath from the telephone plug was scientifically examined. No DNA profile was obtained from the sample.
At about 11.05pm at the Kingscote Police Station, Heath received five paper bags said to contain clothing taken from the accused. These were later subjected to forensic examination.
When cross examined by Ms Davey, about the results of his investigation, Heath agreed that he had said in his report that “suspect appears to have walked the slippers in blood and hair on bedroom floor” (Tr 225). He also agreed that in his report he had expressed the opinion that there was no physical evidence that directly implicated the accused in the assault. He considered, however, that the splashes on the sides of the slippers could have been due to the accused assaulting the victim, but acknowledged that was not necessarily so and that he could not say one way or the other.
Forensic Examination:
Dr Van der Linden Dhont carried out the forensic examination of the accused at the Kingscote Hospital on the evening of 26 January 2004. He noted that the accused’s right hand had a broken fourth nail, that under all the nails there was copious debris or dirt, that he had quite significant nicotine stains on his second and third fingers and there was a scratch on the ulna side of his wrist, which had the appearance of being a few days old. The left hand also had copious material under each of the nails and nicotine staining on the second and third fingers. There was a healing wound on the knuckle joint, which also appeared to be a couple of days old. Samples were taken from under each nail.
He said the accused’s left arm had an abrasion along the ulna border, which appeared to be younger than the previous noted abrasions, but this did not look to him as if it was from the last couple of hours. He did not find anything of note on the face or neck. He did not examine the accused perianally, but examined him around the perineum and found that he was completely soiled throughout. He took samples of hair both from the pubic area and from his head. He said that the accused’s legs were both heavily soiled:
Again there was copious material between his toes and under the nails and I noted there were no bruises on his legs, including his knees and the tops of his feet.
He said it looked as if the accused had not washed for a very long time.
Dr van der Linden Dhont also observed the accused earlier at the police station as he was concerned for his wellbeing and noticed that he had been rocking and said that “he rocks all the time” and described that as a “habitual behaviour which he does as some sort of comfort measure”.
Dr van der Linden Dhont was referred to photograph 53 of P2 which is a picture of the accused and he agreed that at the time of this examination, the accused was filthy and smelled and there was no sign that he had washed at all.
The examination of the clothing of the accused:
The clothing worn by the accused at the time of his arrest was subjected to forensic examination and is also the subject of the Statement of Agreed Facts (P16) which sets out as follows:
1.The clothing worn by the accused at the time of his arrest was seized at about 9.30pm on Monday 26 January 2004.
2.The clothing referred to in paragraph one consisted of a pair of jeans, a pair of socks, a pair of boots, a t-shirt, a pair of underpants and an octopus strap which was used as a makeshift belt.
3.The clothing itemised in paragraph two was subjected to scientific examination and analysis.
4.Examination of the jeans referred to in paragraph two revealed extensive faecal-like staining on the inner crotch and outer front surfaces of the jeans. The jeans were examined for the presence of blood-like staining. Blood-like staining was not detected.
5.The t-shirt referred to in paragraph two was examined for the presence of blood-like staining. No blood-like staining was detected.
6.The socks and the octopus strap referred to in paragraph two were examined for the presence of blood-like staining. No blood-like staining was detected.
7.The sample obtained by Cook from the forward front upper region of the left slipper of the pair of slippers which have introduced into evidence and marked P6 was subjected to scientific analysis.
8.A DNA profile was obtained from the sample referred to in paragraph seven above. This DNA profile matched the DNA profile of the deceased.
9.The sample obtained by Cook from the side of the sole of the right slipper of the pair of slippers which have been introduced into evidence and marked P6 was subjected to scientific analysis.
10.A DNA profile was obtained from the sample referred to in paragraph nine above. This DNA profile matched the DNA profile of the deceased.
11.The hair which Cook retrieved from the underside of the right slipper of the pair of slippers which have been introduced into evidence and marked P6 and which he marked as MH4/R.2.1 was scientifically examined and analysed.
12.A DNA profile was obtained from the hair referred to in paragraph 11 above. The DNA profile matched the DNA profile of the deceased.
Further DNA Profiles:
The statement of agreed facts also stated:
13.The fingernail scrapings obtained from the accused by Dr Van Der Linden Dohnt during the course of the examination pursuant to the provisions of the Criminal Law (Forensic Procedures) Act were subjected to scientific examination and analysis.
14.DNA profiles were obtained from some of the fingernail scrapings referred to in paragraph 13 above. DNA profiles which were obtained from scrapings taken from under the accused’s right thumb, right middle finger, left thumb and all four left fingers matched the DNA profile of the accused.
15.A mixture of DNA profiles was obtained from scrapings taken from under the accused’s right fourth finger and right fifth finger. This mixture was contributed to by more than one individual. The DNA profiles which comprised the mixture were consistent with the contributors to the mixture being the accused and the deceased.
16.Fingernail scrapings were obtained from each of the deceased’s hands. These fingernail scrapings were subjected to scientific examination and analysis.
17.DNA profiles were obtained from the fingernail scrapings referred to in paragraph eleven above. These DNA profiles matched the DNA profile of the deceased.
Other Medical Evidence:
Before turning to my findings in this matter, it is appropriate to refer to the evidence of Dr John Anderson, as it is relevant to the issue of causation. Dr Anderson did not give evidence but his statement was admitted as Exhibit P15. Dr Anderson is a specialist vascular surgeon, working with the Ashford Medical Centre.
On 22 December 2003, Mrs Waller was referred to him by her local GP in relation to lower limb circulation. He said that on physical examination he found that her right lower leg was warm, with good pulses throughout. The left lower leg was cold with no pulses below the ankle. The pulses at the top of the foot and the side of the ankle were not present. There was a pulse present at the groin and behind the knee. A general vascular examination did not reveal any abnormalities in the head or neck. She was suffering no significant pain and did not require any urgent treatment. He recommended that she have ultrasound to assess her circulation in her left leg and foot. This was apparently organised but not undertaken and he never saw her again.
Conclusion:
I am satisfied that on 26 January 2004 Mrs Waller was subjected to an unlawful assault which resulted in her suffering really serious injuries and I am satisfied that the assailant intended to cause her really serious injury. In order to find the objective facts of the charge of murder made out against the accused, however, I must be satisfied:
1. that the accused was the perpetrator of the assault upon his mother; and
2. that the assault was the substantial contributing factor in her ultimate death.
In the event that I am satisfied that the accused was the perpetrator of the assault but I am unable to be satisfied to the requisite degree that the assault was a substantial contributing factor to Mrs Waller’s death, I would find the accused not guilty of murder but I would record a finding that the objective facts of the alternative charge of causing grievous bodily harm with intent to do grievous bodily harm had been established.
The case against the accused is entirely circumstantial. In order to record a finding that the accused was the perpetrator of the assault, I must be satisfied not only that such a finding is a rational inference to be drawn from a consideration of the whole of the evidence, but that it is the only rational inference that the circumstances I find proved enables me to draw. In other words it is necessary for the prosecution to exclude any reasonable or any rational hypothesis to the contrary.
Mr Brebner QC, on behalf of the Director, submitted that the prosecution had excluded as a reasonable possibility that some unknown intruder, as opposed to the accused, had been responsible for the assault on Mrs Waller. He argued that if a third party had been the perpetrator, one might have expected greater signs of a struggle, as well as some evidence of the accused having been involved in such a struggle, such as some form of injury or torn clothing. The accused was the only person, other than his mother, in the house, which was locked and the door key was on the bench top in the kitchen. The accused’s failure to answer the phone or respond to his sister with whom he appeared to have a good relationship, were also inconsistent with a third person having been the perpetrator. Those matters were, however, consistent with a man of low cognitive abilities, having realised that he had done something wrong and “lying low” in the hope that his mother would wake up or that somehow the problem would resolve itself and go away.
Mr Brebner further submitted that the slippers (Exhibit P6) which must have been worn by the accused, were consistent with the accused having perpetrated the assault and then having almost immediately changed into the boots that he was wearing at the time of his arrest. Mr Brebner acknowledged that the blood splatter evidence described by Heath did not necessarily implicate the accused but pointed out that it also did not exclude him and suggested that the lack of blood located on the clothing of the accused was explicable by the direction of the blood splatter which had been primarily in a westerly direction, away from the body.
It is clear that the police immediately assumed that the accused was the offender. That is evident from the fact that Tromp indicated as much to the accused as he escorted him from the house. It also appeared that as a result of that belief, the subsequent examination of the subject premises was fairly cursory. There does not appear to have been any real attempt to locate a weapon, nor any attempt to check for fingerprints of people other than Mrs Waller and the accused, nor any foreign tyre marks nor footprints around the house, although given the number of people that eventually attended at the premises before the police arrived, it was unlikely that such checks would have yielded any helpful results.
Ms Davey pointed out, however, that the Crown case, at its highest, consisted of the accused being found in a locked house with his mother, with blood on his slippers. She referred to the evidence of Mrs Doley as to the good relationship between Mrs Waller and the accused and pointed out that there was no apparent motive for the accused to commit this crime. The fitting of the new lock was evidence as to Mrs Waller’s state of mind also intruders in the house prior to this particular day. The fact that on this occasion the house was locked when it was generally unlocked, together with the behaviour of the accused, as well as his soiled state (which appeared to be inconsistent with his normal behaviour) and his failure to respond to his sister, were equally consistent with a man in fear who had locked himself in for safety as with a man who was aware of his guilt, as suggested by the prosecution.
Ms Davey referred to the droplets of blood (shown in photo 7 of P2) which were located by Heath on the kitchen floor near the door. That blood was analysed as being that of Mrs Waller, but there was, however, no evidence as to how that blood came to be there. Mr Brebner acknowledged that was so, but submitted that the existence of a potentially unsolvable mystery could not of itself create a reasonable doubt, and suggested that it was possibly explicable on the basis that the accused had changed out of his slippers into his boots and had taken something outside before locking himself in. On the other hand, Ms Davey submitted that those droplets of blood suggested that someone other than the accused had entered or left the house, possibly dripping blood from the weapon.
The evidence relating to the blood splatter is the particularly perplexing aspect of this matter. There is no doubt that the accused had not made any attempt to wash either himself or his clothing prior to the arrival of the police, yet no blood of the deceased was located on the accused or his clothes, other than the slippers which the accused must have been wearing at some stage that morning. The witnesses as to Mrs Waller’s appearance as she lay in the room, however, described a substantial quantity of blood around her head and upper torso. Ms Reeves said that if the blood had been collected, it would have amounted to over a litre.

Although the blood splatter evidence suggests a directional aspect away from the body, I find it difficult to accept that a person, particularly one with the intellectual limitations of the accused, could have effected such a brutal assault without getting a single drop of blood on his clothes or person. It is clear, however, that the accused’s slippers had some contact with Mrs Waller’s blood and that raises the possibility of that having occurred when the accused was kicking her in the course of the assault. The preponderance of blood was, however, located on the sole of the slippers and around the heel and that could equally have been the result of the accused walking in the blood subsequent to a third party’s attack upon his mother. As to this aspect of the matter, Ms Davey pointed out that if the accused had been the assailant, it was surprising that blood had attached only to his slippers and not to the lower part of his person or clothing.
The number of injuries suffered by Mrs Waller indicated that she was subjected to a number of blows. Dr Van der Linden Dhont thought that they would be multiple but could not say whether a weapon had been used. He recalled someone mentioning two linear marks on Mrs Waller’s back, but he had not seen them himself. He said there had not been any need to look at her back as that did not appear to be a fresh source of bleeding and his examination had been directed to treating Mrs Waller’s life-threatening injuries.
On the defence case, the failure of the police to locate a weapon, if used, suggested that the accused had somehow managed cleverly to conceal it before the police arrived but that seemed unlikely. The more probable explanation was that a third person had been involved and had possibly left the droplets of blood from the weapon upon departure.
A close examination of the evidence in this matter raises more questions than it answers. At the end of the day the lack of blood located upon the accused’s person raises a real doubt in my mind that he was in fact the assailant.
The prosecution has therefore failed to exclude, as a reasonable possibility, that a third person, as opposed to the accused, was responsible for the assault upon Mrs. Waller. In those circumstances, the prosecution has failed to prove beyond reasonable doubt an essential element of the charge of murder or the alternative count of causing grievous bodily harm with intent to cause grievous bodily harm. I therefore find that the objective facts of neither crime has been proved against the accused.
In view of that matter, it is unnecessary to determine the second question, namely whether the assault upon Mrs Waller was the substantial contributing factor in her ultimate death. Nevertheless I will comment on that aspect of the matter quite briefly.
The evidence of Dr John Anderson indicates that Mrs Waller had some vascular problem prior to the assault upon her. According to Professor Byard the cause of death was Deep Vein Thrombosis. The evidence as to whether that was the result of her immobility as a consequence of the assault or some other unrelated cause is unclear. Mrs Waller was an elderly woman who died approximately six months after the assault. Although the assault was undoubtedly a factor in her ultimate death, I am unable to be satisfied on the evidence that it was the substantial contributing factor. Accordingly, if I had been satisfied that the accused was the assailant I would have found him not guilty of murder but would have found the objective facts of the alternative charge of causing grievous bodily harm with intent to do grievous bodily harm had been established. As, however, the essential elements of neither crime has been established against the accused, I record a finding of not guilty and the accused is therefore discharged.