Regina v Cao

[2004] NSWCCA 61

CITATION:	REGINA v. CAO [2004] NSWCCA 61
HEARING DATE(S):	Wednesday 29 October 2003
JUDGMENT DATE:	22 March 2004
JUDGMENT OF:	Spigelman CJ at 1; O'Keefe J at 18; Greg James J at 19
DECISION:	The conviction and sentence for murder quashed; order an acquittal on that charge; order a new trial limited to the charge of manslaughter
CATCHWORDS:	Criminal law - appeal against conviction - certificate by trial judge - whether conviction unsupported by the evidence or unreasonable - tests to be applied by appellate court whether inference of necessary intent for murder available - whethre power to substitute a convictoin for manslaughter - new trial limited to manslaughter ordered.
LEGISLATION CITED:	Criminal Appeal Act 1912
CASES CITED:	King (1986) 161 CLR 423 Parker (1997) 186 CLR 494 Spies (1999-2000) 201 CLR 603 Gipp (1998) 194 CLR 106 Chamberlain (No. 2) (1984) 153 CLR 521 Cutter (1997) 143 ALR 498 Wright (1977) 15 ALR 305 Knight (1992) 109 ALR 225 MFA [2002] HCA 53 M (1994) 181 CLR 487 Whitehorn (1983) 152 CLR 657 Palmer (1992) 106 ALR 1 Morris (1987) 163 CLR 454 Dyers (2002) 192 ALR 181 G (NSWCCA, unreported 17 February 1992) Kyriakou (1987) 28 A. Crim. R. 50 Merritt & Roso (1985) 19 A. Crim. R. 360 O'Donoghue (1988) 34 A. Crim. R. 397 Coombe (CCA, unreported 24 April 1997) Khouzame [2000] NSWCCA 505 Kurtic (CCA, unreported 26 February 1996) Victorian Stevedoring v. Dignan (1931) 46 CLR 73 Builders Licensing v. Sperway (1976) 135 CLR 616 Raspor (1958) 99 CLR 346 Briginshaw v. Briginshaw (1938) 60 CLR 336 Ratten (1974) 131 CLR 510 Wilson (1992) 174 CLR 313
PARTIES :	REGINA v. CAO, Van Teo
FILE NUMBER(S):	CCA No. 60356 of 2003
COUNSEL:	Crown: M. Grogan App: R. Hulme, SC.
SOLICITORS:	Crown: C.K. Smith App: N. Velcic

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	No. 70055 of 2002
LOWER COURT JUDICIAL OFFICER :	Kirby, J.

No. 60356 of 2003

SPIGELMAN, CJ.
O’KEEFE, J.
GREG JAMES, J.

MONDAY 22 MARCH 2004

REGINA v. Van Teo CAO

Judgment

1 SPIGELMAN, CJ: I have read the judgment of Greg James J in draft. His Honour sets out the issues and summarises the facts. I agree with his Honour’s conclusion that it was the Appellant’s deliberate act of striking the side of the deceased’s head with the rod of a television antenna which caused her death. The critical issue, however, is whether or not the appeal should be allowed on the basis that the jury verdict should not be allowed to stand because of the state of the evidence with respect to the mental element of the crime of murder.

2 I do not see that the relevant evidence on the issue of intent turns on the jury’s advantage in seeing and hearing the evidence. If this Court holds a doubt on this aspect of the Crown case, then it is a doubt which the jury ought to have held and, accordingly, the Court would conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (M v The Queen (1994) 181 CLR 487 and 492-494.

3 In Knight v The Queen (992) 175 CLR 495, which the High Court referred to with approval in M at 493, footnote 36, a firearm discharged during a struggle. The issue was the state of mind of the Appellant and whether there was a hypothesis consistent with innocence that was open on the evidence with respect to an intention to kill on a count of attempted murder. (See Knight at 502-504 and 511-512.) Three judges of the High Court concluded that such an inference could not be excluded because the rifle could have been fired as a result of the struggle. Two judges concluded that it was open to the jury to infer an intention to kill.

4 In R v Cutter (1997) 94 A Crim R 152, the Court was also concerned with an offence under the Criminal Code of Western Australia which required an intent to kill. Three judges of the High Court concluded that in the particular circumstances of the case, including the partial intoxication of the Appellant and other circumstances, an act of stabbing with a knife was not such as to require a conclusion of an intent to kill. The majority substituted a conviction for a lesser offence of unlawful wounding. Again, two judges of the Court dissented.

5 Each of Knight and Cutter turn, in the event, on an overall assessment of the evidence. Although each case enunciates or applies principles which are binding on this Court, the actual outcomes in each case turned on the particular facts. That both cases involved split three to two decisions indicates the difficulty of determining an issue of this character.

6 In the present case the evidence relevant to the issue of intention was in a very narrow compass. There was some evidence of argument between the deceased and the Appellant. The various statements made by the Appellant, said by the Crown to be lies, were available to be placed in the balance on this issue. Most significant, however, was the particular nature of the injury that was inflicted on the deceased and what that might reveal about the Appellant’s state of mind.

7 The statements said to be lies were entitled to be given significant weight by the jury on the issue of whether or not a deliberate act on the part of the Appellant was the cause of death. The expert evidence was such as to refute the alternative hypotheses of accident or a self-inflicted wound as advanced by the Appellant. However, this conclusion does not require that significant weight be given to the identified lies on the question of intent.

8 The relevant intent under s18 of the Crimes Act 1900 is either an intent to kill or to inflict grievous bodily harm. The various explanations put forward by the Appellant in the immediate aftermath of the events in question do, once refuted as they were, point to an involvement on his part in the actus reus of the offence, i.e. that an act of his caused the death. However, in my opinion, such lies are entitled to minimal weight on the mens rea of the offence. An attempt, by an obvious suspect, to direct attention away from himself can be fully explained by a desire to deny any material involvement. Although not irrelevant to intent, it says little about it.

9 As Greg James J has shown, the evidence in this case identifies a peculiar injury. It was an injury that was inflicted with great force; with an extraordinary degree of precision in terms of its angle; it required a lack of movement by the victim’s head, including any caused by the impact of the forceful blow and, somehow, the weapon stopped penetrating the brain after a few centimetres.

10 The expert evidence called by the Crown in this case did not address, in terms, the question of how it could be that the Appellant, by a deliberate act, would be capable of inflicting a wound of this precise character. The expert evidence was directed to the statements made by the Appellant which may have given rise to a hypothesis consistent with innocence, i.e. either the theory that the antenna rebounded off the door or that the wound was self-inflicted by the deceased.

11 Significantly, however, the expert evidence left the jury without firm guidance on one particular feature of the wound that could be of significance on the question of intent. This feature is the fact that the antenna penetrated only a short distance into the skull when there was nothing in the nature of bone or any impediment to its further penetration. The jury, and this Court, is left to assess the issue on the basis of a limited range of facts.

12 First is the nature of the implement used to inflict the wound. The Court is not here dealing with a gun or a knife, where the very use of such a weapon may point to an intention to inflict grievous bodily harm (cf Knight and Cutter supra). Nevertheless, the television antenna is metallic, very rigid, with a small diameter, not as sharp as a knife but capable of wounding and of penetration. Its use in anger clearly suggests an intent to cause actual bodily harm. The issue is the extent to which it indicates an intent to inflict grievous bodily harm, which is required for the offence of murder.

13 Second, is the limited penetration of the brain. The only suggestion made by the Crown expert witness in this respect was that the antenna could have been held within three centimetres of its tip. If that be so, and it seems to be the only hypothesis advanced in this regard, then, when combined with the nature of the rod to which I have referred above, it appears to me to leave open the possibility that whilst wounding was intended, the infliction of grievous bodily harm may not have been intended.

14 The Crown relied on the proposition that by holding the antenna in that way, flexion involved would be avoided and, accordingly, the penetrative capability by reason of maximising the amount of force at the point of penetration would be greater. On this basis, the very act of holding the antenna in the manner it was most probably held was such as to ensure an actual penetration of the skull. Looking at the actual exhibit, this appears to me to be unlikely. The antenna is rigid and does not give the appearance of flexibility.

15 Third, the Crown relied, in particular, on the fact that a deliberate act by the Appellant was aimed at the victim’s head. That, it submitted, strongly indicated an intention to inflict grievous bodily harm because of the particular sensitivity of any injury to the head. This, it appears to me, is the strongest element tending to support the Crown case. I have, however, concluded that, of itself, in the absence of reinforcement by other evidence, it is not enough.

16 What constitutes really serious injury is, of course, a question for the jury. However, the act of attacking the head of a victim with an object of the character used here, is not so inherently likely to cause such injury as to constitute a sufficient basis, on its own, for an inference that the assailant intended to inflict such an injury. The hypothesis that the intent was to inflict some lesser degree of harm was reasonably open.

17 Subject to the above, I agree with the reasons of Greg James J and with the orders his Honour proposes.

18 O’KEEFE, J: I have read in draft the judgments of the Chief Justice and Greg James, J. Subject to the matters set out in the judgment of the Chief Justice, I agree with the orders proposed by Greg James, J. and with his reasons.

19 GREG JAMES, J: The appellant, Van Teo Cao, appeals against his conviction and seeks leave to appeal against the sentence imposed upon him by Justice Kirby in the Supreme Court following a trial before his Honour and a jury. He was convicted of having murdered Karolina Zizius on 22 May 2001 at Villawood. It was the Crown case that the appellant had, on 13 May 2001, inflicted the injury upon Ms. Zizius that nine days later occasioned her death.

20 On 8 August 2003, the appellant was sentenced to imprisonment for 15 years. That sentence was directed to commence on 8 July 2003 and to expire on 7 July 2018. A non-parole period of 10 years and six month, expiring 7 January 2014 was fixed.

21 The appellant had been arrested on 13 May 2001 but had been on bail for most of the time prior to the verdict of guilty, which was delivered on 18 July 2003. Thereafter, he was in continuous custody. The trial judge fixed the commencement date of the sentence to reflect that fact and the previous 10 days custody.

22 The grounds of appeal against conviction are:-

“1. The verdict of the jury should be set aside as unreasonable.
2. The verdict of the jury cannot be supported having regard to the evidence.
3. There was a miscarriage of justice in that the evidence in the Crown case was not capable of excluding the significant possibility of accident as the cause of death of the deceased, which was a primary issue in the trial.”

23 The application for leave to appeal against sentence is on a ground that the sentence passed is asserted to be manifestly excessive.

The statutory context, the grounds and the trial judge’s certificate

24 Section 5(1) of the Criminal Appeal Act 1912 provides the statutory basis for the entitlement to appeal:-

“A person convicted on indictment may appeal under this Act to the court:-
…
(b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and
(b) with the leave of the court against the sentence passed on the person’s conviction.”

25 On 18 July 2003, the learned trial judge certified that the appellant’s case was a fit case for appeal against conviction upon the ground that there was, in his view:-

“An issue of substance, namely, whether the Crown excluded accident as a reasonable possibility and whether there is a significant possibility that an innocent person has been convicted.”

26 It is rare for a trial judge to give such a certificate, even though s.5 of the Criminal Appeal Act 1912 contemplates that course.

27 Although the certificate raises specifically the question of accident, it also raises the appropriateness generally of the conviction for murder. In my view, the certificate and, as will be seen, the grounds of appeal, require an examination of whether the murder conviction should stand and, if not, what consequential order should be made.

28 By reason of the provision of the certificate and the effect of s.5, the appellant has a right to appeal against the conviction on a ground involving a question of fact alone or question of mixed law and fact. Such leave as might otherwise have been necessary for an appeal on such grounds is not required.

29 Grounds one and two of the grounds of appeal refer specifically to s.6(1) of the Criminal Appeal Act 1912. Sections 6(1) and (2) provide:-

“(1) The court on any appeal under s.5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under s.5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.”

30 Section 8(1) provides:-

“On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.”

31 The power of this court to substitute a verdict on an alternative count is provided for by s.7(2)

“7(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

32 The power to remit the matter to a trial judge or court of trial for re-sentencing is given by s.12(2):-

“12(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.”

33 Should an alternative verdict be substituted, it is preferable to remit to a single judge to preserve the prisoner’s right to seek review in this court.

34 The powers to order a new trial or to substitute a verdict are circumscribed. It would not be possible to order a new trial of a count the conviction on which had been set aside as unsupported by the evidence: Regina v. Lesley Maurice King (1986) 161 CLR 423; Regina v. David Parker (1977) 186 CLR 494.

35 The power to substitute a verdict is only available if the jury must have determined the elements of the alternative offence: Regina v. Spies (1999-2000) 201 CLR 603.

36 Those sections I have set out provide for the general powers of the court in dealing with appeals. I now turn to the grounds of appeal.

37 Ground three refers to a particular aspect of the more general contentions raised by grounds one and two. The three grounds raise the adequacy of the evidence and the inferences that might be drawn from it to establish the facts from which the jury’s conclusion of guilt might flow.

38 The statutory provisions, the giving and the content of the certificate and the content of the grounds of appeal make it desirable I review shortly the law concerning the appropriate approach to the court’s function in such cases as this.

39 The grounds of appeal and the certificate plainly enough raise the facts in the case for the court’s consideration: see Gipp v. The Queen (1998) 194 CLR 106; Chamberlain v. The Queen (No. 2) (1984) 153 CLR 521; Cutter v. The Queen (1997) 143 ALR 498; Wright v. The Queen (1977) 15 ALR 305 and Knight v. The Queen (1992) 109 ALR 225.

40 As I have said, by reason of the provision of the trial judge’s certificate, no leave to appeal is necessary for the court to consider the grounds of appeal put forward here, even if leave might have otherwise been required, for the consideration of grounds which would require the court, under s.6(1), to undertake a review of the evidence at trial to ascertain whether a miscarriage has occurred.

41 On such an appeal as this, the underlying question is whether the verdict is, in the opinion of the court, unreasonable, having regard to the evidence and the inferences, the strength of which the court must assess: MFA v. The Queen [2002] HCA 53 at para.36.

42 In order to ascertain whether the verdict was unreasonable, It is necessary for the court to consider whether upon the whole of the evidence it was reasonably open for the jury to be satisfied beyond reasonable doubt that the accused was guilty: see M v. The Queen (1994) 181 CLR 487 at 492.

43 Although the authorities refer to the test in those terms, the question is not a mere one of sufficiency of evidence. Insufficiency of evidence is a matter of law. Even where there is a sufficiency of evidence, if the court is left with a doubt which the jury’s advantage of seeing and hearing the witnesses does not explain, the appeal must be upheld. Even if there is sufficient evidence, if it is inadequate or so lacking that there is a significant possibility an innocent person has been convicted, the appeal must be upheld (see M (supra); MFA (supra at paras 44 to 61); Whitehorn v. The Queen (1983) 152 CLR 657; Chamberlain (No. 2) (supra); Palmer v. The Queen (1992) 106 ALR 1. The reference here to an innocent person being convicted should be considered as a reference to the accused’s guilt of the crime of which he was convicted being established by the evidence beyond reasonable doubt.

44 The grounds relied on here do not assert an insufficiency in law of the evidence but do assert a miscarriage in the sense that it is submitted the court would be left with such a doubt as the authorities refer to, that is that the court would, after considering all the evidence, be left with a significant possibility of a wrongful conviction.

45 In considering those questions, the court must assess not only the sufficiency but also the nature and quality of the evidence and its reliability as well as its credibility: (Morris v. The Queen (1987) 163 CLR 454 at 463) to ascertain whether the conviction is attended by doubt or whether it should stand.

46 In performing this function, the court must pay full regard to the role of the jury as primarily entrusted with the responsibility of reaching the verdict and to the jury’s benefit of having seen and heard the witnesses, so far as that latter consideration may apply to the particular circumstances of the case. The court is not bound by the findings of the jury as to credibility and will set aside the verdict even taking into account the advantages enjoyed by the jury where there has been a wrongful conviction in the sense that there is a significant possibility that an innocent person has been convicted: M (supra).

47 Where the court experiences a doubt, having reviewed the evidence, it will usually conclude that the jury should have experienced that doubt unless the jury’s advantage in seeing and hearing the evidence explains the difference in the conclusion: see M (supra) and MFA (supra).

48 Where, as here, as will appear, the accused did not give evidence, that fact cannot be taken into account for the purpose of considering whether the Crown case was sufficiently strong: Dyers v. The Queen (2002) 192 ALR 181.

49 Where a certificate has been provided by a trial judge who has given consideration to the matters referred to in the certificate, unlike the position where those matters have not been so considered (see Regina v. G (NSWCCA, unreported 17 February 1992), as I have said, there is no leave necessary to appeal on fact and hence the principles referred to in such cases as Regina v. Kyriakou (1987) 28 A. Crim. R. 50 (the correctness of which was doubted on the special leave application in the High Court, special leave refused on other grounds); Regina v. Merritt & Roso (1985) 19 A. Crim. R. 360; Regina v. O’Donoghue (1988) 34 A. Crim. R. 397; Regina v. Coombe (CCA, unreported 24 April 1997); Regina v. Khouzame [2000] NSWCCA 505 and Regina v. Kurtic (CCA, unreported 26 February 1996) do not apply to restrict the court’s review of the facts when acting in accordance with the views of the High Court in MFA (supra) and M (supra).

50 Although the appeal is not a re-hearing on the transcript, as to which: see Victorian Stevedoring v. Dignan (1931) 46 CLR 73 and Builders Licensing v. Sperway (1976) 135 CLR 616, it is an appeal on fact in which it is incumbent on the court to scrutinise the evidence to determine what findings of fact should be made. This task is to be performed by reference to the transcript and the exhibits tendered at the trial so that light may be cast upon the reasonableness of the conclusion at the trial, as in an appeal from the conviction on the basis that the verdict cannot stand. The court must review not only essential primary findings of fact, but also inferences that might have been drawn from them and the reasonableness of the drawing of those inferences in all the circumstances: see Chamberlain (No. 2) (supra).

51 Although this court has not, in performing its function under s.6(1) of the Act, adopted the approach taken in the United Kingdom of setting aside a conviction where there is “a lingering sense of doubt” and has not sought to replace the decision of 12 jurors by the decision of three judges: (see Raspor v. The Queen (1958) 99 CLR 346), it, nonetheless, is concerned in performing its function under this ground to examine whether it is persuaded that the conviction in all the circumstances and for whatever reason should not stand.

52 These observations are of particular significance where, as here, the Crown at trial made a circumstantial case and where there was, as will appear, only limited evidence from which was sought to be drawn inferences of fairly precise matters of conduct and intention. The approach of the High Court sitting as it did to consider such questions of fact in Knight (1992) 109 ALR 225; Chamberlain (No. 2) (supra) and particularly in Cutter (supra) is instructive.

53 Given the approach to judicial satisfaction referred to by Sir Owen Dixon in Briginshaw v. Briginshaw (1938) 60 CLR 336, and given that the approach of Sir Garfield Barwick in Ratten v. The Queen (1974) 131 CLR 510 concerning how this court should approach the question of whether it is persuaded that the jury must have had a reasonable doubt has not commanded the field, nonetheless, where, as here, a certificate has been given by the trial judge to enable, as of right, a challenge to the factual conclusions, in my view, even affording the necessary respect to the views of the jury, the findings of facts, their reasonableness and the reasonableness of the inferences to be drawn from them requires the closest scrutiny and involves a necessity for the court to proceed as did the High Court in the three cases (and particularly the last of them, Cutter) to which I have referred.

54 Should the court conclude that the conviction of murder should not stand, it remains to consider whether the alternative verdict of manslaughter might be substituted and, if so, what course should be then taken in consequence for re-sentencing or whether a new trial, limited to manslaughter, should be ordered.

The Crown case at trial

55 The Crown case was that on the morning of 13 May 2001, the appellant returned to his home from the markets with some friends. He entered the bedroom where he and the deceased, his girlfriend Karolina Zizius, had an argument, in part regarding her use of heroin. The appellant then struck the deceased with a broken off portion of television antenna. The force and direction of the blow caused the antenna to penetrate, at a vulnerable point of her skull into a distance of about three centimetres. She died from the injury on 22 May 2001.

56 After the injury was inflicted, the appellant told a number of persons that the deceased had thrown the portion of the aerial at him and it had bounced off the door or a wall, hitting her in the head. Expert evidence from a pathologist and a bio-engineer referred to the peculiar nature of the injury and concluded that it could not have been caused in the way the appellant had said. Nor could it have been self-inflicted by the victim. The appellant’s statements as to how the injury was caused were asserted by the Crown to be lies explicable only (since only the appellant and the deceased were present) on the basis he had caused the aerial to penetrate her skull and was conscious that he had done so with intent to cause her really serious injury or, at least, unlawfully. The expert evidence was capable of excluding any feasible possibility of accident. To strike or force the end of the aerial, even if only for three centimetres into the deceased’s skull and brain, was capable of being regarded as unlawful and dangerous within the test posed for manslaughter by the High Court in Wilson v. The Queen (1992) 174 CLR 313.

57 The appellant did not give evidence so I turn to review the evidence in the Crown case. Crucial statements by the appellant are in bold.

The evidence

58 Van Tac Nguyen was a friend of the appellant. On the morning of 13 May 2001, the witness went with his wife to the appellant’s flat at Villawood. After spending between one and two hours there, the witness then went to Flemington markets with his wife, the appellant and the appellant’s daughter, Jasmine. The appellant’s girlfriend, Ms. Zizius did not go with them to the markets. The appellant had told the witness that she was asleep. Upon returning to the appellant’s flat between 1.00 pm and 2.00 pm, the appellant spent about five minutes washing dishes before the witness’ wife told him that she would finish washing them. The witness was testing an electric alarm clock he had bought and saw the appellant walking around the flat. He was still testing the clock when the appellant suddenly “burst out of a door … and yelled out, ‘Call an ambulance, call an ambulance, Karol is dying’”. The witness had not heard any noise before this happened. The witness responded that he didn’t know the phone number for the ambulance. The appellant ran out the door and yelled at some people to come in. The witness then ran into the room and saw Ms. Zizius lying with half her body in bed, her legs on the floor. He saw a steel rod the size of a chopstick on the bed about 20-30 centimetres away from her head. He pushed it onto the floor. A neighbour came to help the witness place Ms. Zizius fully on the bed and together they tried to resuscitate her. When the ambulance officers arrived, the witness went into the lounge room. At this time, the appellant was “outside the bedroom. Walking up and down, worried”. After the ambulance officers carried Ms. Zizius away, the witness asked the appellant what happened. The appellant told him in Vietnamese that “She was angry with me, she throw that at me and it bounced back and hit her”. The appellant then left to follow the ambulance.

59 Chuyen Thi Nguyen was the wife of Van Tac Nguyen. She said that on the morning of 13 May 2001, she went with her husband to the appellant’s flat at Villawood. She did not see Ms. Zizius there. When she asked the appellant where his girlfriend was, he told her that she was still asleep. The witness went with her husband, the appellant and the appellant’s daughter to Flemington Markets. Upon returning to the appellant’s flat, the witness saw that the appellant was washing glasses and dishes and told him to let her do that. The appellant walked away and the witness washed the dishes and began preparing food. She did not pay attention to where he was. While she was preparing the food, she heard the appellant call out in Vietnamese “Come here and help, she’s fainted” or “Come here and help, she’s dying”. She had not heard any sounds of people arguing before she heard the appellant call that out. She then saw her husband run into the bedroom and heard a voice asking an ambulance to be called. She told the appellant to call Ms. Zizius’ mother. She picked up the phone and handed it to him and he made the call. The witness said that the appellant kept running up and down the stairs while waiting for the ambulance officers to arrive, swearing and cursing that it was taking so long. When the ambulance officers arrived, she saw the appellant running in and out of the room where the ambulance officers and Ms. Zizius were, and up and down around the house. She also saw her husband going in and out of that room. The ambulance officers then took Ms. Zizius away.

60 James Abbott lived in the flat below the appellant. He was sitting on some stairs outside the block of units with his wife, daughter and two granddaughters when he saw the appellant arrive home shortly before 2.30 pm. About five to 10 minutes after that, he saw the appellant run down the stairs with a mobile phone in his hand and give it to his wife, saying “Ring the ambulance, I think she is die. She is dying”. The witness asked the appellant “What’s the matter?” and the witness replied, “She threw the aerial at the wall and a piece went into her head”. The witness then ran up the stairs and into the room where Ms. Zizius was lying on the bed. He said that her body was fully on the bed and that she was shaking. He saw a piece of the TV aerial on the bed near her. He did not see any blood. He and an Asian man tried to resuscitate her. The appellant was very upset about how long the ambulance was taking to arrive. He said that the appellant wanted to take her downstairs for the ambulance, but the witness said, “No, leave her there, she’ll be right now until the ambulance comes”.

61 Jeanette Abbott lived with her husband in the flat below the appellant. She was on the steps outside the building when she saw the appellant arrive home after 2.00 pm on 13 May 2001. About 10 minutes after she saw him arrive home, the witness saw the appellant stick his head out from upstairs and call “Ring ambulance, ring ambulance, Karolina dying”. The appellant then ran down the stairs and gave the witness his mobile phone and ran back upstairs. She called 000. Shortly afterwards, the appellant stuck his head out and said something like, “Are they coming? Ring again”. The witness then asked “What’s wrong with Karolina?” and the appellant answered, “An aerial gone through her head. I think she has been electrocuted”. Later in her testimony, the witness said that “he didn’t say she did it, or he did it – he just said, ‘Pulled aerial out the head’, because he was not very good with English”.

62 Cassandra Abbott was visiting her parents, James and Jeanette Abbott on the afternoon of 13 May 2001. During some visits to her parents’ home in the period before 13 May 2001, she had heard arguments coming from the appellant’s unit, in the form of yelling, screaming and banging, as if things were being thrown around or smashing. Such arguments would last half an hour or longer. After 2.00 pm, as she was sitting on the steps outside the building, she saw the appellant come running down the stairs with a mobile phone in his hand, which he passed to the witness’s mother. The witness and her father went upstairs and into the bedroom. She saw Ms. Zizius lying on the bed, shaking, with one leg hanging off the bed. The witness saw the television aerial on the bed next to her. Somebody asked the appellant “What happened?” and he “said that she couldn’t get the TV to work, the picture, so she pulled the aerial out and it hit the wall and come back and hit her in the head”. The witness noticed that the television in the room was on, but that it was “all fuzzy … all hazy; no picture”.

63 Krystyna Zizius was the mother of Ms Karolina Zizius. She testified that Ms Zizius had been living with the appellant for roughly three years, on and off. She was right handed and although she was tall, she was weak. The witness described her as a “no muscle girl”. She agreed her daughter had a problem with heroin addiction. On 13 May 2001, the witness was at her home when she received a call from the appellant. He was very upset. It was a quick conversation. He yelled, “Mum, come quick, I think Karolina is dying”. The witness left immediately and arrived at his flat three to four minutes later, just before the ambulance officers. She saw her daughter lying completely on the bed, shaking. She did not see any blood. She testified that the appellant “was yelling something happened to her. He don’t know. He been … saying about the antenna … that she chucked somehow antenna and she fall down, or something like this. He don’t know. He been saying like – he don’t know, and he said, “I don’t know, but something happened”. She agreed that when the ambulance officers were treating Ms. Zizius for drug overdose, the appellant was screaming and shouting words like, “Don’t worry about the drugs, help her, she has an injury”. The witness identified her daughter’s handwriting in a notebook later found in the bedroom that said: I was planning to kill myself and told Centrecare a lot of my sad and other thoughts.

64 Darren Pedemont was in the first ambulance to arrive at the appellant’s flat. The appellant, who seemed to have limited English said “Girl on bed. Girl on bed.” The witness went into the bedroom and saw the patient lying in an agitated state on the bed. Her eyes were rolling, she was hyperventilating and unable to speak; all of which indicated some form of brain injury or a hypoxic state. The patient’s posture indicated brain injury. The appellant said, “Hurry up, hurry up. Help her”. The appellant appeared so agitated that the witness’s ambulance officer partner told him to “Slow down, slow down”. The witness asked what happened, and the appellant replied, “throw aerial, hit wall, throw aerial hit head” and said that when she threw the aerial, he left and closed the door. The appellant produced two 30 centimetre rods from the floor beside the bed and held them horizontally. He then gestured as if he removed the rod from the head. He said something similar to “Pull out, pull out”. The witness noticed some marks on the patient’s arms that were similar to puncture marks from intravenous drug use. Another ambulance officer asked the appellant, “Has the patient been using drugs today?” The appellant replied, “Yes, roughly, 11 o’clock”. The witness began to ventilate the patient and the appellant left the bedroom. Upon further examination of the patient, the witness found a slight little skin tear about one centimetre above the left ear.

65 Jacquelyn Christian was an ambulance officer who was in the first ambulance to arrive at the appellant’s flat. The patient was lying on the bed and appeared to be unconscious. She asked the appellant what happened and he said “something to the effect that a TV aerial had hit the patient in the head”. At some stage he pointed to two pieces of rod. The witness enquired several times as to what had happened and the appellant, “got angry with us and said, ‘Just treat the patient’ and again … that the aerial had hit her in the head”. He also showed the witness a small wound to the patient’s head. The witness believed that she asked the appellant how the rod came out, but could not say whether she received an answer. A lady identifying herself as the patient’s mother told the witness that the patient had hepatitis. The appellant told the witness that she had some heroin at 11.00 am that day. The patient did not respond to treatment for narcotic overdose, indicating that there was another cause for her unconsciousness.

66 Peter Goodwin was a paramedic with the Ambulance Service of NSW. He was in the second ambulance to arrive at the appellant’s flat. He observed another ambulance officer intravenously administer treatment for narcotic overdose. There was no response, indicating that the patient’s unconsciousness was not due to narcotic overdose. The witness did not at any stage observe any injury to the patient, but noticed that she exhibited an unusual posturing, indicative of significant head injury. It was explained to him that there was a slight wound above her left ear, which had been detected by the treating officers. The witness drove the patient to Liverpool hospital.

67 Linda Lodge was in the second ambulance to arrive at the appellant’s flat. As she was walking down the hallway to the bedroom, the appellant, who was obviously agitated, said something along the lines of, “Hurry up and help her”. The witness administered a drug to treat narcotic overdose, but the patient did not respond to this treatment. On closer inspection, the witness found a puncture wound behind the left temple area. She then asked the appellant if the aerial had fallen out or had been pulled out. The witness did not recall any verbal response from the appellant, but said that he indicated that it had been pulled out by putting both hands beside each other as if they were holding or grabbing something.

68 Geoffrey Fudge was the last paramedic to arrive at the appellant’s flat. He observed the other paramedics attempting to revive the patient. The witness noticed that the patient displayed a response consistent with brain injury. Another officer showed the witness an injury above the patient’s left ear. Another officer showed him the TV aerial at the foot of the bed. Whilst the patient was being treated, the appellant was constantly walking in and out of the bedroom. He was agitated and speaking very loudly. The witness formed the impression that he had limited English skills. He asked him what had happened. The appellant “indicated the patient had left the house that morning, had a hit of heroin, had an argument with her boyfriend, returned home and picked up a piece of TV antenna and hit herself on the side of the head and then fell unconscious on the floor”. The appellant made a gesture as if to demonstrate: “He picked up the piece of antenna and flicked himself towards the head”. The appellant travelled to Liverpool hospital with the patient. The witness called the police and waited at the flat until they arrived and took them to the bedroom.

69 Senior Constable Simon Clark attended the appellant’s flat at around 3.00 pm on 13 May 2001. The witness spoke to the appellant at Liverpool hospital, who told him “Karol got the antenna and hit herself on the head with it”. At the same time, the appellant indicated with his hand made into a fist, held to the side with the blunt end of the fist going towards the side of his head. The witness then had a further conversation with the appellant, which was recorded in his police notebook. After recording the conversation in his notebook, the witness read it back to the accused several times. The accused signed the entry in the notebook, which read in part:-

“When I got home Karolina Zizius, my girlfriend was there and she started to argue with me. She was arguing with me because I left her at home alone, and I did not wake her. And she want heroin and I had none. Karolina got upset at me and cucked (sic) [chucked] the antenna at me. I running out door. Part of the antenna come out and hit door and it come back and hit Karol in head. Karol fell down and did not move. I say ‘Karol, Karol’ but she not wake. I call my friend and tell him that Karol die that is when we call ambulance.”

70 Constable Paula Scott was present at Liverpool hospital when she heard Constable Clark ask the appellant what happened at his flat that afternoon. She heard the accused reply, “Karol got the antenna and hit herself on the head with it” and saw him make a gesture with his hand in a loosely formed fist, moving towards the side of his head around his ear. The witness was present during the conversation between Constable Clark and the accused and testified that his notebook entry of the exchange was an accurate record of what was said by the accused.

71 Detective Senior Constable Garth Hazell interviewed the appellant on the evening of 13 May 2001 at Fairfield Police Station. The following is an extract from the ERISP, which was conducted through an interpreter:-

“A 42: Yeah, the thing is when she upset and she took the antennas and chucked it. By that time I ran out, I ran out the door, so I didn't know, but I heard the noise and I turned back then I saw it happen like that ...
A 43: Yes, [Senior Constable Clark's notebook statement] is right, but about the antenna came and hit the door, I didn't know.
Q 61: [the injury is described] Can you tell us anything about the injury?
A 61: I didn't see it.
Q 62: Do you know how she received that injury?
A 62: No.
A 64: Like, I mean, she became upset at me and she just took the antenna and chucked, chucked it at me.
Q 66: How did the antenna end up lodged, or penetrating her skull?
A 66: I didn't know, because when she took the antennas and chucked it at me, I ran out, but after that I heard the noise, that's why I turned back and I found out thing already happened.
Q 70: Where was she when she threw the antenna at you?
A 70: She was sitting on the bed.
Q 71: And where were you when she threw the antenna at you?
A 71: I stepped out of the door because she asked me about heroin and I said, No I didn't.
Q 72: If she threw the antenna at you, how did she receive an injury to her head?
A 72: Yeah, because when we were in the room and she asked me for heroin, then I said that I had none and she became upset and then I ran out, I stepped out the door and I heard a noise, that's why I came back, then I saw what happened?
Q 74: Did she have any injuries to her head?
A 74: I have no idea. I saw, I saw the antenna was where, near her head, so I took it and I threw it [on the floor].”

72 Shortly after the interview, the appellant and interpreter accompanied the witness back to the appellant’s flat while a search warrant was executed. The walls in the bedroom appeared to be cement rendered, the roof appeared to be of a gyprock construction and the door leading from the hallway to the bedroom was made out of timber with a hollow centre. The frame around the door was metal, as was the doorknob. Photographs taken of the bedroom reveal a slightly curved mark on the bedroom wall, a mark on the door, and a blood smear on the bed.

73 Gordon Bullock was present during the execution of the search warrant at the appellant’s flat. He saw that there was an indentation on the bedroom side of the door that appeared to be about level with the top of the bed.

74 Nicole Radcliffe was a psychologist employed by CentreCare. Ms. Zizius began seeing her on 3 October 2000 on account of her heroin use. On 19 December 2000 she told the witness that she had been suicidal in the past because she could not earn enough money. On 29 January 2001, she told the witness that she had been feeling very sad and had been thinking a lot about killing herself and although she had no specific plan, she had thoughts of using a gun, pills or hanging herself. She told the witness that she would however not kill herself because she did not know how to do it properly and did not want it to go wrong and she would go to hell if she did. The witness’s professional assessment as at 29 January 2001 was that Ms. Zizius was not in fact suicidal. On 8 February and 18 April 2001 when the witness saw her again, Ms. Zizius was no longer feeling suicidal. There was never any mention of any violence in her relationship with the appellant.

75 Dr. Neil Langlois was a forensic pathologist who conducted an examination of the deceased two days after her death, 11 days after the incident at the appellant’s flat. He observed that she had a small wound that was six centimetres above and 1.5 centimetres behind the left ear hole. The wound measured 0.7 by 0.5 centimetres. There were also bruises on her right eyelids and bruising in very fine spots on both upper arms. The witness said that the bruises on the eyelids could be consistent with having been caused by the antenna. The witness noticed that there was a ”defect, or a hole, a window in the bone on the left side where the bone flap had been removed”. He said that the most striking feature of the wound to the head was that the outer surface of the skull bone was extremely punched out and very smooth and well defined and completely circular. He said it was his experience that to actually puncture the skull in this way requires velocity, such as seen in gunshot wounds to the skull. As the television antenna had a blunt end and just a small amount of bevel, it would have taken “extreme force” to produce such a hole in the skull. (By contrast, only a mild force would be required to inflict the sort of bruises seen on the deceased’s eyelids.) The wound tract was three centimetres long, and perfectly horizontal, parallel to the base of the skull, without any evidence of arcing or tumbling of the intruding object, and the bone fragment was situated at the end of the track. The witness thought this was highly significant because the brain itself is very soft and will offer no resistance to the extreme force that would be required to drive a blunt object through the skin and the skull:-

“Once the metal rod will travel through the brain, it could even exit through the other side like a bullet, unless something is there to constrain or stop it.”

76 He said that “the fact that it is limited to just three centimetres of travel within the brain itself suggests that something was restricting its movement, for example the hand holding it”. In cross-examination, he was asked whether such an injury could be caused where a person holding the antenna three centimetres from the end suddenly fell back and fell onto the object. The witness said that:-

“there may be sufficient force to make it enter the skull at that point. Of course, one has to contrive … the extraordinary coincidence of holding it three centimetres from the edge and gripping it well enough so that one has fallen on it and does not lose the grip and drive it through the brain … it would be a very firm grip around the rod.”

77 Thomas Gibson was a biomechanical engineer whose area of expertise involved looking at the actual forces and motions of an injury, so as to determine the cause. From the report of Dr. Langlois, the CT scan and the bone fragment (Exhibit R), the witness observed that the motion of the object that penetrated the brain was in a straight line from the point that it penetrated through the skull bone all the way until it stopped within the brain. The injury was consistent with having been caused by the television antenna (Exhibit L). The witness calculated that the force required to penetrate the skull in such a clear, circular shape was between 700 and 800 newtons, which is equivalent to the force that someone of 70-80kg would apply to the floor when standing up.

78 The witness performed some tests to see whether it was possible that the antenna may have bounced off the door, causing the same angle of mark found on the appellant’s bedroom door, and in such a way that it may still have had enough velocity to have penetrated a skull. He concluded that if the aerial had been thrown with enough force to penetrate a skull it would have first fully penetrated the door. He also conducted tests to see if the rod could have rebounded from another surface, such as the ceiling, door frame, door handle, or concrete-rendered wall. He found no other evidence of damage to these structures consistent with being caused by the rod. He said that if the rod had rebounded from one of those structures with the velocity to penetrate a skull, then a mark would have been discerned on them. He concluded that, “the explanation of a rebound penetrating skull was extremely unlikely”.

79 The witness also performed tests to see whether the wound might have been self-inflicted. These tests were conducted with a female test subject, who the witness described as being quite a strong woman, and of the approximate weight and height of the deceased. The tests revealed that it was very difficult for the test subject to apply any load at all with the left hand and she was not able to create sufficient velocity using her left hand to cause the injury. He said that it was “sort of possible” for her to have caused it with her right hand, “but it would be very difficult to do it because it requires … quite a long, complicated swing to get it in that position on the head … you have got to do it in a smooth swing, or you just can’t apply the load required to allow penetration to the skull”. He said it was “marginally” possible for the subject to create sufficient velocity or force using her right hand to cause the injury and that for somebody who was not as strong as the test subject, it would be “very difficult”. He concluded that it was “unlikely” that the injury was self inflicted, adding that it was “very difficult for the volunteer to make a nice neat linear impact” because of the tendency of the rod to rotate.

80 The witness did some calculations based on the scenario of the rod being held stationary and the deceased’s head falling onto the rod. He said that “the constraints that would have to be imposed for falling on the rod were such that it would be very difficult to get the clean impact that was required … it would be very difficult to keep everything in line so that you’ve got the neat puncture wound that occurred … the impact would have to be such that it wouldn’t cause the rod to move out of the way”. He said that it was “unlikely” that the injury could have been caused either by the deceased falling off the side of the bed and her head hitting the rod, or by the rod being stuck in the bedding.

81 However, the witness agreed that whether the wound was inflicted deliberately or accidentally, it would be a difficult wound to replicate. Similarly, regardless of whether the injury was inflicted by someone else or herself, it was unusual in that there was no longitudinal rotation.

82 Anh Nguyen was the Vietnamese interpreter for the appellant during his ERISP and during the execution of the search warrant at the appellant’s flat. When translating the word “chucked”, as used in Senior Constable Clark’s police notebook, she used the Vietnamese word “choi”, which the appellant also used when answering questions. The word “choi” can mean to throw, to fight, or to oppose. She translated it as “throw” because one cannot fight an antenna.

83 Although some of his accounts of what happened were given through an interpreter, or were given by the appellant in his second language of English, which he spoke poorly, it was clear in light of Ms Anh Nguyen’s expert evidence as to the contextual meaning of the Vietnamese word “choi”, that his version of events was that the deceased “threw” the antenna, which then hit another surface before penetrating her skull. The effect of the expert evidence of Mr. Gibson and Dr. Langlois is to persuade me that the deceased’s injury could not have been sustained in such a way nor accidentally, nor could the deceased have applied, as the appellant had said, the necessary force in the necessary manner to have inflicted the wound on herself. The suggested means by which the rod may have entered the deceased’s skull and brain without the agency of the appellant are simply speculative.

84 In my view, it is to be properly inferred that the appellant applied the force necessary to inflict the injury. This leads to the conclusion that, not only did the appellant do the act causing death, but the only rational reason for the appellant having advanced the version of events he did was to provide a false explanation in order to cover up the fact that he did so and thereby inflicted the injury in circumstances of which he was conscious as inculpating him in injuring her and so being responsible for her death. I conclude from this that his act was deliberate.

85 The finding that the appellant told these deliberate lies to the various witnesses as to the cause of the deceased’s injury, taken in conjunction with the expert evidence eliminating the possibility that the deceased’s injuries were self-inflicted or accidental, leads me to conclude beyond reasonable doubt that it was the appellant’s deliberate act of striking the side of the deceased’s head with the television aerial, which caused her death and that he was conscious of having so acted.

86 I am thus able to conclude that the appellant deliberately struck the deceased with the aerial and that it was that act which caused the aerial to penetrate her skull and brain and cause her death. However, for the conviction of murder to be sustained, it remains necessary to consider whether that act was accompanied by an intent to kill or to cause really serious bodily harm, the existence of which is proved beyond reasonable doubt. There is no direct evidence of the manner in which the appellant struck the deceased with the aerial.

87 As the lies either on their own or in conjunction with other evidence do not establish the manner in which the appellant struck the deceased, so any conclusion of any specific intent must depend upon the other evidence and what inferences can properly be drawn from it. It is therefore necessary to review the expert evidence further than I have already done to ascertain whether it is open on the evidence to conclude beyond reasonable doubt that the appellant intentionally directed the end of the aerial toward that particularly vulnerable area of the human skull or that he held the aerial in a manner which would show that when he struck he was deliberately intending that the end of the aerial would penetrate the skull.

88 The aerial, which was tendered in evidence and became an exhibit, consists of a smooth metal rod of about 35 centimetres length and about 0.5 centimetres in diameter. Because it is this thin and smooth, it is obviously difficult to grasp firmly. It is comparatively rigid in nature.

89 Dr. Langlois, in addition to the evidence to which I have already referred, gave evidence that the end of the rod was blunt but with a slight bevel; that the puncture hole was completely round, that the end of the rod had struck the deceased at a point where the thickness of the skull was usually about 0.2 (presumably the witness was referring to centimetres); that the path of the track went straight into the brain perpendicular to the skin and travelling horizontally to the base of the skull without deviating to the front or back or up or down in a very straight action, left to right, horizontally and straight; that the brain offered as little resistance as perhaps a jelly. It was Dr. Langlois’ opinion that, even given the vulnerable area of the skull, extreme force was required to drive a blunt object through the skin and into the skull, but little force for it to continue on into the brain. It was necessary, he thought, for something to constrain or stop the rod proceeding further into the skull after the initial puncture of the bone. For it to have penetrated no further than it did.

90 He referred to some bruising to the right eye as being an injury consistent with the right eye of the deceased being struck with an object of reasonably thin dimensions and was shown the portion of the aerial tendered in evidence, agreeing that its curved surface and its dimensions were such that it was an object that might have caused the injuries to the right eye. He had also described conjunctival haemorrhages, and an additional distinct aspect to the bruise. He was of the view that the aerial, which was shown to him, was of the kind that might have caused those injuries and that all those injuries might have been inflicted at the same time by a single blow.

91 He noted that the present injury had no longitudinal rotation or arching or tumbling evidence of the object and that it was necessary, in his view, that there be some feature of the injury which caused the rod to stop penetrating further into the brain. He said that the injury was consistent with the rod having been held with only a bit of it protruding and that if the hand holding the rod was very firm and somehow or other the rod got through the skull, that hand would be enough to stop the rod going any further. He did not ascribe to that scenario any degree of probability in his evidence.

92 The doctor described the force necessary in cross-examination as “I think it would take more than a little force to drive a blunt object through the skin”. He referred to the prospect of the injury having been sustained on a person falling, as involving an extraordinary coincidence and the rod being held three centimetres from the end and gripped firmly enough to prevent further penetration.

93 Mr. Gibson gave evidence from the engineering viewpoint of the cause of the injuries. He gave evidence that the degree of force necessary to penetrate the skull with the rod was about three quarters of what would be exerted by a 100 kilogram person standing on the floor, that is, that it penetrated by reason of force of approximately that which might be exerted by a body weight; that the rod had to be moving in a straight line from the point that it penetrated through the skull bone all the way until it stopped within the brain. When asked further questions about the degree of force, he concluded that, for a full penetration of the skull, a force of only some 400 to 410 newtons, rather than 700 to 800 newtons, was necessary. He indicated that a smooth swing would apply the load required to allow penetration to the skull and that the penetration of the skull could have been stopped by some gripping of the rod.

94 Mr. Gibson also gave evidence that the mass of the head would mean that the head had only to move a short distance to have the necessary kinetic energy, impacting on the rod if it was held inflexibly, for the rod to inflict such a wound, if the vulnerable point of the skull came into collision with the end of the rod. He gave evidence that it was difficult to make a neat linear wound deliberately and difficult for a neat linear wound to occur accidentally. He was asked:-

“Q. This was an unusual injury, because of that lack of rotation, if in fact it was deliberately inflicted, is that right? A. I don’t think you even have to add the deliberately inflicted. It is an unusual injury.”

95 He explained this reply referring to the body moving in a series of arcs. He also gave evidence:-

“Q. In fact, if it was done in a moment of passion, you wouldn’t expect it to stop three centimetres in the head – if it was done with force and passion, would you expect it to go right through the brain? A. Yes, we discussed that earlier, in terms of it, if it was done by somebody holding the rod, then there had to be some physical limit to stop it continuing.”

96 He had expressed the view that the injury was most unlikely to have been sustained by the deceased falling on the rod, whether by falling off the bed or the rod being jammed into the bed. He postulated that it was quite unlikely that the injury had been sustained by the head falling on the rod because one would not have expected the neat puncture wound. But his evidence did not rule out movement of the head as contributing to the sustaining of the injury. He referred to the flexibility of the neck and the prospects of the head rolling as militating against the suffering of such a clean puncture wound being occasioned by the deceased’s head falling onto the end of the rod.

97 The evidence, in my view, leaves open many relevant possibilities. It does not establish that the accused was holding the rod in such a way that a short portion of it projected beyond the upper most portion of his fist and he used it in a stabbing motion into the vulnerable area of the deceased’s skull and brain. Such a movement might well have indicated an intention to kill or cause serious injury. Indeed, it is not open on the evidence to know in what manner he held it or whether he was holding the rod in such a manner as to use the longer portion of it to strike the deceased or was holding it in the middle and his fist slipped due to the rod being so thin and smooth. I am unable to conclude there was not head movement or that in some struggle the shorter portion of the rod unintentionally entered her head when he was striking her.

98 These hypotheses I now refer to are merely to illustrate the unavailability of any positive proof of how the injury might have been sustained such as would carry with it, coupled with all the other evidence in the case, the inference of an intent to cause the deceased really serious injury.

99 Although I have described the act causing death as the deliberate striking by the appellant of the deceased with the rod, I am unable to so precisely define the manner in which that act caused the penetration of the skull as to be able to hold that it was accompanied by the requisite intention for the doing of that act to amount to murder.

100 It is for those reasons that I do not consider that it is open to find that the appellant intended that in striking the deceased the end of the aerial would penetrate her skull and brain. I take into account in this regard the peculiar nature of the injury and the location of the injury as well as its depth and its track. I have regard also to the other injuries to the eyes described by Dr. Langlois.

101 Even paying the fullest regard to the jury’s views, I consider that it is not open to conclude beyond reasonable doubt that the applicant deliberately caused the aerial to penetrate the deceased’s skull and brain and such a finding, in my view, would be necessary before it would be open to conclude beyond reasonable doubt there was intention to kill or cause really serious injury.

102 So I conclude that the murder conviction cannot stand since it was not open to the jury to accept beyond reasonable doubt that in the circumstances of this case, the act that caused the death of the deceased was so redolent of intention to kill or do really serious injury as to support the finding of guilt of murder(cf. Cutter (supra)).

103 The appellant submitted:-

“17. The Crown case could not prove beyond reasonable doubt that the injury causing death was deliberately inflicted in the light of the evidence of the two experts. At best, in the light of answers given in cross-examination, it placed an equal possibility on three propositions:-
(a) that the injury was deliberately inflicted by the deceased,
(b) that it was deliberately inflicted by the appellant, and
(c) that it was accidentally inflicted.”
18. In order to find the appellant guilty, the jury would have had to dismiss as unreasonable the defence hypothesis. In order to do that, they would have to reject the expert evidence that the explanation as ‘possible’ and could not be excluded. They would have to reject the evidence that the injury would be unusual if self-inflicted and would have to interpret his evidence that it would be unusual for such an injury to have resulted from a deliberate act of a human being as being consistent with proof beyond doubt that the injury was caused solely by human hand (and there was no such evidence at all) and that the appellant was the assailant. The evidence did not have that character or capability and there was no reasonable basis for rejecting expert evidence on one issue and rejecting it on another, nor for interpreting it in a manner contrary to the words used in evidence. The jury could not, by any rational process convert the words ‘possible’ into ‘impossible’ nor convert evidence of ‘possibility’ into proof beyond reasonable doubt. The verdict should be set aside and a verdict of not guilty substituted.”

104 However, I conclude that the evidence does persuade me the injury was caused by the appellant’s deliberate act for the reasons I have given. When all the evidence bearing on the question is considered, I am not left in doubt on that issue.

105 The Crown submitted:-

“The description that the alternative possibilities were unlikely remained for the jury’s assessment having regard to the totality of the evidence. The question the jury had to decide was whether alternative explanations presented as ‘reasonable’ in the sense that they had a doubt of that character about an element of the charge. The jury must have concluded that the alternatives did not create any such doubt.”

106 Such a submission mistakes this court’s role on an appeal such as this by confining the enquiry to what the jury assessed as having occurred, as does the submission made at paragraph 50 of the Crown submissions as follows:-

“The jury was aware of the competing issues in the trial. Here is no proper basis for concluding that the guilty verdict was available on the evidence.”

107 The discussion found elsewhere in the Crown submissions of how the injury was inflicted I consider is highly convincing in persuading me that the appellant did strike the deceased causing her death, but for the reasons I have given, I am unpersuaded that it was open to the jury to find the intent necessary for murder.

108 It might well be the case that a reasonable person in the accused’s circumstances would beyond reasonable doubt have appreciated that by striking the deceased, they were exposing the deceased to an appreciable risk of serious injury. But acceptance of this proposition beyond reasonable doubt, involves the acceptance of a number of factual matters which were not determined by the jury and on which the appellant is entitled to seek a jury’s decision. The objective test of dangerousness for manslaughter is different in nature to the subjective test of intent to cause grievous bodily harm, as is made clear by the views of the High Court in Spies (supra) per Gaudron, McHugh, Gummow and Hayne, JJ. at [6], [24 – see footnote (15)], [31]-[35], [39]-[42], [44], [49]-[50].

109 Having regard to those views, I consider the appropriate course is that a re-trial should be ordered, but limited to manslaughter, (s.8(1)) as there is evidence, which, unlike that on the murder charge, is, in my view, capable of being so accepted as supporting a verdict of manslaughter although, whether it will be accepted is a matter for a jury.

110 I propose orders that the conviction and sentence for murder be quashed, an acquittal on that charge be entered and that there be a new trial limited to the charge of manslaughter.

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Last Modified: 07/18/2007