Trussell v The King

Supreme Court of South Australia
(Court of Appeal: Criminal)
TRUSSELL v THE KING
[2023] SASCA 5
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
9 February 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - OTHER MATTERS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF DEFENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - EVIDENCE
On 10 September 2021, following trial by judge alone, the appellant was convicted of the murder of his de-factor partner, Ms Eden Kennett. At arraignment on 3 December 2020, the appellant pleaded guilty to manslaughter by excessive self-defence. That plea was rejected by the Director of Public Prosecutions (SA).
At trial, the prosecution alleged that in the lead up to her death on 15 December 2018, the deceased was subjected to at least two separate beatings by the appellant. The fatal injury was inflicted during the second beating. The cause of death was determined to be hypoxic-ischaemic encephalopathy due to prolonged hypotension resulting from laceration of the deceased’s liver and subsequent internal bleeding within the intra-abdominal cavity.
The prosecution case was that the appellant deliberately inflicted the fatal liver injury upon the deceased with the intention, at least, of causing grievous bodily harm.
The defence case relied primarily on the appellant’s police interview, and evidence, at trial. The appellant admitted his actions caused the deceased's death and conceded that they were, for the most part, deliberate and voluntary. He denied intending to kill the deceased or inflict grievous bodily harm upon her. It was the defence case that the prosecution could not establish beyond reasonable doubt the appellant's specific intent to cause grievous bodily harm, or that his actions were not in excessive self-defence. The trial Judge found that excessive self-defence and provocation did not arise on the evidence. The trial Judge found that the appellant had a specific intent to, at least, cause grievous bodily harm when he inflicted the fatal injury. The appellant was found guilty and convicted of murder.
The appellant appeals against the conviction on the following grounds:
1.The trial Judge’s reasons were inadequate in relation to (Ground 1):
a.      the finding that the appellant formed the specific intent to cause grievous bodily harm to the deceased, and in particular (i) the reliance on the deceased’s injuries; (ii) the failure to bring to account the psychological evidence as to the appellant’s mental condition; and (iii) the appellant’s lack of motive and post offence conduct;
b.      the exclusion of excessive self-defence; and
c.      the exclusion of provocation.
2.The trial Judge erred in failing to bring to account the deceased’s prior acts of violence and propensity for violence when (Ground 2):
a.      determining whether the deceased initiated the violent altercation and her subsequent conduct towards the appellant;
b.      assessing the appellant’s credibility in relation to the physical altercation and its escalation; and
c.      applying the burden and standard of proof to the issues in dispute.
3.The trial Judge erred in her directions as to excessive self-defence by (Ground 3):
a.      failing to bring to account the whole of the evidence on this issue, including (but not limited to) the deceased’s propensity for violence;
b.      making a finding that self-defence did not arise;
c. relying on evidence of the appellant’s ‘willing engagement’ and having the ‘upper hand’ in the altercation without determining the issue in accordance with s 15(2) of the Criminal Law Consolidation Act 1935 (SA) ('CLCA'); and
d.      reasoning that the size difference between the appellant and the deceased alone rebutted self-defence.
4.The trial Judge erred in finding that the prosecution had disproved provocation beyond reasonable doubt by (Ground 4):
a.      relying on the appellant’s failure to give evidence of a loss of self-control, or fear and panic;
b.      failing to have regard to the whole of the evidence, including the psychological evidence, the deceased’s propensity for violence, and the appellant’s lack of motive and post offence conduct;
c.      erroneously finding that the appellant had the ‘upper hand’; and
d.      failing to consider how the appellant’s traits and characteristics were relevant in relation to his state of mind.

Held, per the Court, granting permission to amend the Grounds of appeal, and granting permission to appeal on Grounds 1, 2 and 3 but dismissing the appeal:
1.The trial Judge’s reasons were not inadequate.
2.The trial Judge did not fail to bring to account evidence of the deceased’s prior acts of violence and propensity for violence when assessing the deceased’s conduct, and in considering the appellant’s credibility. The trial Judge did not misapply the burden and standard of proof.
3.The trial Judge did not err in her directions on self-defence or in her approach to the issue of self-defence. Her Honour considered the whole of the evidence in finding that self-defence did not arise on the facts of the case, as she found them.
4.It was open to the trial Judge to find that the appellant was not acting for a defensive purpose, and that self-defence did not arise. The trial Judge properly considered the issue of excessive self-defence in accordance with s 15(2) of the CLCA.
5.The trial Judge did not err by finding that provocation did not arise on the facts. The trial Judge did not fail to consider the entirety of the evidence from which provocation might be inferred. The evidence did not raise a reasonable possibility that the alleged provocation caused the appellant to lose self-control (the subjective limb), or that an ordinary person could have been provoked by the alleged provocation to the point of informing an intent to kill or to cause grievous bodily harm and act on that intention (the objective limb). It was open to the trial Judge to find the partial defence of provocation disproved.

Criminal Law Consolidation Act 1935 (SA) ss 14B, 15, 15(1), 15(2), 15(2)(a), 15(2)(b), 15(5); Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA) s 6, referred to.
Lindsay v The Queen (2015) 255 CLR 272; Masciantonio v The Queen (2015) 255 CLR 272; Morgan v Colman (1981) 27 SASR 334; Penhall v The Queen [2020] SASCFC 58; R v Trussell [2021] SASC 106 ; Stingel v The Queen (1990) 171 CLR 312; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, discussed.
Douglass v The Queen (2012) 86 ALJR 1086; DL v The Queen (2018) 266 CLR 1; Fleming v The Queen (1998) 197 CLR 250; Harwood v Police (1998) 71 SASR 300; Herbert v The Queen (1982) 62 FLR 302; JGS v The Queen [2020] SASCFC 48; Papps v Police (2000) 77 SASR 210; Parker v The Queen (1963) 110 CLR 610; Phillips v The Queen [1969] 2 AC 130; R v Cotton [2015] SASCFC 17; R v Helmhout (1980) 1 A Crim R 464 ; R v Keyte (2000) 78 SASR 68; R v McKenzie [2001] SASC 279; R v Miller (2019) 134 SASR 155; R v Power (2003) 141 A Crim R 203; R v Rendell (2018) 131 SASR 201; R v Ricciardi (2017) 128 SASR 571; R v Sabet [2018] SASCFC 18; R v Sexton [2018] SASCFC 28; R v Winner (1995) 79 A Crim R 528; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Van Den Hoek v The Queen (1986) 161 CLR 158, considered.

TRUSSELL v THE KING
[2023] SASCA 5
Court of Appeal – Criminal: Lovell, Bleby and David JJA

THE COURT: Following a trial by judge alone, Mr Bradley Wayne Trussell (‘the appellant’), was convicted of the murder of his de-facto partner, Ms Eden Kennett (‘the deceased’). At arraignment on 3 December 2020, he pleaded guilty to manslaughter by excessive self-defence. That plea was rejected by the Director of Public Prosecutions.
The appellant appeals against his conviction on the following grounds:
1.The trial Judge’s reasons were inadequate in relation to:
a.    the finding that the appellant formed the specific intent to cause grievous bodily harm to the deceased, and in particular:
(i)the reliance on the deceased’s injuries;
(ii)the failure to bring to account the psychological evidence as to the appellant’s mental condition; and
(iii)the appellant’s lack of motive and post-offence conduct;
b.    the exclusion of excessive self-defence; and
c.    the exclusion of provocation.
2.The trial Judge erred in failing to bring to account the deceased’s prior acts of violence and propensity for violence, when:
a.    determining whether the deceased initiated the violent altercation and her subsequent conduct towards the appellant;
b.    assessing the appellant’s credibility in respect of his account of the altercation and its escalation; and
c.    applying the burden and standard of proof to the issues in dispute.
3.The trial Judge erred in her directions as to excessive self-defence by:
a.    failing to bring to account the whole of the evidence on this issue, including (but not limited to) the deceased’s propensity for violence;
b.    making a finding that self-defence did not arise;
c. relying on evidence of the appellant’s ‘willing engagement’ and having the ‘upper hand’ in the altercation without determining the issue in accordance with s 15(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’); and
d.   reasoning that the size difference between the appellant and the deceased alone rebutted self-defence.
4.The trial Judge erred in finding that the prosecution had disproved provocation beyond reasonable doubt, by:
a.    relying on the appellant’s failure to give evidence of a loss of self‑control, or fear and panic;
b.    failing to have regard to the whole of the evidence, including the psychological evidence, the deceased’s propensity for violence, and the appellant’s lack of motive and post offence conduct;
c.    erroneously finding that the appellant had the ‘upper hand’; and
d.    failing to consider how the appellant’s traits and characteristics were relevant in relation to his state of mind.
Permission to appeal was granted with respect to Ground 4. The question of permission to appeal with respect to Grounds 1, 2 and 3 was referred to this Court for consideration.
The evidence at trial
The appellant and the deceased had been in an ‘on and off’ relationship with one another for approximately two years and, at the time of the deceased’s death, were living together at the appellant’s rented premises in Mount Gambier. The trial Judge inferred, by reference to text messages between the appellant and the deceased, that they were living together between 29 August and 13 December 2018. It was the prosecution case that the relationship was fraught with violence largely perpetrated by the appellant.
At trial, the prosecution case was entirely circumstantial. The prosecution alleged that in the lead up to her official time of death on 15 December 2018, being the time the deceased’s aorta was clamped, she was subjected to at least two separate beatings by the appellant: one prior to 5:05am on 12 December 2018, and one between 5:05am on 12 December 2018 and 7:00am on 13 December 2018. The second beating, being the fatal beating, allegedly involved multiple blows to the deceased’s head and body causing extensive injuries and, ultimately, her death.
The prosecution alleged that the fatal beating comprised numerous applications of blunt force trauma to the deceased’s head and body, front and back, and included use of moderate force sufficient to lacerate the liver, and severe force sufficient to fracture several ribs. It was also alleged that the appellant struck the deceased with a weapon, either a pole or rod of some description.
The cause of death was determined to be hypoxic-ischaemic encephalopathy (lack of oxygen and blood flow to the brain) due to prolonged hypotension (low blood pressure) and hypoperfusion (reduced amount of blood flow) resulting from laceration of the deceased’s liver and subsequent internal bleeding within the intra‑abdominal cavity (haemoperitoneum).
The prosecution case was that the appellant deliberately inflicted the abovementioned injuries upon the deceased with the intention, at least, of causing grievous bodily harm or really serious bodily harm resulting in her death.
The defence case primarily relied upon the appellant’s evidence at trial. He admitted that his actions caused the death of the deceased and conceded that they were, for the most part, deliberate and voluntary. He denied intending to kill the deceased or inflicting really serious bodily harm upon her.
The appellant also called evidence from a forensic psychologist, Mr Richard Balfour, that the appellant was suffering from an anti-social personality disorder and post-traumatic stress disorder (‘PTSD’).
It was the defence case that the prosecution had not established beyond reasonable doubt that the appellant had the requisite intent to prove murder, or that his actions causing the deceased’s death were not in excessive self-defence. Defence counsel also submitted that the prosecution had not disproved provocation.
Relationship evidence
The relationship between the appellant and the deceased was characterised by a history of violence. There was evidence from neighbours of hearing arguments between them. There was also evidence from neighbours and other witnesses regarding their observations of injuries to the deceased in the months preceding her death.
In particular, the prosecution adduced evidence of an assault by the appellant on the deceased causing an injury to her foot in June 2018. That evidence included observations of the injury by a friend of the deceased, messages sent by the deceased to her former partner including photographs of an injury to her foot, and an agreed fact as to her attendance at the Queen Elizabeth Hospital on 22 June 2018 for treatment of a wound to her foot.
There was also evidence from police officers that on 19 October 2018 the deceased attended the Mount Gambier Police Station with injuries including a bite mark to the left side of her neck with teeth imprints still visible, swelling above her right eye, bruising up and down both of her legs, and extensive bruising to her arms.
On 13 November 2018, police attended the appellant’s premises where the deceased was observed with bruising to both eyes and a cut to her chin.
On 29 November 2018, police observed the deceased to have bruising to both her arms.
There was evidence of observations of injuries to the appellant by two separate witnesses, namely, Ms Johanne Launder and Brevet Sergeant Ellis. However, those observations were less frequent and his injuries less severe than those observed to the deceased.
Text messages between the appellant and the deceased also revealed volatility and recurring hostility in their relationship. The appellant saved the telephone number of the deceased under the name ‘Slut gutz.’ The messages also contained threats by the appellant to hurt the deceased.
During an examination of the appellant’s premises on 14 December 2018, multiple blood-like stains were found throughout the house. Of the 22 swabs taken from those stains, nine were sent to Forensic Science South Australia for examination. The results demonstrated that the deceased was either the major contributor, or the only contributor, to the DNA profile. This evidence supported the prosecution case that the appellant had been violent towards the deceased on other occasions prior to the fatal beating.
It was the prosecution case that, in the late hours of 6 December 2018, or the very early hours of 7 December 2018, the appellant physically assaulted the deceased and, at the time of the fatal beating, she was still suffering from the effects of that particular assault. That proposition was supported by forensic evidence that the deceased had sustained numerous injuries that were older than 72 hours (by reason of the presence of haemosiderin).
In proof of the earlier assault, the prosecution also relied on text messages between the appellant and his sister, Chloe Trussell, including:
·On 7 December 2018, the appellant sent a text message to his sister stating: ‘Hey sis can you come and get this dumb slut out ov my house iv hurt her anuf an she wont leav I cant do this anymore sis’.
·On 9 December 2018, the appellant sent a text message to his sister asking when she was coming over as he needed Nurofen. Chloe Trussell replied that Monique (Mitchell) was on her way and she would be at the house shortly. The appellant sent another message to his sister asking that she not bring her friend into the house when she came around. Monique Mitchell gave evidence that she drove Chloe Trussell to the appellant’s house to take some Panadol to the deceased. She observed that the deceased had a black eye, but she did not see any marks on the appellant.
·The following morning, on 10 December 2018, the appellant messaged his sister telling her that the deceased was a bit better, and he did not think she needed to go to the doctor. Chloe Trussell asked if the deceased was up and about. The appellant replied that she had thrown up a bit that day but not as much as the day before. Chloe Trussell responded saying ‘glad she’s not throwing up as much tho but need to think of what to tell the hospital’, and a second message saying ‘Coz I sware to god if she or any one says you done it I’ll lose my shit’. The appellant replied saying ‘ill just wait abit first see how she is tomorrow that all im worryed about to but hope shes ok by tomorrow’. Chloe Trussell then asked the appellant ‘How can we get this anger under control?’ The appellant responded that he had medication which had made it better and he could sort it out.
On 12 December 2018, the appellant and deceased attended the premises of their friends, Ms Jacqueline Tickner and Mr Michael Gacek. Ms Tickner observed bruises on the arms and legs of the deceased and dark shadows down the side of her face and under her eye. Ms Tickner and Mr Gacek attended at the appellant’s premises later that evening at which time the appellant told Ms Tickner the deceased was laying down inside because she did not feel well.
Prior violence by the deceased to others
There was also evidence that the deceased had been violent to a former partner, Mr Dereck Crouch, during an incident involving their child after they separated and while their son remained living with his father. On that occasion, Mr Crouch would not let the deceased leave with their child, so an argument ensued during which the deceased punched and hit him in the head, and bit him on the arm. Apart from this incident, their arguments were mostly verbal or minor.
Another former partner, Mr Raymond Watson, said that there was no physical violence between him and the deceased.
Forensic evidence
Dr Karen Heath, a forensic pathologist, attended the intensive care unit at the Royal Adelaide Hospital on 14 December 2018 where the deceased was intubated and ventilated. The purpose of the visit was to conduct an examination of the deceased’s body, and to determine the extent and degree of the deceased’s injuries prior to organ retrieval surgery. Upon examination of the deceased’s body, Dr Heath noted obvious bruising to the face, upper chest, arms and legs, petechial haemorrhages, small, superficial punctate lesions on the central and left side of the deceased’s abdomen, and an apparent superficial wound on her upper left arm.

On 15 December 2018, Dr Heath attended the intensive care unit at the Royal Adelaide Hospital for a second time to observe the surgical removal of the deceased’s organs. On opening the abdomen, Dr Heath observed bruising to the anterior abdominal wall, and approximately 1.4 litres of liquid blood and 850 grams of clotted blood present within the abdominal cavity. Dr Heath noted that the liver was lacerated and a computer tomography scan of the abdomen showed that the laceration was accompanied by haematoma (a collection of blood within the liver) and haemoperitoneum (blood within the abdominal cavity). At the conclusion of surgery, the deceased’s aorta was cross clamped and the deceased was declared dead. On 17 December 2018, Dr Heath conducted a post-mortem autopsy. A pathology report was subsequently prepared by Dr Heath and tendered at trial.
At autopsy, the deceased’s weight was recorded as 53 kilograms and her height was measured as 163 centimetres.
The deceased suffered many injuries, mostly in the form of bruising to her chest, back, arms, legs, and left side of her chin. These injuries were likely caused by multiple applications of blunt force trauma. The traumatic injuries observed in the brain were also consistent with having been inflicted by blunt force trauma to the head. Several of the deceased’s ribs were fractured by severe force, and her liver was lacerated as result of moderate blunt force trauma applied to the deceased’s abdominal region.
Dr Heath determined the cause of death to be hypoxic-ischaemic encephalopathy due to haemoperitoneum as a result of liver laceration. In lay terms, the cause of death was unsurvivable brain damage due to prolonged inadequate blood flow and oxygen delivery to the brain, resulting from a laceration to the liver which caused internal bleeding within the abdominal cavity. Dr Heath explained that haemorrhage from a liver injury may take a period of hours to accumulate to a volume sufficient to cause death.
Dr Heath could not give an exact time as to when the fatal laceration to the liver was inflicted but was of the opinion that it would have occurred within hours of the deceased presenting at the Mount Gambier Hospital at approximately 7:00am on 13 December 2018; ‘not minutes or days.’ On that basis, the prosecution case was that the fatal injury was inflicted sometime between 5:05am on 12 December 2018 and 7:00am on 13 December 2018.
It was Dr Heath’s evidence that the laceration to the liver was the result of blunt force trauma applied to the abdomen in the proximity of the liver, which would have caused the liver tissue to tear and bleed. She could not specify the precise type of blunt force that would have caused the injury but agreed it was possible that the laceration could have initially been smaller before increasing in length as a result of a second application of force to the same region of the body. However, based on the histology of the liver, Dr Heath did not consider there to be any evidence that the laceration was caused by two separate applications of force.
Dr Heath gave evidence that symptoms of a liver laceration may include abdominal pain, weakness, dizziness, and, eventually, a reluctance to move. Other signs include hypotension (low blood pressure), elevated heart rate, and waning levels of consciousness.
At the time the deceased presented at Mount Gambier hospital, she was unresponsive and having an apparent seizure. Her pupils were fixed and dilated; she had gasping respirations. Her Glasgow Coma Score was six.[1] Her blood pressure and body temperature had dropped and her heart rate was elevated. Such symptoms, according to Dr Heath, gave a clear indication that the deceased was ‘very, very unwell’. This was confirmed by the results of multiple blood tests, which indicated the deceased would have been obviously unwell for a period of time prior to presenting at the hospital.
[1] The minimum it can be is three.
Dr Heath took samples from the majority of the deceased’s 43 injuries for histological examination. The examination was conducted to provide an estimate as to when the injuries might have been incurred based on their stage of healing. Dr Heath referred to this as ‘Histological dating’. The presence of haemosiderin macrophages indicates that an injury is more than 72 hours old. An exception would be where there has been a fresh injury atop an old injury, in which case residual iron in the macrophages may still be present from the old injury. By the same token, the absence of haemosiderin indicates that an injury is less than 72 hours old. Accordingly, Dr Heath was able to divide the deceased’s injuries into two categories: those that were inflicted at least 72 hours prior to the deceased’s death; and those that were inflicted within 72 hours of the deceased’s aorta being clamped at 5:05 am on 15 December 2018 (‘the recent injuries’). It was the prosecution case that the injuries with haemosiderin present, being the injuries sustained outside of a 72 hour period, were the result of an earlier assault by the appellant upon the deceased that took place either in the late hours of 6 December 2018 or the very early hours of 7 December 2018.
In addition to the injury that caused the deceased’s death, being the laceration to the liver, Dr Heath identified various other recent injuries including: multiple brain haemorrhages consistent with blunt force trauma to the head; a number of rib fractures caused by severe blunt force trauma to the chest; and a bruise to the back of the deceased’s right thigh having the appearance of ‘tram track’. Dr Heath explained this to mean that the bruise had two roughly parallel lines and an area of pallor, or clearing, in the middle. It was her evidence that this sort of bruising is characteristic of an injury inflicted by a rod or bar like instrument.
Dr Heath gave evidence regarding the possibility that the liver laceration and some of the rib fractures were caused by the same broad-based application of force to the right-hand side of the lower chest and upper abdominal region. She agreed that a single application of severe force to this region of the body could have caused several rib fractures on the right-hand side of the deceased’s body whilst also lacerating the liver; a separate application of severe force to the left side of the deceased’s body would likely have been required to cause the left-hand rib fractures.
Dr Heath gave evidence that the number and distribution of the recent injuries excluded as a reasonable possibility that they were all self-inflicted or all resulted from a fall. In cross examination she agreed it was possible that some of the injuries could have resulted from the deceased being pushed and then subsequently falling onto something. She also agreed that a fall might cause a liver injury and could not say with any certainty how the liver injury was inflicted.
Toxicology
Pharmacologist, Professor Jason White, gave evidence as to the effects of various drugs detected in the appellant’s system. Urine and blood samples were collected from the appellant at around 7.35pm on 13 December 2018. They were analysed by Professor White and a report was subsequently tendered at trial.
An analysis of the urine sample revealed the presence of methylamphetamine, amphetamine, mirtazapine, metoclopramide, olanzapine, nortriptyline, and 11-nor-9-carboxy-∆⁹-tetrahydrocannabindol (‘carboxy-THC’).
An analysis of the blood sample revealed the presence of the following drugs: methylamphetamine at 0.010 mg/L; mirtazapine at 0.038 mg/L; metoclopramide at 0.023 mg/L; and carboxy-THC at 23 ug/L.
In relation to methylamphetamine detected in the appellant’s system, Professor White gave evidence that he could not say when the appellant last consumed that drug. He said that if the appellant was an occasional or regular user, who only ingested relatively small amounts at a time, he may have consumed it within 24 hours of having his blood and urine samples collected; if he was a heavy user, it was likely to have been consumed more than 24 hours prior to this. Professor White gave evidence that, assuming the appellant was a heavy user of methylamphetamine, the direct effects upon him would have been minimal. However, if the appellant had consumed a large concentration of methylamphetamine in the days prior to having his blood sample taken, it is possible he may have been experiencing rebound effects. This occurs when the concentration of methylamphetamine in a person’s system declines to a point where they start to experience fatigue, irritability, and a depressed mood.
Professor White further explained that some of the effects of methylamphetamine may possibly continue for periods long after the main effects of the drug have subsided. These can be broadly classed as persistent effects such as insomnia, paranoia, hallucinations, and delusions. Professor White said that it is possible for a person to experience both persistent and rebound effects concurrently.
Professor White also gave evidence that the presence of the therapeutic drug olanzapine in the appellant’s urine, but not in his blood, indicates that it was last consumed a few days prior to the appellant’s blood being taken. Olanzapine is a prescription anti-psychotic drug used for the treatment of schizophrenia and bipolar disorder; it has the potential to negate some of the psychotic effects of methylamphetamine.
A toxicology report was also prepared in relation to the deceased. The following drugs were detected in the deceased’s ante-mortem blood: gamma‑hydroxybutyrate (‘GHB’); mirtazapine (consistent with non-toxic concentrations); metoclopramide (consistent with non-toxic concentrations); carboxy-THC; and ibuprofen. There was no alcohol detected in the deceased’s ante-mortem blood.
GHB, also known as fantasy or liquid ecstasy, is often used recreationally for its euphoric and sedative properties. The effects of GHB taken at a low dose include disinhibition and increased activity, and at a high dose include sedation and a lack of coordination. Professor White considered the level of GHB in the deceased’s system was not particularly high and was unlikely to have had a significant effect on her.
Professor White gave evidence that GHB is readily absorbed after oral administration and is rapidly metabolised. Thus, it is usually only detectable in a person’s blood sample for up to six hours after consumption; it is not detectable after 12 hours. However, given that GHB is metabolised quickly, the concentration could have been two or three times higher if the sample was taken even one hour earlier. Professor White said that if the drug was consumed three hours earlier, it was reasonable to conclude she would have been experiencing its effects.
The appellant’s police interview
Police interviewed the appellant on 13 December 2018. During the interview, he told police that he was in a relationship with the deceased for two and a half years, and he described them as having ‘normal … relationship problems.’
As to the evening of 12 December 2018, the appellant said he went to bed at about 9.00pm and woke up at about 4.00am. The deceased was returning to bed after having had a bath. They began arguing in the lounge room where they had slept the previous night. He described the morning as ‘pretty much the last straw’. They argued from 4.00am to 6.00am. He said the argument started over the topic of Facebook and ‘pathetic stuff’ including mobile phones and talking to another male.
The appellant initially denied assaulting the deceased and said that he tried to walk away but she would not let him leave. He described a lot of pushing and shoving and said he asked her to leave. He said, ‘she done, pretty much the rest herself.’ He described the deceased headbutting the doors, walls, and floors of the house, grabbing knives and putting them to her neck, pulling her hair out, and biting him in an attempt to incite a reaction.
The appellant told police that he tried to do everything he could to stop her from hurting herself. He said he was trying to walk away and calm himself down because he has bi-polar and schizophrenia. He said that he likes to ‘go and chill out for five minutes, come back and then talk about things’ but she just kept ‘being in [his] face’ so he pushed her, and she fell to the ground. He said this happened in the kitchen where it was dark. He did not know if she had bumped her head. He said that he went back into the lounge room and had a cigarette and then when he looked over he saw that she was on the floor ‘fitting’. He picked her up and put her on the bed again to make sure that she was alright. He gave her a cup of water and then put her in the shower.
The appellant told police that he rang his friend, Michael, who drove them to his sister’s house because he wanted her help. When he got to his sister’s house, they took the deceased straight to hospital.
The appellant spoke of ‘another little argument’ that occurred the previous night during which the deceased stabbed herself in the head with a pair of scissors. He also described another occasion that he said had happened a while ago where she held a knife against her own neck. He explained that he managed to grab the knife from her, they pushed each other, she slapped him, and he went into the lounge room. She then went to get another knife and the appellant kicked her in the leg to stop her. This caused her to fall to the ground.
During the police interview, the appellant denied assaulting the deceased on the morning before her death. He said he might have pushed her and grabbed her around the neck but ‘that was it.’ He denied hitting her or ‘anything like that.’
The appellant’s injuries
The appellant was medically examined at Mount Gambier Hospital on 13 December 2018, in the presence of police. His injuries were photographed by police. The appellant was also examined at the Mount Gambier police station at about 9.30pm that evening. Further photographs were taken during that examination. It was noted that the appellant had an injury underneath the area of his left nipple and that he claimed that it was ‘a bite mark, older injury’. When asked by police if there were any marks or injuries about which he was concerned, the appellant did not refer to any other injury, nor were any other injuries apparent.
The defence case
As noted above, the appellant gave evidence in his own defence and called evidence from a forensic psychologist, Mr Richard Balfour.
The appellant’s evidence
In evidence, the appellant said that, as a child, both he and his mother were subject to violent abuse at the hands of his father and on more than one occasion he had witnessed his father being violent towards his mother.
The appellant described suffering from mental health conditions and taking medication, namely mirtazapine, for anxiety and depression, and zyprexa for bipolar disorder and minor schizophrenia. He said that as a result of his diagnosed schizophrenia he would ‘misinterpret things that were happening sometimes’ and that he would become paranoid about being hurt.
The appellant gave evidence that his arguments with the deceased became more serious towards the end of 2017 and, at times, were physical. He admitted sending the deceased ‘nasty’ text messages in the past, which he claimed was an attempt to prevent their relationship from ‘starting again’. However, he denied using similar language during their verbal arguments.
The appellant said that on most occasions it was the deceased who would start verbal arguments and instigate physical violence, but he admitted that there were times when he would initiate the violence. He also admitted to occasionally punching, tripping, and slapping the deceased.
The appellant agreed that he was physically stronger than the deceased. When asked why he would resort to violence, he said that he felt threatened and was attempting to defend himself. The appellant denied hitting the deceased in other circumstances; he would only do so in attempting to stop her from attacking him. The appellant denied ever hitting the deceased with a weapon or object of any sort. He also denied that he ever intended to hurt the deceased.
The appellant gave evidence that typically the deceased would start a physical altercation by pushing and scratching him and then progress to kicking him in the testicular region. He described an incident about six months prior to her death where he was sitting on the couch and the deceased jumped on him and pushed his head into a window frame causing his head to split open slightly. He explained that this argument concerned a dispute about ‘[g]eneral stuff like drugs, money, deleting pictures out of phones and stuff like that.’
In relation to the evening of 6 December 2018, the appellant admitted that he argued with the deceased and that there was a physical altercation but denied that he was the aggressor. He agreed the deceased was ‘sick’ for a number of days after this altercation and that he was worried about her but denied knowing what caused her reaction. He said he told the deceased she should go to hospital, but he did not take her there himself because he did not have a driver’s licence at the time. He agreed he could have called her a taxi.
The appellant agreed that on 7 December 2018, he sent a text message to his sister, which said ‘iv hurt her anuf and she wont leav.’ He said that his reference to having hurt the deceased meant he had hurt her enough mentally and physically.
The appellant gave evidence regarding his drug use. He admitted to using methylamphetamine (which he referred to as ‘ice’) 24 hours before the deceased was admitted to hospital on 13 December 2018. He said that the deceased was also using methylamphetamine in the week leading up to her death. The appellant also admitted to smoking cannabis on the morning of the 13 December 2018, both before and after taking the deceased to hospital.
As to the morning of 13 December 2018, the appellant said that he woke between approximately 4:00am and 5:00am to find the deceased walking out of the bathroom holding his phone. She was unclothed. He explained that the previous night he and the deceased had slept on a mattress in the lounge room. He recalled asking the deceased what she was doing with the phone and when she would not give him a definitive answer, he assumed that she was hiding something. He agreed that this made him angry which caused him to start yelling at her, but he denied starting the argument. He said the deceased became upset with him because he ‘kept on accusing her of stuff that she was declining that she was doing.’
The appellant said they continued to argue for a while before the deceased started hitting and scratching him when he asked her to leave. He said there was a lot of ‘pushing, punching and fighting and stuff like that, biting, scratching’ but that it was the deceased who pushed him first. He agreed that he retaliated by pushing her back. He admitted to hitting and physically handling the deceased but denied that he attacked her or intended to hurt her.
The appellant said that he did not tell police about injuries he claimed to have sustained from attacks by the deceased because he did not want to get her into trouble.
The appellant suggested some of the injuries sustained by the deceased were self-inflicted. He described the deceased falling to the ground of the kitchen in a tantrum, hitting herself in the head, and biting herself on her left arm. At this point, the appellant said he tried to leave the kitchen, but he was prevented from doing so by the deceased hitting him and telling him not to leave. In response, the appellant said he turned around and pushed her so that she was facing away from him and then shoved her firmly into the fridge causing her to fall to the ground. He said he did this to get away from her rather than hurt her. He denied that he intended to push her into the fridge; he said he was only trying to push her away from himself.

The appellant said that after pushing the deceased into the fridge, he walked into the lounge room, at which point he heard the deceased having a ‘seizure’ on the kitchen floor. He gave evidence that he thought she was pretending as she had done this before to stop arguments. It was only after smoking a cigarette (and some cannabis) and returning to the kitchen to find the deceased still convulsing on the floor, that the appellant began to think the situation was ‘pretty serious.’ At this point, the appellant picked the deceased up off the floor, carried her into the lounge room and placed her onto the mattress. She remained unresponsive so the appellant picked her up again and took her to the shower and began to run cold water over her.
The appellant gave evidence of dropping her on two occasions as he carried her to the bathroom: once as he entered the bathroom; and a second time in the bathroom when attempting to place her on the shower floor. He described the deceased’s leg falling over the bathtub as she fell on her back. Once she stopped convulsing, the appellant decided to take her to the hospital (via his sister’s house) as she was still unresponsive. The appellant admitted he was concerned for her health and safety at this point but maintained he did not know the seriousness of her medical situation.
The appellant agreed that his actions caused the deceased’s death but denied that it was his intention to cause her really serious bodily harm. He denied using a stick or pole (or any item of a similar nature) to hit the deceased. He denied that some of the blows he inflicted on the deceased were severe enough to fracture her ribs or lacerate her liver.
Lies
In evidence, the appellant admitted to giving a dishonest account in his police interview as to the severity of physical violence that had occurred between himself and the deceased on the morning of 13 December 2018. He claimed this was because of his fear of being incarcerated, and as a result of being under the influence of drugs at the time. The appellant admitted that he lied when he said that Michael drove him and the deceased to his sister’s house, and he did so because he did not have a driver’s licence at the time. He also admitted that during the police interview he did not say the deceased had attacked him. He claimed that his failure to do so was because he did not wish to get her into trouble. He also agreed that he did not tell police that he pushed the deceased into the fridge or that he dropped her while carrying her to the bathroom. He provided no explanation for those latter omissions.
The evidence of Mr Balfour
Mr Balfour, a forensic psychologist, assessed the appellant during the course of the trial after an adjournment was granted for that to occur. In evidence, Mr Balfour said that he diagnosed the appellant with an anti-social personality disorder, and post-traumatic stress disorder (PTSD) precipitated by severe domestic violence and abuse experienced as a child. Mr Balfour explained that the symptoms of these disorders include hypervigilance, hyperarousal, and a tendency to become physically violent in moments of conflict. He added that the appellant has a lower threshold to become overwhelmed by his feelings, which can lead to anger and behavioural aggression. That is, in layman’s terms, he has a ‘short fuse.’
Mr Balfour agreed that the appellant does not have a mental incompetence defence and his diagnosis of the appellant does not mean that he would not appreciate that he was acting violently in a particular situation. Mr Balfour agreed that the appellant was capable of deliberate and calculated violence toward others.
Issues at trial
There was no dispute that the relationship between the appellant and the deceased was volatile and, on occasion, involved physical violence. However, the nature and extent of past physical violence, and by whom it had been instigated, was the subject of contest between the parties.
The forensic cause of the deceased’s death was not in dispute. It was also common ground that on the morning of 13 December 2018, the appellant and the deceased were engaged in a verbal and physical altercation during which she sustained a liver injury resulting in her death.
On the prosecution case, the appellant had inflicted a sustained and violent beating on the deceased during which he inflicted the fatal liver injury, as well as other blows resulting in serious injuries to the deceased including bruising, subdural and subarachnoid brain haemorrhages, and rib fractures.
The appellant denied that he inflicted such a violent beating. Whilst admitting that there was a verbal and physical altercation that morning during which he pushed the deceased causing her to fall into the fridge and dropped her on two occasions whilst carrying her to the bathroom, he denied having inflicted the majority of her injuries.
The appellant also denied instigating the physical aspect of their confrontation. He alleged that the deceased was the aggressor, and claimed that he was acting in self-defence in inflicting any injury to her (albeit, whilst conceding that his actions were not reasonably proportionate to the threat he faced). The circumstances in which the deceased’s injuries were sustained, and the nature and extent of his physical violence to the deceased that morning, was a factual matter in dispute at trial.
Thus, the following matters were in issue:
·Whether the prosecution had established that the appellant had inflicted the fatal liver injury and the appellant’s specific intention to cause really serious bodily harm;
·Whether the prosecution had disproved that the appellant was acting in excessive self -defence. That is, whether the prosecution had proved that the appellant did not believe that it was necessary and reasonable to inflict the injuries to the deceased to defend himself. As outlined earlier, the appellant accepted that his actions were not reasonably proportionate to the threat that he believed to exist (hence, his guilty plea to manslaughter by excessive self-defence); and
·Whether the ‘partial defence’ of provocation arose on the evidence and, if so, whether the prosecution had negatived provocation beyond reasonable doubt.
The trial Judge’s reasons for verdict
In her reasons for verdict, the trial Judge outlined the evidence adduced at trial, the elements of the offence, the parties’ respective cases, and counsels’ submissions in similar terms as recounted above.
In relation to circumstantial evidence, her Honour noted that an inference of guilt must be the only rational conclusion which could be drawn from the established facts. To that end, her Honour gave a direction that the appellant’s guilt was not established unless the evidence excluded, beyond reasonable doubt, any plausible hypothesis consistent with the appellant’s innocence; and it was not for the appellant to prove his innocence or to establish that an inference other than guilt could be reasonably drawn from the evidence.
Her Honour noted that the prosecution did not rely upon lies told by the appellant in his police interview as evidence of a consciousness of guilt. Rather, they were only relevant to an assessment of his credibility.
The trial Judge set out the evidence adduced by the prosecution including: Dr Heath’s evidence as to the autopsy findings; the crime scene investigation and DNA comparisons extracted from blood stains; Professor White’s evidence as to the toxicology results of the appellant and deceased; and evidence (as to the volatility and violent nature of their relationship) from acquaintances, friends, and neighbours (including exchanges via text message).
The trial Judge provided a detailed summary of the defence case. As to the appellant’s evidence, the trial Judge accepted that his childhood was dysfunctional and ‘punctuated by violence perpetrated by his father against him and his mother.’ More broadly, however, her Honour found the appellant’s evidence unconvincing and lacking in specificity. It was accepted that the verbal altercation preceding the deceased’s admission to hospital started (as he described) because he was angry that she was awake and on the phone. From that point, her Honour found that the appellant:[2]
downplayed the level of violence he engaged in and tailored his evidence to bolster his version of events that Ms Kennett started the physical altercation in the early hours of 13 December 2018, that she self-harmed, accidentally fell and he acted in self-defence.
[2] R v Trussell [2021] SASC 106 at [315] per Bampton J.
Her Honour rejected the appellant’s evidence regarding the level of violence he inflicted upon the deceased in the past and as to what occurred on the morning of her death.
The trial Judge reminded herself that even if she did not accept the appellant’s evidence regarding the altercation in the early hours of 13 December 2018, a verdict of not guilty must follow if there was a reasonable possibility that his evidence was true. Her Honour directed herself that if she rejected the appellant’s evidence, she must put it to one side and consider whether the prosecution has proved the offence beyond reasonable doubt.
In relation to the psychological evidence of Mr Balfour, the trial Judge accepted his evidence but found it to be of ‘limited assistance’ in providing an explanation for the appellant’s physically violent behaviour toward the deceased. Her Honour said that the evidence ‘may explain why Mr Trussell behaved in the way he did, however, it does not provide Mr Trussell with a legal defence to the charge of murder.’
The trial Judge made the following factual findings as to the circumstances established by the evidence:
·The appellant and the deceased were living together as at 13 December 2018.
·Their relationship was dysfunctional, unstable, and domestically violent.
·Witnesses variously observed bruises and/or black eyes on the deceased in mid-2018, October and November 2018, and during the week before 13 December 2018.
·A physical altercation occurred either in the late hours of 6 December 2018 or very early hours of 7 December 2018.
·The deceased was unwell on 9 December and 10 December 2018 and feeling unwell when the Tickner/Gacek household came to visit on 12 December 2018.
·The appellant was angry about the deceased being out of bed and on his phone when he woke on 13 December 2018.
·The appellant got out of bed and confronted the deceased in the kitchen. He was angry because she was not telling him what she was doing. A verbal argument took place. He wanted her to leave, but she did not want to go. A physical altercation ensued.
·The appellant engaged in the fatal beating, inflicting blows on the deceased causing severe and serious injuries.
·The fatal beating consisted of multiple applications of force to the head and body, front and back, and included the use of moderate force sufficient to lacerate the liver and severe force sufficient to fracture ribs.
·A rod-like instrument was used to inflict at least the tram-track injury, being injury 42.
·The laceration to the deceased’s liver was caused during the fatal beating by the appellant.
·The laceration to the liver occurred within hours prior to the deceased presenting at the Mount Gambier hospital.
·The pattern of distribution and number of injuries, as described by Dr Heath in her evidence, excludes as a reasonable possibility the injuries were self-inflicted or resulted from an accidental fall.
·The pattern of distribution and number of injuries excludes as a reasonable possibility the injuries being consistent with anything other than a severe beating.
·At the time the fatal beating was inflicted, the deceased had obvious bruising and black eyes sustained in an earlier physical altercation(s).
·Ms Patricia Considine, a neighbour of the appellant, described hearing the appellant yelling from his premises between 5:30am and 6:00am on 13 December 2018. She did not hear the deceased.
·The appellant drove the deceased to his sister’s house before taking her to hospital.
·The deceased appeared unconscious and ‘extremely unwell’ in the footage taken at the time of her presentation at the Mount Gambier hospital.
·No recent or defensive injuries were identified on the appellant’s body following his arrest.
·The cause of the deceased’s death was hypoxic-ischaemic encephalopathy due to prolonged hypotension and hypoperfusion of the brain resulting from laceration of the liver and haemoperitoneum.
·There would not have been any strong direct drug effects occurring and affecting the appellant in the late hours of 12 December 2018, or the early hours of 13 December 2018.
·There is no reasonable possibility that in subjecting the deceased to a severe beating during which he caused the liver injury the appellant did not intend to cause really serious bodily harm.
The appellant’s specific intent
As to proof of the appellant’s specific intention, the trial Judge found beyond reasonable doubt that at the time he inflicted the fatal liver injury, he intended, at the very least, to inflict really serious bodily harm.
In particular, the trial Judge found (consistent with the appellant’s evidence): on the morning of 13 December 2018, the appellant was angry about the deceased being out of bed and on his phone; he got out of bed and confronted the deceased in the kitchen; a verbal argument took place; he wanted her to leave, but she said she did not want to go; and a physical altercation took place. However, the trial Judge rejected the appellant’s evidence as to his physical actions on that morning. Her Honour found that the appellant inflicted multiple blows on the deceased causing the recent injuries. The trial Judge found that the pattern of distribution and number of injuries excludes as a reasonable possibility that: (a) the injuries were self‑inflicted or resulted from an accidental fall; and (b) the injuries were consistent with anything other than a severe beating.
The trial Judge had regard to the number of injuries sustained by the deceased within 26 hours prior to her admission to hospital including: the application of moderate force to lacerate her liver; the application of severe force to fracture the ribs; and the use of a rod like implement to cause at least one of the deceased’s injuries. With that in mind, her Honour found that the appellant inflicted violent blunt force trauma to the deceased.
The trial Judge then turned her mind to whether the evidence raised any doubt as to whether an inference should be drawn that the appellant intended to cause really serious bodily harm. Her Honour found that the deceased sustained too many injuries for there to be a reasonable possibility that the appellant did not appreciate that his actions ‘could’ cause really serious bodily harm. Her Honour went on to say:
There is no reasonable possibility that in subjecting Ms Kennett to a severe beating during which he caused the liver injury he did not intend to cause really serious bodily harm.
Her Honour outlined her findings as to the factual circumstances established by the evidence (as set out above).
Her Honour then concluded beyond reasonable doubt that at the time the appellant inflicted the fatal liver injury, he intended, at the very least, to inflict really serious bodily harm.
Manslaughter by excessive self-defence
The appellant’s guilty plea to manslaughter by excessive self-defence was on the basis that his actions in pushing the deceased into the fridge caused her death. The appellant’s case was that he genuinely believed his conduct was necessary and reasonable for a defensive purpose. However, it was conceded by defence counsel on his behalf (and by reason of his guilty plea to manslaughter) that his conduct was not, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat.
As outlined above, whilst her Honour accepted the evidence of the appellant and others as to the violent nature of the relationship between himself and the deceased, she rejected the appellant’s evidence regarding his actions, and the severity of violence he had engaged in towards the deceased in the past and on the morning of 13 December 2018. In those circumstances, and by reference to her factual findings summarised above, the trial Judge considered that excessive self‑defence did not arise on the facts as she found them. However, her Honour proceeded to consider the issue assuming, contrary to her findings, that it did arise on the evidence.
In considering self-defence, her Honour referred to Mr Balfour’s opinion that the appellant ‘would misperceive threat situations and potentially overestimate the level of risk’, and if required ‘he could become physically violent to deal with the conflict or threat’. In that context, the trial Judge also considered Mr Balfour’s evidence that the appellant’s psychological disorders:
… exacerbate his emotional control, so there’s two parts. He can think that he doesn’t like someone, and wants to harm them, for whatever motive, that’s psychological motive but he has the added burden that he gets angry very quickly and into that reactive anger, the blind rage.
The trial Judge referred to the appellant’s contention that:
… the evidence of Mr Balfour regarding his psychological background and the consequences of that background is directly relevant to the question of whether he genuinely believed that his conduct during the final push was necessary and reasonable in defending himself.
The trial Judge found that the appellant’s anger about the deceased being awake, on his phone and denying she was doing anything wrong caused him to ‘spontaneously decide to act out violently in that situation.’
Her Honour referred to the appellant’s version of events and found that at the time he inflicted the fatal injury, there was no threat to him, and nothing to defend himself against.
Her Honour rejected defence counsel’s submission that the deceased was the instigator of the physical altercation and made a finding that ‘Mr Trussell was the original aggressor; Ms Kennett may have responded to his anger and verbal attack physically, however, he willingly engaged and held the upper hand.’
The trial Judge reasoned that the appellant had sustained no injury which might support an inference that he had been under attack. Her Honour referred to photographs of the appellant depicting a strong, fit-looking man and, noting the discrepancy in physical stature between the deceased and the appellant, accepted the prosecution submission that size difference alone rebutted any suggestion that the appellant genuinely believed his actions were necessary for a defensive purpose. Accordingly, her Honour found that the prosecution had proved beyond reasonable doubt that the appellant did not genuinely believe his conduct was necessary and reasonable to defend himself.
Manslaughter by provocation
After finding that the appellant had formed the specific intention to cause really serious bodily harm and finding that the prosecution had negatived excessive self-defence, the trial Judge turned to consider the partial defence of provocation. Her Honour noted defence counsel’s contention that the provocative conduct is to be found in the appellant’s evidence that he was attacked by the deceased in a relentless manner such that she would not let him leave the kitchen.
Having rejected the appellant’s evidence regarding the level of violence engaged in by the deceased, the trial Judge found that the partial defence of provocation did not arise. However, her Honour proceeded to consider the issue assuming, contrary to her findings, that the deceased’s conduct was provocative. In doing so, her Honour considered both the subjective and objective limbs of the partial defence of provocation.

The trial Judge made factual findings that, on 13 December 2018, the appellant inflicted multiple blows upon the deceased causing the recent injuries. Her Honour excluded as a reasonable possibility that the injuries were self‑inflicted or resulted from an accidental fall, finding that the pattern of distribution and number of the injuries excludes as a reasonable possibility that those injuries were consistent with anything other than a severe beating. Her Honour concluded that the deceased was subject to violent blunt force trauma inflicted by the appellant. In relation to proof of his specific intent to cause really serious bodily harm, her Honour said:
I have considered whether the evidence raises a doubt in my mind whether the inference that Mr Trussell intended to cause really serious bodily harm should be drawn. Ms Kennett sustained too many injuries for there to be any reasonable possibility that Mr Trussell did not appreciate that his actions could cause really serious bodily harm. There is no reasonable possibility that in subjecting Ms Kennett to a severe beating during which he caused the liver injury he did not intend to cause really serious bodily harm.
(emphasis added)
The respondent acknowledges that, given this is not a case presented as reckless murder, the trial Judge incorrectly stated the requisite mental state when she said the deceased sustained too many injuries for there to be any reasonable possibility that the appellant did not appreciate that his actions ‘could’ cause really serious bodily harm. That could only be a step toward a finding of guilt as it would not in itself constitute a sufficient finding of proof of the element of specific intent. However, we are satisfied that error is ameliorated by the trial Judge’s immediate subsequent finding regarding satisfaction beyond reasonable doubt of the appellant’s specific intent (emphasised in italics above).
We turn to the particulars of the complaint that the trial Judge’s reasons were inadequate.
In relation to reliance placed by the trial Judge on the injuries of the deceased, we are satisfied that the reasons are not inadequate as to the basis upon which she relied on the extensive injuries sustained by the deceased from which inferences were drawn to find proved the appellant’s specific intent to cause really serious bodily harm. The trial Judge noted the multiple applications of force required to cause the injuries sustained by the deceased within 26 hours of her recorded time of death; that some of those injuries, namely the fractures to several of her ribs, required the application of severe force; and that some of those injuries were inflicted by a weapon of some sort. The trial Judge also referred to the absence of defensive wounds sustained by the appellant despite claims of self-defence, the marked disparity in apparent past aggression between the appellant and the deceased, and the differences in their physicality and size.
In circumstances where there are multiple applications of force an accused will only be guilty of murder if the requisite intent is contemporaneous with the fatal blow. The trial Judge made a finding that the deceased was subjected to a severe beating at the hands of the appellant, and that it was during this beating that he inflicted multiple blows upon the deceased, including the blow resulting in the fatal liver injury. It was on that basis, and after assessing the evidence in its totality, that the trial Judge concluded that she was satisfied ‘that Mr Trussell formed the specific intention whilst he was beating Ms Kennett, which intention did not change, to cause at least really serious bodily harm.’
In relation to the contention that the trial Judge failed to ‘bring to account’ the evidence of Mr Balfour as to the appellant’s psychological condition and his potential for a ‘blind rage’ when finding proved that the appellant had the requisite specific intention, it is necessary to consider the reasons for verdict as a whole. The trial Judge in her reasons for verdict:
·summarised Mr Balfour’s evidence and accepted his evidence in so far as it related to the appellant;
·extracted Mr Balfour’s evidence on the appellant’s potential for suffering from ‘blind rage’ at various parts of her reasons;
·considered the evidence of Mr Balfour as to the appellant’s psychological background in the context of the submission that, when assessing whether Mr Trussell genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose, the Court must take into account his state of mind, and that the consequences of the appellant’s psychological background are directly relevant to this question; and
·referred to, and considered, the evidence of Mr Balfour in finding the prosecution had disproved self-defence.
The effect of the evidence of Mr Balfour was that the appellant had a dysfunctional childhood during which he ‘lived in fear that his father would seriously injure or kill him.’ Mr Balfour consider that the appellant had suffered from severe domestic violence as a child. As a result, Mr Balfour diagnosed the appellant with an anti-social personality disorder and PTSD. The symptoms of an anti-social personality disorder are poor impulse control, rule breaking, violence, and treating others poorly. Hypervigilance and hyperarousal are part of the diagnostic criteria for PTSD.
In terms of how the appellant would react in a conflict situation, Mr Balfour said that he would misperceive threat situations and potentially overestimate the level of risk, and, if required, he could become physically violent to deal with the conflict or threat. He said that the appellant will become hypervigilant and overestimate the level of risk to himself from a perceived threat. He is also likely to suffer from hyperarousal so that he is ‘revved up’ and has a lower threshold to become overwhelmed by his feelings, which can include anger and lead to behavioural aggression. Mr Balfour explained that a hypervigilant person will perceive a greater threat than a person who does not have a personality disorder or PTSD and will be prone to over-evaluate the level of risk of threat. A person suffering from hyperarousal is likely to overreact to the threat as they perceive it.
However, Mr Balfour conceded that the appellant’s psychological conditions did not mean that he would not appreciate that he was acting violently in a particular situation, and that he was capable of ‘deliberate and calculated violence.’ He said that the appellant might be angered by a situation that someone without his conditions would not be angered by but agreed with the proposition that ‘[t]hat anger can then manifest itself in Mr Trussell forming an intention to be violent at that point in time’. Mr Balfour added that ‘the time frame to form intent can be pretty short, instantaneous.’
A specific intention to cause really serious bodily harm can of course be formed spontaneously. That is what the trial Judge found to have occurred in the present matter. Her Honour said:
On my assessment, Mr Trussell’s anger about Ms Kennett being up, on his phone and denying she was doing anything wrong caused him to “spontaneously decide to act out violently in the situation”.
In those circumstances, the evidence of Mr Balfour properly considered did little to undermine the prosecution case in proof of specific intent. Indeed, it strengthened the case by way of an explanation for the appellant’s anger and conduct in inflicting a severe beating on the deceased. Given its limited significance on this issue, the trial Judge’s reasons were not inadequate.
The appellant also submitted that the trial Judge gave inadequate reasons by failing to refer to the absence of motive to cause really serious bodily harm, and his post-offence conduct in taking the deceased to the hospital. It was submitted that those matters militated against a finding that he had formed the requisite specific intention. There was a history of domestic violence and abuse perpetrated by the appellant on the deceased, and the trial Judge made express findings on that topic, which were set out earlier. An absence of motive was of far less significance than it would have been if the relationship had not been characterised by such violence or in an otherwise inexplicable situation of spontaneous violence.
Further, given the relatively spontaneous nature of the beating during which the fatal liver injury was inflicted, on the facts as found by the trial Judge, the appellant’s post-offence conduct in arranging for the deceased to be taken to hospital, and his expressions of concern and love for his partner also carried little weight. His conduct in doing so was calculated to avoid detection. As her Honour noted, he unsuccessfully attempted to wake her with cold water, dressed her while she was still unconscious, and travelled to his sister’s house for her opinion as to the seriousness of her condition, effectively, bypassing the hospital. It is also to be noted that defence counsel at trial did not refer to the appellant’s post offence conduct in submitting that the prosecution had not proved the appellant’s specific intention. Whilst not determinative, the conduct of the defence counsel reflected the lack of significance of the evidence. While the trial Judge did not expressly refer to the appellant’s absence of motive or post offence conduct, in finding proved his specific intent, we are satisfied that her reasons were not inadequate given the limited weight that could be afforded to that evidence with respect to that issue.
The appellant also contends that in determining whether the prosecution had proved the appellant’s specific intent to cause really serious bodily harm, she was required to have regard to the pharmacological evidence as to the rebound and persistent effects of methylamphetamine on the appellant, notwithstanding his evidence that he had last consumed the drug several days prior to the morning of 13 December 2018. As set out above, the trial Judge found that the appellant would not have been experiencing any strong direct effects of the drug in the late hours of 12 December 2018 or early hours of 13 December 2018. The trial Judge in finding proved the appellant’s specific intent did not expressly have regard to the possible rebound or persistent indirect effects of the drug. However, she had earlier summarised the evidence of Professor White and referred to the possibility for a heavy user of methylamphetamine who has ceased using the drug to experience persistent effects of the drug including paranoia and rebound effects including fatigue, irritability, and depressed mood. That being so, we are satisfied the trial Judge did have regard to the whole of the pharmacological evidence in finding the appellant’s specific intent proved, and her Honours reasons were not inadequate in that regard.
Inadequate reasons in relation to exclusion of excessive self-defence and provocation
The appellant complains that the trial Judge’s reasons were inadequate in relation to her finding that the prosecution had disproved excessive self-defence and the partial defence of provocation. For the reasons already outlined, those findings was open to the trial Judge.
In relation to disproving self-defence, we are satisfied the reasons were not inadequate given the trial Judge:
·expressly referred to the appellant’s submissions on excessive self‑defence;
·undertook a detailed analysis of the evidence and made factual findings as to the circumstances in which the appellant inflicted the fatal injury as we have already outlined above;
·explained the basis for finding that the appellant’s evidence was tailored to bolster his version of events;
·outlined the law on self-defence in accordance with s 15 of the CLCA before concluding that excessive self-defence does not arise (on the facts as found); and
·considered the psychological evidence assuming self-defence does arise (contrary to her findings) before concluding that on the appellant’s own account (which had been rejected), there was no threat to the appellant at the time he inflicted the fatal liver injury and found proved beyond reasonable doubt that the appellant did not genuinely believe his conduct was necessary and reasonable to defend himself.
In relation to provocation, we are also satisfied the trial Judge’s reasons were not inadequate given the trial Judge:
·engaged in a detailed analysis and made the factual findings as outlined above;
·referred to the submissions of defence counsel on provocation and noted that on the defence case, the provocative conduct was arguably found in the appellant’s evidence that the deceased attacked him in a relentless manner and that she would not let him retreat from the kitchen;
·explained her conclusion that, having rejected the appellant’s evidence regarding the level of violence both he and the deceased engaged in, provocation did not arise; and
·turned to consider the issue assuming, contrary to her findings, that the deceased’s evidence was provocative, and in assessing the gravity of the provocative conduct had regard to the evidence of Mr Balfour and the appellant’s evidence as to his psychological conditions.
We are satisfied the trial Judge’s reasons as to the appellant’s specific intention to cause grievous bodily harm and in concluding that the prosecution had disproved self-defence and provocation were not inadequate.
We would dismiss this ground of appeal.
Ground 2 – Failure to bring to account evidence of the deceased’s prior acts of violence and violent propensity in her relationship with the appellant and others
The appellant contends that the trial Judge erred in failing to bring to account evidence of the deceased’s prior acts of violence and propensity for violence towards the appellant and former partners when: (a) deciding whether the deceased initiated the violent altercation and her conduct during the altercation; (b) assessing the appellant’s credibility in respect of his account of the altercation and its escalation; and (c) applying the burden and standard of proof to the issues.
None of the appellant’s complaints can be sustained upon an examination of the trial Judge’s reasons for verdict.
In her reasons, the trial Judge accepted evidence relating to the deceased having been physically violent in the past and, partly on that basis, did not exclude the possibility that both the appellant and the deceased had in the past engaged in altercations which involved mutual physical violence.
Her Honour referred to defence counsel’s submission that having regard to the appellant’s evidence that the deceased instigated the physical conflict and the evidence of the civilian witnesses (as to her prior violence to his and others), it was not possible to exclude the hypothesis that the physical fight was commenced by the deceased.
While her Honour found that the deceased may have physically responded to the appellant’s ‘anger and verbal attack’, she considered that there was a marked disparity in past aggression between the deceased and the appellant and, their physicality. The appellant’s own evidence supported that conclusion; he agreed that during their past altercations he would get the better of the deceased, and he accepted that he was physically stronger than the deceased. He also admitted that he had exercised restraint on the occasions where he had punched the victim in the face because she was female and, therefore, he did not use all his strength.
The text message exchanges also revealed the appellant had been more aggressive in his verbal abuse toward the deceased, and that he engaged in physical threats to her which were not reciprocated.
The trial Judge expressly rejected the appellant’s account of his level of violence on the morning of 13 December 2018 and set out her reasons for doing so.
It can be readily seen that the trial Judge did bring to account the evidence of the deceased’s prior acts of violence in considering the circumstances in which the appellant inflicted the fatal liver injury, and in rejecting the appellant’s version of events. Notwithstanding the appellant’s evidence, her Honour found that he initiated the violent altercation. On the whole of the evidence, including the disparity between the physicality of the appellant and the deceased, and the difference in their levels of previous ‘mutual physical violence’, that finding was open to the trial Judge, and adequately explained in her reasons.
We would also reject the appellant’s submission that the trial judge misapplied the burden and standard of proof for the reasons outlined above.
We would dismiss this ground of appeal.
Conclusion
1. Permission to amend the ground of appeal is granted.
2. Permission to appeal Grounds 1, 2 and 3 is granted but the appeal is dismissed.

[2023] SASCA 5

9 February 2023

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Intention