Yacoub v R

[2008] NSWCCA 164

New South Wales
Court of Criminal Appeal

CITATION:	Yacoub v R [2008] NSWCCA 164
HEARING DATE(S):	6 June 2008
JUDGMENT DATE:	16 July 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 77; Hidden J at 78
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - attempted murder - whether victim's injuries self-inflicted - whether jury verdict unreasonable
CATEGORY:	Principal judgment
CASES CITED:	Krishna v DPP [2007] NSWCCA 318
PARTIES:	Harb Yacoub (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/3141
COUNSEL:	C T Loukas (Appellant) N Adams (Crown)
SOLICITORS:	Procter & Associates (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/0228
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ
LOWER COURT DATE OF DECISION:	21 May 2007

2007/3141

McCLELLAN CJ at CL
SIMPSON J
HIDDEN J

WEDNESDAY 16 JULY 2008

YACOUB, Harb v R

Judgment

1 McCLELLAN CJ at CL: Harb Yacoub was convicted following a trial by jury in the District Court of the attempted murder of the victim. He was sentenced to a non-parole period of six years with a balance of term of two years. He challenges his conviction but does not seek leave to appeal against the sentence imposed.

2 The appellant makes no complaint about the conduct of his trial. He seeks to advance only one ground of appeal, being that, on all the evidence, “the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported.” It may be that leave to argue this ground is required (see Krishna v DPP [2007] NSWCCA 318). The Crown does not oppose leave and in my opinion it should be granted. I will refer to Mr Yacoub as the appellant.

The Crown case

3 Before considering various issues in detail it may be helpful to outline the Crown case. It began with evidence that the appellant and the victim commenced a relationship after meeting in a coffee shop. The appellant is a Lebanese-Australian Christian and the victim is a Sudanese-Australian Christian who has spent most of her life in Dubai. Her parents were still residing in Dubai. The victim lived in Sydney with her grandmother.

4 During the months of their relationship the appellant obtained money, in the order of $60,000, from the victim on promises that he would marry her. They had sexual relations on a number of occasions. The victim obtained the money from her parents and brother in Dubai, her grandmother, from her own savings and by selling some jewellery.

5 On the day of the incident, 22 February 2006, the victim told the appellant that she had placed $800 in his bank account but had no more money. The appellant promised the victim that he would not ask her for any more money and arranged for them to go out that night for “a celebration.” He picked the victim up in his car. She rang her friend Ms Hassan when she was in the car with the appellant. The victim told Ms Hassan that she had told her grandmother she was going out that night with Ms Hassan to a party (the victim agreed when giving evidence that she rang Ms Hassan to ask her to tell a lie in case her grandmother rang). The appellant also spoke with Ms Hassan and asked her to join them. Ms Hassan declined.

6 Shortly afterwards, the appellant stopped the car to allow the victim to purchase a bottle of Ouzo. They then went to the Comfort Inn Town and Country Motel in South Strathfield. The victim went alone to the reception and booked a room. She then called the appellant on his mobile phone and gave him the room number. He then left his car and came directly to the room as arranged.

7 When they got to the motel room the appellant removed his clothes and the victim removed her clothes. The appellant told her to drink from the bottle directly and to make sure she took a big sip so it would not hurt her throat. She agreed in evidence that she did not say at any time she did not want to drink the Ouzo but said that she “wanted to drink it as a human being with water and ice” to enjoy herself, rather than drink it directly form the bottle. The victim agreed they had consensual intercourse on the bed and then she performed oral sex on the appellant. When the appellant ejaculated she said he “told me to swallow the sperms and I said – I refused and I just kept them in my mouth. When he got up to wash off, I just spitted on the tissue.” The appellant came and sat next to her on the bed. He said there was something he needed to tell her. She said he “just told me that he is married and have kids, and that’s when I had the shock and I started crying so hard from my heart.” He got up from the bed and she asked him where he was going. He said he was just going for a smoke and sat on the sofa and she could see he was having a smoke. She said that after the appellant had the smoke on the sofa he returned to the bed. He then proceeded to cut both her wrists and inflicted a further cut to her neck.

8 The victim agreed that in her statement to police on 2 March 2006 she gave an account of the events which differed in some respects from her evidence at the trial. She accepted that she told the police when making a statement on 2 March 2006 that she saw the appellant come out of the bathroom and “He walked straight over to me. I thought he was coming to console me.” Then she said “He got to the right hand side of the bed where, I was now lying, after rolling back over onto my back. Harry took my right arm with one of his hands, I felt something cutting my right wrist.”

9 The victim agreed she may have told police who spoke with her at the hospital that, rather than coming from the bathroom, the appellant had come from where he had been sitting on the sofa and inflicted the injuries on her. She ultimately thought the sequence she gave the police at the hospital was correct and that the appellant had come over from having a cigarette on the sofa – not from the bathroom before he attacked her. She agreed she was more sure about the sequence of events when giving evidence than she was in March when she gave the statement to the police.

10 The victim agreed that when the appellant cut her wrists and neck she did not scream or shout aloud. She said in evidence, “Yes I shouted very hard but inside my heart, I was praying, I was shouting to Jesus to help me.” She agreed she did not react spontaneously by pulling her wrist away stating, “I didn’t react in any other way because at that time I was shocked and I was – you can – the alcohol was also – I was – I didn’t know if it was real or it was like me dreaming a bad dream or it was really happening to me.” She said she could not move or scream out because “the alcohol was playing in my head.”

11 The victim said that her eyes were closed the whole time the injuries were being inflicted. At some point she felt the appellant had left the room and she knew she had to get up from the bed and look for her mobile so she could call for help. She agreed that it was around half an hour after the cutting sensations before she called reception. She said she had trouble raising herself from the bed to call for help. At first she could not find her bag. Then she realised her bag was on the table and not on the sofa. She was feeling dizzy and weak. She went to the table to get her bag, which dropped off the table and onto the floor. She looked inside the bag for her mobile telephone but could not find it. She said that she did not go into the bathroom but was sitting on the floor unconscious for a while. It could have been for 10 or 15 minutes, she was not sure. After that she vomited. She said that “When I got up from the bed the first thing I did is I try to wrap my right hand because it was the most one – the cut was really big in it and the blood was coming very heavily. I grabbed the towel which was on the bed and I just wrapped it around my right hand.” She agreed she did not wrap anything around her left hand or neck. As far as she was aware, while she was unconscious on the floor her other wounds were still bleeding but not as much as the injury to her right hand. When she awoke and got hold of her bag she took out her watch and saw that it was around 9.30 pm.

12 The victim called reception and said “Please can you call the ambulance because someone tried to kill me … someone tried to kill me.” The receptionist told her the ambulance was on its way and the victim put her jeans and shirt on. She was taken by ambulance to the hospital.

13 The police interviewed her at the hospital. The victim did not agree that she told police that night that she was sitting on the bed when the appellant came and cut her, although she accepted that the police may have written that in their notes. She was not sure what she said to police about sitting, but she firmly believed she was lying on the bed.

14 She agreed after the appellant inflicted the injuries she pretended to be dead. She lay there not breathing with her eyes closed and not moving.

15 The police conducted a search of the motel room and areas surrounding the motel. A cutting implement which could have caused the victim’s injury was not found. The windows in the motel could not be opened and the clothes the victim was wearing that evening had no pockets. When the appellant was later arrested he was found to be in possession of the victim’s mobile phone. His fingerprints were found on the Ouzo bottle and the bathroom door of the motel room. An analysis was done on seminal fluid in a ball of tissues found next to the bed which resulted in a full DNA profile match with the appellant. An open packet of Stanley blades was found in the boot of the appellant’s car.

16 There was a time lapse of about 50 minutes between when the appellant left the motel, (he was recorded on a CCTV camera) and when the victim phoned reception asking for help. The victim explained this lapse of time as being due to her shocked state, during which she vomited, felt dizzy and lapsed into unconsciousness. There was objective evidence of her vomiting and being incontinent.

17 The victim was the primary Crown witness. The trial judge made plain to the jury that the Crown case depended upon her evidence. His Honour gave careful instructions to the jury as to how to assess a witness’s credibility and discussed the appropriate approach to the victim’s evidence in some detail. No complaint is made about any direction given to the jury.

The defence case

18 The appellant did not give evidence. The defence case was that he did not inflict any of the injuries on the victim. It was further contended that he had never proposed to the victim and, although it was accepted that they met a few months earlier, it was said that they only had a brief affair. It was suggested that the victim did not give the appellant large amounts of money as she had alleged. Rather it was contended that the payments by her were confined to approximately $4,000.

19 The defence case accepted that the appellant and the victim met on the evening of 22 February 2006 when the victim bought a bottle of Ouzo. It was contended that she then performed oral sex on him in the back of his car. At that point the appellant told the victim he was married and they had an argument. About half an hour later he dropped her off at the motel. She had decided to stay the night because of her embarrassment in returning home when she said she would be out for the evening and went ahead and booked a room.

20 The victim then went to the room and rang the appellant and asked him to come back to talk about matters. It was suggested that the appellant eventually came to the room where they talked for quite a while about what had happened. After a time they had sex together after which the victim started crying. She became angry at him and the appellant ultimately decided to leave. It was suggested that the victim was angry and threw her mobile phone at the appellant which fell on the floor and he then picked it up and left.

21 It was put to the victim by counsel for the appellant that after the appellant left the motel she had consumed the half bottle of Ouzo. It was suggested that she was emotional and her defences were down and she decided to end her life. Defence counsel put to her that she either started out to harm herself and then decided against it, or she was intent on harming the appellant by making false allegations about him after inflicting the injuries on herself. It was put to the victim that having sex with a married man brought great shame in her culture. It was suggested that when she was alone in the room, after the appellant left, the realisation of the shame hit her and she could not cope with it.

22 It was put to the victim that she secreted the cutting implement somewhere in the motel in the time between when she cut herself and the call for help. It was suggested that she may have gone outside and abandoned the cutting implement in the garden before phoning reception.

Some inconsistencies and confusion

23 At the trial the defence emphasised that there were some internal inconsistencies in the victim’s evidence. I have referred to them in the summary of the Crown case. They were fully aired before the jury and highlighted by the address of defence counsel. Dr Timothy Green, the emergency doctor who first saw the victim described the victim’s physical state when she arrived at the hospital. He indicated that from his experience he could understand how a version of events given by someone in a hospital bed after sustaining potentially life threatening injuries may not be entirely consistent with their recollection of the events some weeks later.

24 The victim said she had received “ten proposals” of marriage. There was a great deal of cross-examination on this issue during which the victim said the appellant was not the first man to propose to her and that she thought at least ten men had proposed to her in the past. She said they were all Muslims and “they won’t be knocking on my door” because “I can’t get married to a Muslim person.” She said that she had received two proposals of marriage since the appellant had asked her to marry him. She later explained that when referring to a proposal she did not mean a proposal of marriage but rather an invitation by a male person to have a “relationship” with her. She later acknowledged that she may not have correctly understood what the questioner had meant by a proposal.

25 When pressed on the matter and it was suggested that she had lied about there being ten proposals she replied “because they did propose to me but I don’t consider them as a proposal because I cannot take them to my parents and tell them they proposed to me.” When she withdrew her evidence that ten people had “proposed to her” she said “proposal for us, back in Dubai, is different than what you have here … Our traditions in Arabic is different than your traditions. I hope you are aware of that.” Ultimately it was apparent that when speaking of a proposal the victim was speaking of an arrangement whereby a couple would “go steady.” She said that when the appellant proposed to her she believed it was a real commitment because he spoke about going to the church to get married. She said that this was the only time she had been proposed to in this way.

26 The trial judge dealt with the issue of proposal. His Honour suggested that in considering this issue the jury should not “brush aside … the subtleties of language.”

27 I accept that there were inconsistencies in the victim’s account of the events. This is not surprising. Whatever be the correct sequence, the events were traumatic. Given the alcohol she had consumed, her wounds and distress it is to be expected that some of her recollection for detail was impaired. It is apparent the jury accepted the victim’s evidence. The inconsistencies in her recollection could not justify intervention by this Court. The same is true of the confusion in her evidence as to the number of “proposals” she had received.

The victim’s mobile telephone

28 After the victim was wounded she said that she looked for her mobile phone in her handbag to call for help but could not find it. Her mobile telephone records showed that she had last used her phone in the motel room at 8.10 pm that evening. The call lasted 30 seconds. Both the timing and duration of the call are consistent with the evidence which the victim gave that she telephoned the appellant to inform him of the number of the motel room she had checked into.

29 The victim’s mobile telephone was subsequently found by police in the appellant’s car the following day. The SIM card, which would have identified calls between the victim and the appellant, had been removed.

30 The appellant’s counsel suggested that the victm had thrown the telephone at the appellant before he left the motel room and that he had picked it up and taken it. The victim denied this suggestion. It is difficult to understand, if the appellant’s account of the events is correct, why he would have taken the mobile phone, even if it had been thrown at him. With respect to the SIM card the Crown suggested that the appellant had removed it in order to destroy any evidence of contact between himself and the victim the previous evening.

31 The appellant’s explanation was that he had removed the SIM card so that his wife would not happen upon evidence which might indicate that he was having an affair. It is difficult to accept this explanation. If the appellant was concerned that his wife might discover incriminating items it would seem unlikely that he would have taken the mobile telephone. Furthermore, it is difficult to understand how his wife would have been able to retrieve information from the SIM card to any significant extent. It was of course entirely foreseeable that if the police obtained the SIM card they would be able to retrieve information available from it.

The victim’s mental state

32 There was no history of the victim ever having suffered from any mental illness including depression. Dr Green’s evidence was that:

“In my experience most patients with self inflicted wounds will admit to their causation unless they are psychotic. [The victim] showed no signs of psychosis or any other alteration of her mental state.”

33 During the period when the victim was in hospital there was no indication of any concern by the hospital staff in relation to her mental health.

34 Ms Hassan was questioned about whether she had observed any signs of depression in the victim. She indicated that the victim had never indicated to her that she was depressed prior to the incident.

35 There was evidence from Detective Campbell that when she interviewed the victim’s grandmother she said that the victim may be “depressed sometimes.” The grandmother was not called at the trial and there was no evidence as to what she meant when she used the word “depressed.” The trial judge gave this warning to the jury:

“To say somebody is depressed can mean an almost infinite number of things; it can certainly mean one of two things. It can mean they are a bit down or it can mean they are suffering from a diagnosable psychiatric illness. That becomes important in this case because if the word ‘depression’ means the latter, then it does go some way to explaining why a person might be suicidal. If it means the former, it does not really amount to anything at all.”

36 I do not believe this evidence from Detective Campbell to be of any significance.

The victim’s demeanour

37 The appellant’s counsel suggested during the trial that the appellant and the victim had argued in the car after the bottle of Ouzo had been purchased. However, the CCTV footage recorded when the victim checked into the motel, which I have examined, does not suggest that the victim was in any way distressed or concerned. Her demeanour does not suggest that she was in conflict with any person. Ms Jenny Ferizis, the receptionist at the motel gave evidence. She said that the victim was “calm natured” when she booked in.

The money

38 The defence challenged the victim’s suggestion that the appellant had given her large sums of money. He accepted that he received only about $4,000. However, the victim’s bank records were tendered which showed the withdrawal of large sums consistent with Ms Hassan’s evidence. In my opinion the jury were entitled to accept that significant sums had been paid. It was open to the jury to conclude that the appellant only admitted to receiving approximately $4,000 because these were the amounts of money which went directly into his bank account and accordingly, could be traced. They may also have concluded that he overlooked the fact that the victim’s bank records would show relevant withdrawals.

The appellant’s lie

39 When the appellant was approached by police at about 2 pm at his home on the day after the victim was injured he was told that he was under arrest for an attempted murder. The arresting constable said:

“You are under arrest for an attempted murder in Strathfield last night. If you do not comply with my directions you may be committing further offences.”

40 The appellant’s immediate response was:

“What for? I was at home from 6 pm last night.”

41 The appellant then indicated that he had a poor understanding of English. Although an interpreter was brought to the police station he did not further respond to questions.

42 The fact that the appellant had lied was confirmed by other evidence obtained during the investigation. In particular the appellant’s DNA was found in the motel room. His fingerprints were also found on the Ouzo bottle and on the bathroom door. He is also clearly visible on the CCTV footage entering and leaving the motel.

43 The Crown relied upon the appellant’s immediate response to the constable as a lie evidencing a consciousness of guilt on his behalf. The jury was appropriately instructed as to how they could take this lie into account in the Crown case.

44 It was contended on behalf of the appellant that his lie to police was explained as an attempt to hide the affair rather than to avoid being implicated in an attempted murder. However, the Crown emphasised that the arresting constable did not mention the complainant’s name, only that there had been an “attempted murder”, and accordingly the appellant’s response was consistent with him having knowledge of the victim’s circumstances. In my opinion the appellant’s lie adds weight to the Crown case.

The absence of a weapon

45 An important aspect of the Crown case was that no cutting implement capable of inflicting the injuries on the victim was found anywhere in the motel room. The Crown case was that the appellant had taken the weapon which he had used with him when he left. The absence of any weapon was quite inconsistent with the injuries having been self-inflicted.

46 A crime scene officer gave evidence of having searched the motel room. She indicated that when she carried out the search she was looking for an implement of possible self-harm. She said the search was:

“Quite thorough, I overturned all the furniture in the unit, I checked the floor waste in the bathroom with a torch, also checked the vanity basin waste as well, the cistern of the toilet, yeah lifted up all the cushions, under the bed, everything, I made a thorough search and I located no items.”

47 Other constables carried out a complete and systematic search of the room. They also conducted a comprehensive search of neighbouring gardens and yards looking for weapons.

48 The victim said that she did not see the weapon that cut her. She said that the cutting was fast and that the appellant started with her right hand and then her left. She felt the cuts but did not see what he was cutting her with.

49 The police found an open packet containing three Irwin-brand Stanley blades in the appellant’s car. Such a blade was capable of inflicting the victim’s wounds and would account for her not having seen the handle of a knife.

50 It was contended on behalf of the appellant that the victim disposed of the weapon after wounding herself and before calling for help. It was suggested that she may have put the cutting implement down the bathroom sink, secreted it under the door mat or gone out into the motel grounds and disposed of it before returning to her room and calling an ambulance. It could not have been thrown from a window of the room. They were double glazed and could not be opened. The ambulance officer who cleaned the ambulance gave evidence that no weapon was found in the vehicle after the victim had been admitted to hospital.

51 I regard the appellant’s suggestions as bordering on the fanciful. In my opinion it was highly improbable that the victim inflicted the serious injuries on herself and (whilst significantly intoxicated and in shock from the bad news she had received from the appellant and having vomited and possibly passed out) had the presence of mind to, either dispose of the weapon down the bathroom sink, or, leave the room. There was no evidence of blood droplets consistent with these movements. The emergency room at the hospital recorded that when the victim arrived she had “a considerable amount of blood in her hair and over her trunk and torso.” The suggestion that she hid the weapon in the garden so that it could not be found by police and then returned to her room and called for help is entirely unbelievable. The suggestion that in her physical state the victim took steps to create the suggested deception was clearly rejected by the jury and in my opinion it was correct to do so.

52 The Crown emphasised that the defence theory assumed that on the night she was injured the victim had in her possession a cutting implement capable of inflicting the harm on herself. Even the defence accepted that she had expected the evening to be a happy occasion when she was to be taken out for a celebration. There was no reason for her to have suspected that the evening would end in total disappointment causing her to inflict significant harm upon herself. There was simply no reason for her to have a cutting implement capable of causing her death in her possession that night. And there was no evidence that she did have one.

The evidence of Samia Hassan

53 Ms Hassan was a friend of the victim’s and gave evidence which was consistent with the victim’s account of her relationship with the appellant. She said that the victim had confided in her and told her of her meetings with the appellant. She told Ms Hassan that the appellant had an opportunity to get a unit at a good price and if she could get the deposit he would pay the rest of the money. The house would be in her name and that would be his marriage gift for her.

54 On one occasion Ms Hassan was with the victim when she withdrew money from a Westfield Commonwealth Bank. Apparently she withdrew a large amount of money that her mother had sent to her. She told Ms Hassan that the money would go toward the deposit for the unit the appellant was buying for her. Ms Hassan realised that the victim was withdrawing monies and selling her gold. The victim was short of money and told Ms Hassan that the appellant was going through difficult times because someone borrowed money from him and had not paid it back. She also told Ms Hassan that the appellant had told her that he needed money because his father had died and he needed money for his funeral. A strong attack was made upon Ms Hassan’s credit. She did not agree that she was prepared to lie for the victim or that she had lied in court.

55 After the victim had been picked up by the appellant on 22 February she spoke to Ms Hassan on the telephone. The appellant also spoke with Ms Hassan and invited her to join them. Ms Hassan declined.

56 This was not the first time the appellant had spoken to Ms Hassan. Two weeks previously the appellant had invited Ms Hassan to join him and the victim so that they could engage in sexual activity together. She declined. On the later occasion the appellant renewed the invitation. Ms Hassan insisted she was married and did not want to come.

57 The appellant submitted that it was inconsistent with the appellant having planned to kill the victim that he had invited her friend to join them that evening. This may be so. However, it is likely that the appellant’s intention was not serious. The victim did not believe it was. The appellant knew that Ms Hassan was married. It may also be that he had not formed the intention to kill the victim at that time or that he intended to kill her, but only after the friend had left them.

Evidence of planning by the appellant

58 There was evidence which suggested that the appellant had planned to murder the victim in the motel. It was the appellant who suggested that the victim buy some alcohol and gave her the money for it. He waited in the car outside the bottle shop and told her that he did not want the people standing there to see him. He gave her $50 and told her to get something strong so she could enjoy herself. She bought the bottle of Ouzo.

59 When the victim got back into the car the appellant asked her if she was sure she had bought a strong drink, because it appeared to be transparent. He opened the bottle and smelt it and said he was making sure it was strong enough.

60 Once in the motel room the victim said that the appellant encouraged her to drink a large quantity of the Ouzo. Her evidence was that he did not force her but that he did hold the bottle while she drank. She said that he was making her drink “big shots.” She asked the appellant why he was not drinking. He said he was not drinking because he was driving. She said that he told her to drink from the bottle directly and to make sure she took a big sip so it would not hurt her throat.

61 If the victim’s evidence is accepted the inescapable inference is that the appellant wanted to get the victim drunk. The Crown suggested that his purpose was so that she would be less resistant and less able to think clearly during any assault.

62 The victim also gave evidence which indicated that the appellant took steps to ensure that he was not seen entering the motel room. He stopped his car close to the motel and gave an excuse for not wanting to be seen. He told the victim that he would drop her off and go and park the car somewhere not too close. He told her to go inside and book the room. She later telephoned and told him the room number. After he arrived the victim said that the appellant had wanted to know what questions the receptionist asked her when she booked in. He had asked to know exactly what the receptionist had questioned her about.

63 The defence suggested that the appellant’s actions could be explained by him not wishing to be seen out of concern that he was having an extramarital affair. Even if this was the case it does not explain his insistence that the victim consume the Ouzo.

The medical evidence

64 Four expert witnesses gave evidence at the trial in relation to the victim’s wounds. Dr Timothy Green treated her when she first arrived at Royal Prince Alfred Hospital. Dr Stuart Anderson was a police forensic medical officer who examined her wounds on 7 March 2006. Associate Professor John Hilton was called on behalf of the appellant. Associate Professor Hilton is an expert on, inter alia, wounds and blood patterns. Dr Philip Sharp was also called on behalf of the appellant. He is also an expert on wounds.

65 The evidence indicated that the cut to the right wrist was significantly more serious than the injury to the victim’s left wrist. The victim is right handed making it far more likely, if she had cut herself, that the injury to the left wrist would be the more significant injury.

66 There was no dispute that the injury to the victim’s right wrist had the potential to cause her death. It was also agreed that there was no indication of any hesitation wounds and there was a lack of evidence of any defensive wounds. The doctors also discussed the victim’s mental state.

67 Dr Green said that the wounds were of a consistent and even depth throughout. They had no multiple lacerations or jagged features to the edges which may have suggested hesitation when the wounds were made. He explained that it is common when people injure themselves for there to be evidence of an initial attempt, which is hesitant, before a further more definite injury is inflicted. He indicated that the initial wounds tend to have a jagged irregular appearance. Associate Professor Hilton’s evidence was to similar effect. He indicated that it is common to find, although not always, three or four superficial cuts before the ultimate wound is inflicted.

68 Dr Sharp said he could not give a firm opinion but “I tend to think that (the wounds) may have been self-inflicted.” When cross-examined he agreed that hesitation wounds are a common indicator of self-harm. He made no reference to them in his written report.

69 It was agreed that there was no evidence of any defensive wounds to the victim. This suggested that she had not fought off the appellant, which the defence submitted was consistent with her injuries being self-inflicted. However, the victim’s evidence was that immediately prior to the appellant cutting her she believed he was walking towards her to console her. Her evidence was that he was “very fast” and that she did not do anything. She said “I just made myself quiet, I didn’t scream, I didn’t do anything, I made myself like not showing that I’m breathing or anything.”

70 Dr Green was asked about this evidence. He said:

“Look, I don’t see any – I don’t see – I can see circumstances where a person by reason of intoxication, in view of cultural or ethnic belief or practice in terms of shock, emotional shock, I guess paralysis by fear that those circumstances may arise where the injuries are delivered in quick succession and the person is unable to protect themselves.”

71 Associate Professor Hilton said it was usual when people were attacked that they would try and defend themselves. This would result in defensive wounds. However, when cross-examined he agreed that a person who was not anticipating an attack and was taken by surprise may not defend themselves in a way which would give rise to defensive wounds.

72 Dr Sharp was of the opinion that it would be usual to find defensive wounds in persons capable of defending themselves. The lack of such wounds may be an indication of self-inflicted injuries. However, he agreed that a person might be “frozen by fear” in the face of an attack of the kind suggested by the victim. He said:

“I suppose so, I’ve not had any experience of seeing this so I’m trying to answer to the best of my experience. I don’t know the answer to that, I suppose it could be.”

Blood and the appellant’s clothing

73 The appellant relied upon the evidence of Associate Professor Hilton who suggested that given the injury to the radial artery there would have been a spurting of blood from the victim’s arm. He accepted that it would have been likely that there would have been at least traces of blood on the clothing of any person who had inflicted the injuries on the victim.

74 The victim’s evidence was that the appellant was only wearing shorts and underwear when he cut her. When the police searched the appellant’s house they seized the clothes they believed he had been wearing the previous evening including a pair of shorts. The shorts were retrieved from the clothesline. There was evidence, which the jury was entitled to accept, that the blood stains could have been washed completely out of the clothing, especially if the stain was fresh.

Conclusion

75 I have carefully examined the entire record of the trial. I am in no doubt that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of wounding the victim with the intent of killing her. In my opinion none of the arguments raised by the appellant, either alone or collectively, could lead to the conclusion that it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. The trial judge, correctly in my view, informed the jury that the Crown case essentially depended upon the view they formed of the victim’s evidence. If they accepted her evidence on the critical issues a conviction was inevitable. Although there were some issues raised by the appellant which the jury was required to consider, neither alone, or collectively could they raise a reasonable doubt in the face of the victim’s account of the relevant events.

76 I would dismiss the appeal.

77 SIMPSON J: I agree with the orders proposed and the reasons.

78 HIDDEN J: I agree with McClellan CJ at CL.

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