Court of Appeal (WA)|2019-04-05|Before: Buss P, Mazza JA, Hall J, Corboy J

COUZENS -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 54 (5 April 2019)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted after trial of murder - Whether the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported - Whether the evidence supported a finding beyond reasonable doubt that the appellant applied a ligature to the deceased's neck - Whether the evidence supported a finding beyond reasonable doubt that a ligature was the sole cause, alternatively was a significant or substantial cause, of the deceased's death

Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257

Campbell v The Queen [1981] WAR 286

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779

Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297

Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

This is an appeal against conviction.
On 15 August 2017, the appellant was convicted, after a trial before Corboy J and a jury, of one count in an indictment.
The count alleged that on 9 March 2016, at Midland, the appellant murdered Jody Raylene Websdale, contrary to s 279 of the Criminal Code (WA) (the Code).
On 6 December 2017, the trial judge sentenced the appellant to life imprisonment with a minimum non-parole period of 18 years.
The appellant's sole ground of appeal alleges that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
We would dismiss the appeal. Our reasons are as follows.

The State's case at the trial was, in summary, as follows.
As at 9 March 2016, the appellant and Ms Websdale had been in an 'on-and-off' romantic relationship for about 10 or 11 years.
As at 9 March 2016, Ms Websdale resided at Unit 8, 7 Cooper Street, Midland.
As at 9 March 2016, the appellant had been living with Ms Websdale, in her home unit, for about two weeks.
On the afternoon of 9 March 2016, the appellant and Ms Websdale were at her home unit. Rowan Ryan-Farrell, who was related to the appellant but who had only met him that day, was also at Ms Websdale's home unit.
The appellant and Ms Websdale were in possession of two small clipseal bags, each containing about 0.1 g of methylamphetamine. Ms Websdale took her clipseal bag upstairs to the bedroom while the appellant injected his methylamphetamine in the downstairs dining/living area.
Shortly after, Ms Websdale came downstairs and entered the rear courtyard of the home unit through an external sliding door. The appellant followed her immediately. He closed the curtains (which were covered in aluminium foil) and the sliding door behind him. Mr Ryan-Farrell remained inside the home unit. He was listening to music.
After about 10 minutes, Mr Ryan-Farrell went to the sliding door and opened it. He looked into the courtyard. Mr Ryan-Farrell saw Ms Websdale lying on her stomach on the ground. The appellant was standing over her and holding a pole. Mr Ryan-Farrell saw the appellant kick or nudge Ms Websdale with his foot and say words to the effect, 'wake up' or 'get up'. Mr Ryan-Farrell saw Ms Websdale's head move and assumed that she was communicating with the appellant.
The appellant turned and approached the sliding door. The expression on his face was angry. Mr Ryan-Farrell moved away from the sliding door and the appellant came inside. The appellant closed the curtains and the sliding door. Ms Websdale remained lying on her stomach on the ground in the courtyard.
The appellant resumed cooking a meal on the stove in the kitchen. When the meal was cooked, the appellant gave a bowl of food to Mr Ryan-Farrell, who took the bowl to a neighbouring unit where his sister lived. About 10 or 15 minutes later, Mr Ryan-Farrell returned to Ms Websdale's home unit.
When he entered Ms Websdale's home unit, Mr Ryan-Farrell saw Ms Websdale lying on her back on the ground in the courtyard. The appellant was cradling Ms Websdale's head on his lap. The appellant called for help. Ms Websdale was unresponsive. Mr Ryan-Farrell ran from Ms Websdale's home unit to obtain assistance. He then returned and assisted the appellant in his efforts to revive Ms Websdale. Shortly after, paramedics arrived but they were unable to revive her.
A post-mortem examination of Ms Websdale revealed a ligature mark across the front of her neck. There were petechiae in and about her eyes, under her chin and on the inside of her mouth. There was a small area of bruising on the muscles over her larynx and some non-specific bruising on her face, arms and torso. There were no other injuries of significance. Ms Websdale had an unexplained needle puncture mark on the side of her neck. A toxicology report indicated that Ms Websdale had a blood methylamphetamine level of 0.5 mg per litre. It was not disputed at the trial that Ms Websdale had a history of intravenous methylamphetamine use or that, on the day in question, she had injected herself with methylamphetamine shortly before she died.
Police located a syringe with a DNA profile matching Ms Websdale's DNA profile in a plastic basket on the bed of the upstairs bedroom (being the only bedroom in her home unit). Other syringes with DNA profiles matching Ms Websdale's DNA profile were found on the top shelf of the wardrobe in the upstairs bedroom, on a shelf of a kitchen cabinet and in a black bag under the laundry sink. No syringes were located in the courtyard.
A DNA profile matching the appellant's DNA profile was obtained from the syringe located by the police on the shelf of the kitchen cabinet. A DNA profile matching the appellant's DNA profile was also obtained from a syringe located in a locked blue metal box on the kitchen table.
The State called a forensic pathologist, Dr Daniel Moss, as a witness. Dr Moss determined that the primary cause of Ms Websdale's death was ligature compression of the neck combined with methylamphetamine effect as a contributing factor.
It was not in dispute at the trial that, on the medical and other evidence, the only possible mechanisms for Ms Websdale's death were:

(b) ligature compression of the neck combined with methylamphetamine effect; or

The State's case was that the appellant, having followed Ms Websdale into the courtyard on the first occasion, applied an unknown ligature to Ms Websdale's neck with the intent of killing her or causing her a bodily injury of such a nature as to endanger or be likely to endanger her life. The appellant, in the course of applying the ligature, killed her. The State alleged that Ms Websdale died, either when the ligature was applied to her neck or shortly afterwards, from a combination of the ligature compression of her neck and methylamphetamine effect.

Overview of the appellant's case at the trial

The appellant did not give evidence at the trial.
However, the appellant, through defence counsel, denied having applied a ligature to Ms Websdale's neck and suggested that the ligature mark across the front of her neck was self-inflicted by Ms Websdale, either in the course of a suicide attempt or for the purpose of self-injecting methylamphetamine.
Further, the appellant, through defence counsel, contended that the State had not proven beyond reasonable doubt that methylamphetamine effect alone was not the cause of Ms Websdale's death.
At the trial, defence counsel called a forensic pathologist, Professor Johan Duflou, as a witness.
Professor Duflou was of the opinion that it could not be determined, on the basis of the injuries to Ms Websdale's neck, whether the ligature mark across the front of her neck was self-inflicted or inflicted by a third party. Professor Duflou also gave evidence that where women under the influence of methylamphetamine die by suicide, there is a very high rate of suicide by hanging. Professor Duflou said that it was possible for a person to apply a ligature to his or her own neck and to inject methylamphetamine into the neck with a needle.

The sole ground of appeal alleges that the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
There are two particulars of the ground. First, it is alleged that the evidence did not support a finding beyond reasonable doubt that the appellant applied the ligature to Ms Websdale's neck. Secondly, it is alleged that the evidence did not support a finding beyond reasonable doubt that the ligature was the sole cause, alternatively was a significant or substantial cause, of Ms Websdale's death.
On 10 June 2018, Mazza JA ordered that the application for leave to appeal be referred to the hearing of the appeal.

The ground of appeal: the appellant's written submissions

The appellant's written submissions were, relevantly, as follows.
As to the first particular of the ground of appeal, counsel for the appellant submitted that the evidence, taken as a whole, did not support a finding beyond reasonable doubt that the appellant had applied the ligature to Ms Websdale's neck. Counsel asserted that there was no 'direct evidence' that the appellant had put the ligature around her neck. The police who attended at Ms Websdale's home unit found several pieces of 'rope' in the courtyard, but the evidence did not establish that any of them had been placed around her neck. None of the expert witnesses who gave evidence at the trial was able to conclude whether the ligature was applied by Ms Websdale or a third party.
As to the second particular of the ground of appeal, counsel for the appellant submitted that the State's case at trial was that ligature compression of Ms Websdale's neck caused her death and that methylamphetamine was a significant contributing factor. Counsel asserted that the appellant's case at trial on causation was that the cause of Ms Websdale's death could not be established beyond reasonable doubt. Dr Moss could only say that it was 'most likely' that the ligature was the primary cause of death. Counsel submitted that the combined force of the medical evidence did not permit the jury to make a finding beyond reasonable doubt that the ligature was the primary cause or a significant cause of death. There was another inference, consistent with the appellant's innocence, namely that Ms Websdale had self-injected methylamphetamine and that methylamphetamine was the primary cause or a significant cause of her death. The evidence as a whole did not support a finding of guilt to the criminal standard.

The ground of appeal: the State's written submissions

Counsel for the State's written submissions were, relevantly, as follows.
Counsel for the State submitted that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt. The whole of the evidence precluded all reasonable hypotheses consistent with innocence. The appellant's submissions failed to evaluate the interplay between the medical evidence and the other evidence adduced at trial. By adopting a piecemeal approach to the evidence, counsel for the appellant had failed properly to identify what inferences the jury were required to consider, and how those inferences were open on or excluded by the evidence.

The ground of appeal: its merits: the relevant legal principles

By s 270 of the Code, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
Section 271, s 272, s 273, s 274 and s 275 of the Code are concerned with causation in particular circumstances. Section 271 relates to death from an act or omission at childbirth; s 272 to causing death by threats or intimidation; s 273 to acceleration of death; s 274 to death from bodily injury which might have been avoided or prevented by proper precaution; and s 275 to the death of a person as a result of surgical or medical treatment administered reasonably properly and in good faith after the person has suffered grievous bodily harm.
The better view is that s 271, s 272, s 273, s 274 and s 275 do not limit the generality of the causation requirement in s 270. See Krakouer v The State of Western Australia.[1] We refer, in particular, to the expression 'directly or indirectly' in s 270 (emphasis added). See also TB v The State of Western Australia.[2]
In Campbell v The Queen,[3] the appellant was charged on indictment with unlawfully killing the deceased, who was an occupant of a car which collided with a car driven by the appellant. The jury acquitted the appellant of unlawful killing, but convicted him of causing the death of the deceased by driving a motor vehicle in a manner (including speed) that was, having regard to all the circumstances of the case, dangerous to the public or to any person, contrary to s 59(1) of the Road Traffic Act 1974 (WA). The appellant appealed on the ground that the trial judge had failed properly to direct the jury as to causation. The appeal was allowed. Burt CJ (Jones & Smith JJ agreeing) said in relation to the submission that the trial judge should have directed the jury that the appellant's conduct must be found to have been a substantial cause of the deceased's death:

Whether in this context it be permissible or helpful to introduce the word 'substantial' in a direction to the jury upon causation is a question upon which I would prefer at present to express no opinion. It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter (290).

In Royall v The Queen,[4] that statement of Burt CJ in Campbell was approved by Mason CJ (387), Deane and Dawson JJ (411 - 412) and Toohey and Gaudron JJ (423).
By s 270 of the Code, properly construed, factual causation in a criminal trial, where the accused is alleged to have killed the deceased, requires the alleged conduct of the accused to have in fact caused the deceased's death. The relevant conduct of the accused does not have to be the sole, direct or immediate cause of the deceased's death. It is sufficient, for the purposes of factual causation, if the relevant conduct was, in fact, a cause. The tribunal of fact is to determine factual causation by applying common sense to the facts as the tribunal finds them. See TB [124].
However, even if the State's case in relation to factual causation is made out, it remains necessary for the State to establish legal causation. In other words, factual causation is a necessary, but not of itself a sufficient, condition of criminal liability. See Krakouer [77] (McLure JA); TB [125].
By s 270 of the Code, properly construed, legal causation in a criminal trial, where the accused is alleged to have killed the deceased, is concerned with the attribution of criminal responsibility; in particular, with whether the factual connection between the alleged conduct of the accused and the deceased's death is sufficient to justify moral culpability and, therefore, criminal responsibility. It is established that legal causation requires that the alleged conduct of the accused have substantially or significantly contributed to the deceased's death. It is for the tribunal of fact to decide whether or not the contribution of the relevant conduct of the accused was substantial or significant. See Royall (398) (Brennan J), (411) (Deane & Dawson JJ), (423) (Toohey & Gaudron JJ). See also Krakouer [23], [30] - [31], [39] (Steytler P, Wheeler JA agreeing), [77] (McLure JA); TB [126].
Identifying an act or omission as causing the death of a victim may be of importance in a criminal law context because that process will, in some cases, affect matters relevant to the alleged offence including, for example, intent or voluntariness. See Arulthilakan v The Queen.[5]
It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[6] Zaburoni v The Queen;[7] GAX v The Queen.[8]
An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 - 493); SKA v The Queen.[9]
The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[10]
The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[11] SKA [13].
The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494 - 495). See also R v Hillier;[12] Fitzgerald v The Queen;[13] R v Baden-Clay.[14]
The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden-Clay [65] - [66].
The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] - [24]; BCM v The Queen;[15] GAX [25].
The nature and extent of the appellate court's task, in a particular case, will be informed by:

(e) the way in which the case was ultimately left to the tribunal of fact;

(f) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

For example, in Zaburoni the critical issue concerned what was able to be inferred, beyond reasonable doubt, about the appellant's state of mind. The question for the appellate court was whether, having made its own independent assessment of the evidence, the court considered it to have been open to the jury to be satisfied beyond reasonable doubt that the appellant had the requisite subjective intention [56].

The ground of appeal: its merits: the evidence at the trial

We will now recount aspects of the evidence at the trial.
Senior Constable Peter Hedge was a State witness at the trial. He had been a police officer for 19 years. During that period he had worked for 13 years as a forensic investigator. Constable Hedge described photographs he and other members of his team had taken of the crime scene. There were photographs of, amongst other things, the rear courtyard of Ms Websdale's home unit; a collapsible clothes line in the courtyard; yellow cotton rope; a bootlace or shoelace about 25 cm in length; a black cord in the kitchen; a black cord in a clothes basket; a black cord near a television; and a white cord on a shelf (ts 197 - 214). Constable Hedge and other members of his team photographed what they thought were items of relevance to the investigation of Ms Websdale's death (ts 215). They were not endeavouring to locate syringes or drugs (ts 216 - 218). Constable Hedge said it was possible that there was more prescription medication and there were more syringes in the home unit than those shown in some of the photographs (ts 218).
First Class Constable Brendan Clark was a State witness at the trial. At the material time he was a forensic investigator. Constable Clark identified various photographs that had been taken of the appellant, Ms Websdale's home unit and various items in the home unit. The photographs of the appellant depicted his hands and an area of red colouration on his right cheek. Constable Clark said that a fingerprint examination was conducted on a clothesline situated in the courtyard of the home unit. No fingerprints were able to be recovered (ts 247). Constable Clark took photographs during the post-mortem examination. The photographs showed that Ms Websdale had suffered an injury to her neck (ts 284 - 286). Constable Clark said that he had not been specifically searching for drug-related equipment when he was at the home unit (ts 253). However, he had found medication with Ms Websdale's name on it in a wardrobe and a syringe on the top shelf of the wardrobe (ts 254). The wardrobe was inside the bedroom (ts 254). He had also found in the bedroom a modified plastic bottle used for smoking cannabis (ts 255). Constable Clark photographed a swag he had found at the home unit. He did not examine the swag or open it. He was unable to identify or explain the nature or quality of a form of binding around the middle of the swag (ts 256).
Mr Ryan-Farrell was a State witness at the trial. Mr Ryan-Farrell was an important witness. We will therefore recount the significant parts of his evidence, both in evidence-in-chief and in cross-examination, even though there is a substantial degree of overlap between his account of events in response to questions from the prosecutor and in response to questions from defence counsel.
Prior to 9 March 2016, Mr Ryan-Farrell had not met either the appellant or Ms Websdale (ts 288). On 9 March 2016, he went to Ms Websdale's home unit after he had been to his sister's home unit in the same block of units. Mr Ryan-Farrell said there were two $100 bags of 'meth' on the dining room table at Ms Websdale's home unit (ts 262). He saw the appellant give one bag of methylamphetamine to Ms Websdale and he saw the appellant inject himself with the methylamphetamine in the other bag by using a syringe at the table (ts 263).
Mr Ryan-Farrell gave evidence as to the appellant and Ms Websdale having shouted at each other before both of them walked outside into the courtyard. He could not see either of them in the courtyard. The back door was shut and the curtains were closed (ts 263 - 265). After 10 minutes, Mr Ryan-Farrell checked on the appellant and Ms Websdale. He saw the appellant standing with a pole in his hand and Ms Websdale lying on the ground on her stomach. The appellant was nudging or kicking Ms Websdale in the thigh and saying 'get up' or 'wake up' (ts 265 - 266). Mr Ryan-Farrell saw Ms Websdale's head moving. She appeared to be communicating but he could not hear her say anything. Mr Ryan-Farrell saw the appellant and the appellant walked towards him. Mr Ryan-Farrell became scared and stepped back. The appellant walked into the home unit and shut the door and closed the curtains behind him. The appellant seemed angry (ts 266).
The appellant then did some cooking and gave a bowl of food to Mr Ryan-Farrell. The cooking of the food took about 10 minutes. Mr Ryan-Farrell went to his sister's home unit with his bowl of food. He stayed at his sister's home unit and ate some of the food. After five to 10 minutes, he returned to Ms Websdale's home unit (ts 268). He walked inside and went to the kitchen. The back door was open. He walked towards the door and saw the appellant on the ground with Ms Websdale. The appellant said 'help. Help'. Ms Websdale was lying on her back and the appellant was holding her (ts 268 - 269). The appellant looked scared. He said 'she's not breathing. Ring the ambulance, get help'. The appellant asked Mr Ryan-Farrell to get some water to wet Ms Websdale to try and wake her. Mr Ryan-Farrell turned on a tap and with a hose squirted Ms Websdale a little. She did not wake. Mr Ryan-Farrell ran to his sister's home unit and asked Craig Websdale to telephone for an ambulance. Mr Ryan-Farrell told him Ms Websdale was not breathing (ts 269 - 270).
Mr Ryan-Farrell and Craig Websdale went to Ms Websdale's home unit. Ms Websdale was still lying on the ground. Her lips were 'a little bit purple and pale'. Mr Ryan-Farrell could not tell whether she was breathing. Craig Websdale telephoned for an ambulance. Mr Ryan-Farrell and the appellant endeavoured to resuscitate Ms Websdale (ts 270 - 271).
Mr Ryan-Farrell said in cross-examination that when an ambulance arrived the appellant was running up and down, as if he was stressed (ts 289). At some stage, ambulance officers, police officers, members of Ms Websdale's family and neighbours were at Ms Websdale's home unit (ts 290 - 291).
Mr Ryan-Farrell also said in cross-examination that on 9 March 2016, before the incident in the courtyard, he and the appellant had gone to Liquorland to buy alcohol (ts 299). He had previously said they went to Dan Murphy's. They bought a one litre bottle of Jim Beam whiskey and two one litre bottles of Coca Cola. Mr Ryan-Farrell said that on the day in question he was 'a little bit' affected by alcohol (ts 304). He rejected defence counsel's suggestion that he had an inaccurate memory of what had occurred on 9 March 2016. The alcohol he had consumed and the stress or trauma of the events of that day only affected his recollection of names (ts 325). Mr Ryan-Farrell said that he had poured some Coca Cola out of a bottle of the soft drink and had poured some of the one litre bottle of Jim Beam whiskey into the Coca Cola bottle to the level 'where normally Coke is' (ts 332). Mr Ryan-Farrell rejected defence counsel's suggestion that he filled the Coke bottle 'full' with whiskey. He drank a 'bit more than' half of the (now mixed) contents of the Coca Cola bottle (ts 332 - 333). Mr Ryan-Farrell maintained that he was at a 'normal' level of drunkenness in that he was not falling over and he knew how to talk (ts 334). He saw the appellant drink something from a cup, but he did not know what the appellant was drinking (ts 331).
Mr Ryan-Farrell reiterated in cross-examination that he saw Ms Websdale go up the stairs of the home unit with one of the packets of methylamphetamine. Soon afterwards, he heard the appellant (who was downstairs) shouting to Ms Websdale (who was upstairs) (ts 337). Mr Ryan-Farrell said he did not pay attention to the argument and he had blocked out the details (ts 338). The appellant was not shouting in anger, but merely wanted to be heard (ts 341). Mr Ryan-Farrell did not know whether Ms Websdale still had her bag of methylamphetamine when she came downstairs (ts 341). Ms Websdale then went outside. The appellant followed her outside 'straight after' (ts 264, 343, 348). When they were outside, Mr Ryan-Farrell continued drinking inside. The door was shut and the curtains were closed. He could not hear anything happening in the courtyard because music was playing inside (ts 343, 345). After some time, Mr Ryan-Farrell went outside. He said about 10 minutes had elapsed, but on a previous occasion he had said only three minutes had elapsed (ts 346 - 347). When he went outside, Mr Ryan-Farrell saw Ms Websdale on the ground. Mr Ryan-Farrell was certain that the appellant entered the courtyard behind Ms Websdale and that the appellant shut the door behind him. Mr Ryan-Farrell was also certain that the only time the appellant came back into the home unit was when Mr Ryan-Farrell went to the door to check what was happening in the courtyard (ts 349 - 350, 353, 363). Mr Ryan-Farrell said that when he opened the door and looked outside, he saw Ms Websdale on the ground and the appellant 'nudging' her with his foot (ts 355). The appellant was holding a white pole and Ms Websdale was moving her head (ts 355). When defence counsel asked Mr Ryan-Farrell whether the white pole 'could ... have been a mop', Mr Ryan-Farrell responded that it was 'a white pole about up to his shoulder'. Mr Ryan-Farrell added that he did not see the other end of the pole, but 'it [did not] look like there was [anything] on the other end' (ts 355).
Mr Ryan-Farrell said in cross-examination that the appellant walked towards him with the white pole. The appellant's face and body language were 'aggro' and this made Mr Ryan-Farrell scared (ts 359). The appellant dropped the pole and walked towards him with 'an aggro face' (ts 359 - 360). The appellant came inside and shut the door, leaving Ms Websdale outside (ts 363). The appellant finished preparing a meal and gave him a bowl of food. Mr Ryan-Farrell took the bowl of food and went 'around the corner' to his sister's place (ts 363). About five to 10 minutes later, Mr Ryan-Farrell returned to Ms Websdale's home unit and saw the appellant with Ms Websdale on the ground in the rear courtyard (ts 365). The appellant was shouting for help and saying 'she's not breathing'. Mr Ryan-Farrell ran to his sister's place to get help. When he returned to Ms Websdale's home unit, the appellant was endeavouring to resuscitate her (ts 367).
Declan O'Neill was a State witness at the trial. On 9 March 2016, Mr O'Neill was a paramedic with St John Ambulance Association. He attended the incident at Ms Websdale's home unit (ts 377). On that day Shawn Stewart was his partner (ts 377).
Mr O'Neill and Mr Stewart arrived at Ms Websdale's home unit in their ambulance at between 1.52 pm and 1.55 pm on 9 March 2016 (ts 377). When the ambulance arrived, two Aboriginal men were standing in the driveway. They led Mr O'Neill and Mr Stewart into the home unit (ts 378). Mr O'Neill went to the rear courtyard. A green garden hose was running. Another man was cradling Ms Websdale. This man was Aboriginal. He was wearing a short-sleeved or sleeveless black shirt. Ms Websdale was unresponsive (ts 378). The man who was cradling Ms Websdale was emotionally upset. The man became aggressive towards Mr O'Neill and Mr Stewart (ts 378). Mr O'Neill said that in his experience that is not an uncommon reaction from bystanders (ts 383). Mr O'Neill turned off the hose and asked the man to move so that Mr O'Neill and Mr Stewart could examine her. The man was aggressive and swore at them (ts 379). Mr O'Neill said that when he arrived at the home unit he heard the words '[we had] been using amphetamines' or '[she had] been using amphetamines' (ts 379). Mr Stewart made the initial assessment of Ms Websdale. Other paramedics arrived. Mr O'Neill and Mr Stewart endeavoured to resuscitate Ms Websdale. When they arrived at the home unit no effort was being made to resuscitate her (ts 380). Mr O'Neill said that he and Mr Stewart had cut away Ms Websdale's T-shirt and underwear to enable them to put defibrillator pads on her and to monitor her heart rhythm. The defibrillator detected no rhythm. They were unable to defibrillate her (ts 380). Mr O'Neill said that he noticed a short length of rope about 1 m to 1.5 m from Ms Websdale (ts 380). He also noticed some bruising around her lower left neck area. Ms Websdale remained in cardiac arrest. She was placed in the ambulance and taken to Midland Hospital (ts 381).
Mr O'Neill said that a small zip lock bag containing a black substance was in Ms Websdale's right bra cup. He left the substance at the scene and informed the police about it (ts 383). Mr O'Neill gave evidence that when he arrived at the home unit Ms Websdale was positioned so that her feet were towards the door and her head was towards the back fence (ts 384). Mr O'Neill said that prior to leaving the home unit he spoke to the man who had been cradling Ms Websdale and who was still emotionally upset and angry. He asked the man how long Ms Websdale had been unresponsive. The man said that he did not know. The man also said that he and Ms Websdale had 'shared some gear maybe two hours ago' (ts 388 - 389).
Shawn Stewart was a State witness at the trial. On 9 March 2016, Mr Stewart was a paramedic with St John Ambulance Association. He attended the incident at Ms Websdale's home unit with Mr O'Neill as his partner (ts 389). Mr Stewart performed a preliminary examination of Ms Websdale. She was not breathing and her heart was not beating. Mr Stewart and Mr O'Neill endeavoured to resuscitate her. Mr Stewart noticed ligature marks around Ms Websdale's neck. The marks were slightly pink in appearance (ts 391). Mr Stewart also noticed a piece of rope near Ms Websdale. The rope had an eyelet in it and a splice at the end. He could not recall the colour of the rope. Defence counsel informed Mr Stewart that Mr Stewart's recollection as to the position of Ms Websdale's body when he arrived at the home unit was different from Mr O'Neill's (ts 396). Mr Stewart concluded that his memory on this point could be mistaken (ts 396 - 397). Mr Stewart accepted that the first thing he noticed in the courtyard was that Ms Websdale was slumped in a man's arms and that the man was emotionally distressed (ts 400). Mr Stewart told the man that Ms Websdale would need to be placed on the ground so that Mr Stewart and Mr O'Neill could assess her. The man then placed her on the ground. Mr Stewart began assessing Ms Websdale while Mr O'Neill endeavoured to escort the man towards the inside of the home unit. The man was aggressive towards Mr O'Neill because the man wanted to remain in the courtyard (ts 401).
Maddison Ugle was a State witness at the trial. At the time of the trial she was aged 18 and was a police cadet (ts 427). Ms Websdale was her mother. After receiving a telephone call on 9 March 2016, Ms Ugle and her sister, Courtney Ugle, drove to Ms Websdale's home unit. When they arrived, they parked next to an ambulance. They saw their mother being removed from the home unit on a stretcher. A police vehicle was also present (ts 428). Ms Ugle said that at the time Ms Websdale was in a relationship with the appellant. When Ms Ugle spoke to the appellant on 9 March 2016 at the home unit, he smelt of alcohol and was slurring his words (ts 428). Ms Ugle said that her sister, Courtney, said to the appellant 'what the fuck did you do?'. The appellant replied 'I did nothing. It was her'. Ms Ugle said she asked the appellant 'what happened?'. The appellant said 'I did nothing. It was her. She was taking all those pills again'. He then added 'Nah, nah, we - we took two shots' (ts 429). Ms Ugle said that she had seen Ms Websdale and the appellant together on two previous occasions, once in Midland and once in Bunbury. At those times she did not see any arguments or any violence between them (ts 430). The last time Ms Ugle had seen Ms Websdale before 9 March 2016 was in late February 2016 when Ms Ugle and her sister, Skye Ugle, had dinner at Ms Websdale's home unit. The appellant was present on that occasion. Both Ms Websdale and the appellant were sober and Ms Websdale appeared to be 'really happy' (ts 430). Ms Ugle was unaware of Ms Websdale's medical history (ts 431).
Skye Ugle was a State witness at the trial. At the time of the trial Ms Ugle was aged 23. She had never seen her mother, Ms Websdale, take drugs (ts 440). However, she was aware that her mother had been admitted to hospital on 'maybe three or four' occasions, one of which was for an overdose of heroin and the others were for overdoses of prescription medication (ts 440). Ms Ugle visited Ms Websdale during February 2016 and at the beginning of March 2016. The last time she visited her was 3 March 2016. Ms Ugle said that at this time her mother was 'really healthy' and 'things were going really good for her' (ts 442). Ms Websdale had obtained a job. Ms Ugle recalled that Ms Websdale and the appellant were 'snappy with each other and very short' (ts 442). Although she did not see her mother take drugs, there were times when Ms Ugle suspected that her mother had been using drugs. The suspicion was based on Ms Websdale's behaviour; in particular, Ms Websdale was 'reserved' and there was a lack of eye contact and communication (ts 444). According to Ms Ugle, her mother was not impulsive. Ms Ugle said she saw clipseal bags, tourniquets and cannabis smoking pipes at her mother's home unit, but no drugs (ts 445).
Courtney Ugle was a State witness at the trial. At the time of the trial Ms Ugle was aged 21. She was employed as a field officer at South Metro Youth Link Community Services (ts 432 - 433). Ms Ugle arrived at her mother's home unit at about 2.30 pm on 9 March 2016. When she arrived an ambulance and police officers were in attendance. Ms Ugle said that her mother and the appellant had been 'on-and-off' partners for about eight to ten years. When she alighted from her vehicle at the home unit, she said to the appellant 'what the fuck did you do?'. The appellant replied 'she was taking those pills again'. Ms Ugle said she was unaware of any medication her mother was taking. The appellant attempted to comfort Ms Ugle by putting his arm around her. She said 'don't fucking touch me'. The appellant replied 'I didn't do anything' (ts 434). According to Ms Ugle, the appellant smelt of alcohol; in particular, a strong smell of bourbon (ts 435). Ms Ugle said that her sister, Maddison, was with her when she spoke to the appellant. Ms Ugle recalled seeing her cousin, Craig Websdale, at her mother's home unit. He lived in another unit in the block. Ms Ugle also recalled seeing another Aboriginal man whom she had never seen before. This other man was wearing a basketball guernsey. Ms Ugle gave evidence that on a number of occasions when she saw her mother prior to the incident, Ms Websdale appeared to be 'quite normal' and did not seem to be under the influence of alcohol or drugs. Ms Ugle was aware, however, that her mother had attempted suicide by taking an overdose of medication in 2015. She did not know the kind of drug her mother had taken. Ms Ugle was also aware that her mother had attempted to take her own life on several other occasions (ts 437 - 438). However, Ms Ugle said that her mother's condition had improved over 2015 as a whole, despite her attempts at suicide (ts 438).
Senior Constable Christopher Sanders was a State witness at the trial. He arrived at Ms Websdale's home unit at about 2.00 pm on 9 March 2006. Constable Sanders entered the home unit through the front door. He went to the rear courtyard. At that stage the appellant was not in the rear courtyard (ts 463).
Constable Sanders had two conversations with the appellant. The first conversation occurred at the front of the property (ts 466). About 30 minutes after the first conversation, Constable Sanders made a record of the conversation in his notebook (ts 455). No witnesses were present during the first conversation. The second conversation occurred in the rear courtyard. Witnesses were present during the second conversation.
During the first conversation, Constable Sanders asked the appellant what had happened. He replied 'I didn't do anything'. Constable Sanders then said to the appellant 'I didn't say you did. Can you tell me what happened to her?'. He replied 'she hung herself'. Constable Sanders asked 'what with?'. He did not reply. The appellant's manner was loud, confrontational and angry (ts 456).
Constable Sanders was shown a bundle of photographs taken at Ms Websdale's home unit. One photograph depicted a brown rope close to the door of the courtyard. Another photograph also showed the rope.
During the second conversation, Constable Sanders asked the appellant 'where did you find her?'. The appellant replied 'out here' in a vague manner. Constable Sanders asked 'what did she put around her neck?'. The appellant said 'a rope'. Constable Sanders asked 'where is it?'. The appellant replied 'you won't find it'. Constable Sanders asked 'what do you mean we won't find it?'. The appellant said 'you won't find it'. Constable Sanders asked 'what was she hanging from?'. The appellant said 'I don't know. She may have jumped out of a window'. As the appellant made that statement, he looked upstairs to the windows on the second storey. Constable Sanders also looked in that direction. He saw that all of the windows were closed (ts 457 - 458). Constable Sanders noticed rubbish that had been left behind by the ambulance officers. He also noticed a rope that was partially covered by some of the rubbish. The rope was close to a green door in the courtyard (ts 458). Constable Sanders pointed to the rope and asked the appellant 'is that, is that the rope there'. The appellant replied 'yes, that is it. I made that rope in Fremantle and have had it for years. I use it to carry my swag or bag' (ts 460). Constable Sanders said that he could not recall whether the appellant had said 'swag' or 'bag' (ts 460). The appellant said on a number of occasions that he 'didn't touch her', he 'didn't hurt her' and he 'didn't do anything' (ts 461).
Constable Sanders said that he did not recall the appellant 'stinking of alcohol' or slurring his words (ts 469). However, he did recall thinking that the appellant was under the influence of 'something' due to his behaviour (ts 471). Defence counsel questioned Constable Sanders about the reliability of his notes. Constable Sanders maintained that his notes were accurate. He said that if he was uncertain about any part of the appellant's answers he referred to the uncertainty in his notes.
Constable Sanders said that the appellant was cautioned, arrested and given his rights under the Criminal Investigation Act 2006 (WA) by another police officer in the driveway. The appellant was then placed in the back of a police van and taken away (ts 478).
At the trial, the State relied upon Constable Sanders' evidence that the appellant said that Ms Websdale 'may have jumped out of a window' as a deliberate lie which the appellant had told because of a realisation of guilt and a fear of the truth. The trial judge gave conventional directions (ts 1084 - 1088) in relation to the alleged lie in accordance with Edwards v The Queen.[16] The appellant does not complain about the directions.
Senior Constable Kyne Salt was a State witness at the trial. He arrived at Ms Websdale's home unit at about 2.00 pm on 9 March 2006. When he arrived there was an ambulance parked in the driveway. Senior Constable Sanders was standing at the front of the property speaking with the appellant. When Constable Salt arrived, he spoke with Constable Sanders in the presence of the appellant. The appellant said to Constable Salt 'look at this fucking cunt. What's he doing here, this Asian cunt'. The appellant sounded aggressive (ts 480). Constable Salt went to the rear courtyard and saw three or four paramedics attempting to resuscitate Ms Websdale. She was lying on her back. After the rear courtyard was declared to be a protected forensic area, the appellant was ushered to the front of the property (ts 489). At the front of the property, the appellant was aggressive and attempted to fight Constable Salt. The appellant removed his pants and flicked them towards Constable Salt's face (ts 499).
At the trial a voir dire examination was conducted in relation to the timing of some of the events dealt with by Constable Salt in his witness statement. During the voir dire, Constable Salt said the appellant started to become a suspect after a conversation between the appellant and a neighbour, when the neighbour said 'I respect you, Uncle, but I don't know what happened here'. At that point it appeared that the appellant and the neighbour were about to become violent, and they were therefore separated by the police (ts 486). Constable Salt said he had been at the property for about 10 or 15 minutes when the appellant was declared to be a suspect (ts 487). Constable Salt could not recall whether the appellant smelt of alcohol.
Constable Salt did not make any notes during the incident. Constable Salt gave evidence that he asked the appellant for Ms Websdale's name, which he provided. He also asked the appellant for Ms Websdale's date of birth. The appellant became agitated and told Constable Salt to 'fuck off' (ts 494 - 495). Constable Salt said that the appellant attempted to fight him. The appellant told Constable Salt to remove his accoutrement belt. The appellant then cracked his knuckles and threw his fists up in the air (ts 499). Constable Salt's assessment of the appellant at the time was that he was affected either by alcohol or drugs. This assessment was based on the appellant being 'up and down', crying and then becoming aggressive, swearing and being 'just bizarre' (ts 500).
Constable Salt gave evidence that the appellant claimed that Ms Websdale had 'hung herself' and that she had done similar things previously (ts 497). Constable Sanders asked the appellant where the rope was. The appellant pointed at a swag and said that the rope wrapped around the swag was similar in appearance. Constable Salt could not find any rope in the rear courtyard (ts 497). Constable Salt gave evidence that the appellant said that Ms Websdale had jumped out of the window. Constable Salt investigated that possibility. He went upstairs in the home unit and noticed that all of the windows were covered in sheets (ts 498). When he was asked whether any of the windows were open, Constable Salt replied 'not that I recall' (ts 498, 506). Constable Salt was shown a photograph of the front of the property which showed that a flyscreen at the front appeared to be detached from the window and that there was a window open upstairs. Constable Salt explained that he had looked at the windows 'at the back'. He could not see from the photograph whether the window was open or not (ts 506 - 507). Constable Salt said in cross-examination that he could not be 100% certain that the appellant had used the words 'I don't know. She may have' in relation to Ms Websdale having jumped out the window (ts 508).
The evidence given during the voir dire examination was not before the jury.
Senior Constable David Fagan was a State witness at the trial. He arrived at Ms Websdale's home unit at about 2.14 pm on 9 March 2016. When he arrived, Constable Sanders, Constable Salt and two other police constables were present. Two ambulances were also present. Constable Fagan entered the home unit with Constable Sanders, Constable Salt and the appellant. Constable Fagan went into the courtyard to ascertain whether it was possible that there had been a hanging. He could not identify anything that indicated there might have been a hanging, except for a small piece of 'yellowish rope' on the ground. There was no rope tied to any point in the courtyard. There was no obvious place in the courtyard for a hanging (ts 510).
While Constable Fagan was in the courtyard, another man came into the home unit. Constable Fagan heard raised voices from inside the property. He heard the appellant say to the other man words to the effect 'I didn't do anything to her' (ts 510). Constable Fagan intervened between the two men. He took the other man outside of the home unit. The other man said his name was 'Rowan Farrell' (ts 511). After he spoke to some people (notably, Stephen Cooke and Craig Websdale) who lived in neighbouring home units, Constable Fagan recommended to one of the other police officers that they arrest the appellant on suspicion that he had committed unlawful grievous bodily harm and that they declare a protected forensic area (ts 511). Constable Fagan did not speak to the appellant.
Defence counsel mentioned to Constable Fagan in cross-examination that there was a clothesline and a tree in the rear courtyard. Constable Fagan was asked whether he had had a 'good look' at the clothesline, to which he replied 'not in detail, no', and whether he had examined the tree, to which he had replied that he did not look at it. Constable Fagan said that he had observed the courtyard as a whole and nothing had 'jumped out to him' as an obvious hanging point (ts 513). He looked in the courtyard for something to indicate that a hanging had taken place, but he did not observe anything which supported that theory (ts 514). Constable Fagan did not recall anything having been placed over the picket gate in the courtyard (ts 518).
Robert Wilson was a State witness at the trial. As at 9 March 2016 he lived in a home unit in the block of units where Ms Websdale resided. Mr Wilson gave evidence that about a week before 9 March 2016 he saw the appellant and Ms Websdale outside their home unit. The appellant approached Ms Websdale, who was walking backwards towards the fence and had her hands in front of her. Mr Wilson said that the appellant was standing over Ms Websdale as she was walking backwards. He was making 'horrible faces' at her until she 'went back and hit the fence, slid down on her arse onto the ground' (ts 521 - 522). Mr Wilson also said that the appellant had been holding his palms up and over the top of Ms Websdale. Ms Websdale remained on the ground for about 15 - 20 minutes. She then went to the kerb near her front door and sat there for a couple of hours (ts 521 - 522). Mr Wilson said he did not think that he needed to call the police regarding this incident.
Detective Senior Constable Mark Walker was a State witness at the trial. He attended at Ms Websdale's home unit on 9 March 2016. Later he returned to the Midland Police Station. Detective Walker was present when Detective Ingram conducted a preliminary breath test on the appellant. The test measured the appellant's blood alcohol level at 0.150% (ts 530).
Detective Sergeant Cameron Blaine was a State witness at the trial. He was the senior investigating officer in relation to the death of Ms Websdale. On 10 March 2016, he and Detective Rickerby questioned the appellant in an electronically recorded interview. Detective Blaine said that the appellant was 'up-front' about the fact that he was a 'recovering alcoholic' and that on the day in question he had been drinking and using drugs (ts 550). Detective Blaine had spoken to the forensic pathologist, Dr Moss, and was aware that there was a needle puncture mark in Ms Websdale's neck (ts 554). Detective Blaine knew that users of drugs inject their drugs intravenously and that often they need to apply a tourniquet to produce the veins. He knew that long-term drug users inject drugs in many parts of their bodies (ts 555). Detective Blaine did not make any enquiries about Ms Websdale with the Bunbury Mental Health Service before he interviewed the appellant (ts 556). He was not aware before he interviewed the appellant that Ms Websdale's admissions to hospital were in connection with attempts at self-harm (ts 558). He did not personally make enquiries to ascertain whether or not Ms Websdale had purchased methylamphetamine at a location and from persons specified by the appellant to the police, but other police officers had made those enquiries (ts 557). Detective Blaine agreed that the appellant had recounted that his relationship with Ms Websdale was 'love/hate' from time to time and that there had been periods when they argued. The appellant had also told Detective Blaine that in his view Ms Websdale's family had 'treated her like shit' (ts 556).
Craig Websdale was a State witness at the trial. As at 9 March 2016 he lived in a home unit in the block of units where Ms Websdale resided. On the afternoon in question Mr Ryan-Farrell ran from Ms Websdale's home unit and said 'your auntie' to Mr Websdale. Mr Ryan-Farrell appeared to Mr Websdale to be 'shooken up' (ts 623).
Mr Websdale went with Mr Ryan-Farrell to Ms Websdale's home unit. They saw the appellant in a passageway and all of them went to the rear courtyard. Mr Websdale saw Ms Websdale's body, face up, about 1 m from the sliding door with her head towards the clothesline. Mr Websdale said he saw the appellant attempt to wake Ms Websdale by nudging her with his foot and shaking her. Mr Websdale then went to the front of the home unit and called an ambulance.
Mr Websdale agreed in cross-examination that when he went to Ms Websdale's home unit the appellant appeared to be distressed and upset (ts 634). Mr Websdale acknowledged that he did not tell the police that the appellant was initially standing next to Ms Websdale or that he could not remember at that time because 'it happened so fast' (ts 636 - 637). Mr Websdale also acknowledged that in his witness statement he did not mention that the appellant had nudged Ms Websdale while she was lying on the ground (ts 637 - 638).
Senior Constable Derek Pitcher was a State witness at the trial. He made a comparison of some of the photographs of the injuries to Ms Websdale's neck with a number of cords and similar items recovered from Ms Websdale's home unit. However, he did not compare those injuries with 'the rope' or 'one of the ropes' depicted in some of the photographs.
Constable Pitcher said that when items of the kind he examined are placed under strain, the dimensions of the items may change. Also, he said that when skin is under force, it may tend to curve and leave a distorted impression (ts 660).
Constable Pitcher gave evidence that the ligature mark on Ms Websdale's neck did not display any kind of pattern or anything unique which permitted a proper comparison with the various cords and similar items recovered from her home unit. He was confined in his comparisons to an assessment of and comments on the dimensions. He could not draw any conclusions (ts 652).
Constable Pitcher acknowledged in cross-examination that he could not include or exclude any of the items he had examined as having possibly caused the injuries. Each of them may or may not have done so (ts 658).
Constable Pitcher said there were no tests he could have done to determine the elasticity of any ropes or cables because there were too many unknown variables, such as how much force was applied. Similarly, it was not possible for him to determine the elasticity of skin because the skin elasticity of each person is different (ts 662).
A toxicology report dated 13 May 2016 from ChemCentre was read into evidence, by consent, as part of the State's case. The report was tendered and became an exhibit. The report stated that amitriptyline nortriptyline and quetiapine were detected in Ms Websdale's blood. Diazepam, methylamphetamine and amphetamine were also detected. Alcohol was not detected.
A PathWest DNA report was read into evidence, by consent, as part of the State's case. A single source DNA profile was recovered from a syringe located in a plastic basket on the bed in the bedroom. The single source profile matched Ms Websdale's DNA profile. A single source DNA profile was recovered from a syringe in a locked blue metal box on the kitchen table. The single source profile matched the appellant's DNA profile. A mixed source DNA profile was recovered from a syringe located in a black bag under the laundry sink. The mixed source profile included Ms Websdale's DNA profile. The appellant was excluded. A mixed source DNA profile was recovered from a syringe on the top left-hand shelf of a kitchen cabinet. The mixed source profile included Ms Websdale's DNA profile and the appellant's DNA profile. A single source DNA profile was recovered from a syringe on the top shelf of the wardrobe in the bedroom. The single source profile matched Ms Websdale's DNA profile.
Dr Moss was a State witness at the trial. He conducted a post-mortem examination of Ms Websdale.
On 9 March 2016, Dr Moss conducted a preliminary inspection of Ms Websdale's body at the emergency department of the St John of God Hospital, Midland.
Dr Moss said that two things stood out when he conducted the preliminary inspection. First, there appeared to be a linear ligature mark on Ms Websdale's neck. Secondly, there were florid pinpoint haemorrhages or petechiae to her eyes and other parts of her face. Dr Moss also noticed that there was a needle puncture mark on one side of Ms Websdale's neck and there was evidence of medical intervention (ts 702 - 703). Dr Moss ascertained from medical staff at the emergency department of the hospital that the needle mark was not caused by them (ts 703).
On 11 March 2016, Dr Moss conducted a post-mortem examination.
On examination of Ms Websdale's head and neck, Dr Moss found florid fine and course petechiae in both the whites of her eyes and in the surrounding tissue within the inner aspect of the eyelids. There were also some petechiae to the upper eyelids on both sides (ts 704 - 705). He also noticed further petechiae in the under surface of Ms Websdale's chin, her jawline and in the inner aspect of her mouth along the gum line. The ligature mark was across the front of her neck, in line with the angle of the jaw, and about 14 cm in length. The ligature mark was essentially one main line, but on the right side of the neck there were two lines (ts 706 - 707). The mark was below the laryngeal prominence, and angled downwards on the right-hand side (ts 707). There were two small abrasions on the left side of the neck just above the ligature mark and a further small abrasion on the right side of the neck just beyond the end of the ligature mark (ts 708 - 709). There was a needle puncture mark on the left side of the neck (ts 703, 711). Dr Moss said there were two possible areas of scalp bruising above Ms Websdale's right ear. Each of them was 1 cm in diameter. They were very subtle, faint areas of discolouration (ts 711). Dr Moss also said that there was subcutaneous bruising overlying the middle of Ms Websdale's left jaw. On the left side of her neck there was a large area of soft tissue haemorrhage possibly associated with the needle puncture mark (ts 711 - 712).
Dr Moss found an area of bruising within Ms Websdale's neck on the thyrohyoid muscle which connects the larynx to the hyoid bone. However, he did not find any fracturing of or haemorrhage to the hyoid bone structure. The hyoid bone can be damaged by strangulation, hanging or any kind of pressure to the neck. However, this kind of damage is more common with manual strangulation (ts 713).
There were superficial abrasions to both arms and hands and also to both legs (ts 714 - 715). There were fractured ribs consistent with CPR attempts (ts 717). The superficial abrasions and bruising on her arms and legs were 'non-specific' and could have come from 'lots of different things'. Dr Moss could not draw any conclusions about them (ts 718). Ms Websdale's fingers and fingernails revealed no recent injury, such as torn or damaged fingernails (ts 718). There was nothing of significance and no evidence of disease in Ms Websdale's internal organs. There was congestion in her lungs, consistent with the administration of CPR (ts 719 - 723). There were no long bone fractures and there was no evidence of any skull, spinal or pelvic fracture (ts 724).
As to the application of the ligature, Dr Moss gave evidence as follows:

(a) The appearance of a ligature mark is not particularly helpful in determining whether the person has hanged themselves or whether the person has been strangled by another person (ts 728).

(b) Petechiae can be present in both fatal and non-fatal strangulations, and do not indicate whether or not the person was conscious (ts 729 - 730).

(c) Petechiae are an indicator of a mechanical issue relating to blood flow, where there are variations in blood pressure. They are more common in cases of manual strangulation, but do appear in cases of ligature strangulation as well (ts 730 - 731).

(d) If a person applies a ligature to his or her own neck, simply by holding something around the neck, Dr Moss would expect that, as the blood (and therefore the oxygen) supply to the brain was interrupted, the person would lose consciousness and cease to hold the ligature around the neck. However, it would be different if the person wrapped something around his or her neck and tied it or used something that did not rely upon his or her own activity because in those circumstances the pressure would be maintained if there was a loss of consciousness (ts 730 - 731).

(e) A person could apply a ligature to his or her own neck and cause a ligature mark without losing consciousness (ts 731).

(f) A ligature mark can be caused deliberately or accidentally (ts 734).

(g) The presence of a ligature mark does not of itself necessarily mean that the application of a ligature was causative of death (ts 734, 753). It is an indicator that there had been a ligature applied to the neck (ts 753).

Dr Moss noted that in cases of hanging as distinct from strangulation, where a person's body has been suspended from a rope, a different pattern of ligature marks would tend to be seen compared to those apparent where the person had been strangled (ts 728).
Dr Moss said it was plausible that if a person applied a ligature to his or her own neck and then injected themselves in the neck, that action might potentially cause a ligature mark of the kind Dr Moss saw on Ms Websdale's neck (ts 731).
Dr Moss accepted there was a possibility that the marks he had observed on Ms Websdale at different times could have changed between observations (ts 733). Dr Moss accepted that it is common practice to examine a victim's fingernails because they may reveal signs of an altercation that may or may not fit the known circumstances of the matter. However, in the present case, Dr Moss did not observe any injuries to Ms Websdale's fingernails (ts 734 - 736). The needle puncture mark in Ms Websdale's neck could not, as far as Dr Moss was aware, be explained by any of the medical procedures that were applied to her. Dr Moss said that as drug users damage common veins they inject themselves increasingly in more unusual places. He accepted that the needle puncture mark to Ms Websdale's neck could not be accounted for (ts 737 - 739). The mark could have been made between minutes and hours before her death. Dr Moss was not informed or aware of any of Ms Websdale's drug habits or overdoses. However, Dr Moss said that the receipt of that information would not have had any impact on the assessment he made (ts 742 - 744).
As to the cause of Ms Websdale's death, Dr Moss gave evidence as follows:

(a) Ligature compression of Ms Websdale's neck was the major component of the cause of her death and methylamphetamine was a contributory factor. By 'contributory', Dr Moss meant that it contributed to her death, but was not a part of the major component (ts 746 - 747).

(b) Methylamphetamine can kill people. However, it is very difficult to decide, from the numbers in a toxicology report, whether methylamphetamine has killed someone or not because there is a big overlap between the range of levels of methylamphetamine that kill people and the range that does not kill people. It is very difficult to tell what level might be fatal in an individual case. The level of methylamphetamine in Ms Websdale's case was not extraordinarily high. It was the sort of level that would be expected in people who use 'recreational' methylamphetamine and survive. If methylamphetamine had been the sole cause of Ms Websdale's death, there would not necessarily have been any clinical finding that would have supported it (ts 748 - 749).

(c) In different circumstances, if the deceased person had Ms Websdale's level of methylamphetamine and there was absolutely no other explanation for death, then that level of methylamphetamine could be a cause of death. In such a case 'that would be the most likely cause of death. It's ... in that case ... almost a diagnosis of exclusion, really' (ts 751).

(d) Ms Websdale's level of methylamphetamine could be fatal, but in Dr Moss' experience 'that level of methylamphetamine would not normally be associated with death. And I would say that survival would probably be the norm with that level of meth' (ts 751 - 752).

(e) The application of a ligature can cause death because it results in the compression of the structures of the neck, which in turn occludes the major blood vessels that supply and drain blood to and from the brain. As a result, the brain is starved of blood. However, blood congestion in the brain is also caused. As blood carries oxygen to the brain, the lack of blood flow results in the brain being starved of oxygen. If the airways are compressed, then the whole body becomes starved of oxygen as well. Ligature compression of the neck can therefore result in hypoxia or ischaemia (ts 726 - 727).

(f) Hypoxia and ischaemia are fatal if they occur for a sufficient duration. An occlusion of the blood supply or a restriction of oxygen or both, if not for a significant duration, may result in a loss of consciousness only and not be fatal (ts 753).

(g) The application of a ligature to the neck could occlude blood supply or restrict oxygen to the point where the person loses oxygen without necessarily dying (ts 753 - 754).

(h) A finding as to the cause of a death says nothing about whether the death was self-inflicted (ts 755).

(i) Fractures or damage to the bone and cartilage structures in the neck are less common in the case of ligature strangulation and more common in the case of manual strangulation. There were no fractures observed in Ms Websdale's case. However, that does not give any indication as to the level of force that was applied in her case (ts 757 -758).

(j) It is possible for there to be significant compression of the neck without significant underlying bone or cartilage injury. The absence of such injury does not mean that the ligature compression was not significant (ts 759).

In my experience or based on my experience the findings in this case really leave us with three potential explanations for [Ms Websdale's death]. One is methylamphetamine on its own; one is ligature compression of the neck on its own and one is a combination of the two. [Ms Websdale had] no other significant drugs on board. She [had] no significant natural disease that would explain death and she [had] no other injuries. So realistically those are the three possibilities. And based on my experience to exclude the ligature compression when we have a significant ligature mark, we've got florid petechiae, we've got a small amount of bruising in the neck, to write that off as being completely coincidental, which you would have to do for it to be methylamphetamine on its own, I think is unreasonable ... I think to say that it was ligature compression of the neck on its own would be clearly saying that [methylamphetamine] is therefore irrelevant and, in my experience, the methylamphetamine may well be irrelevant. Having said that, my opinion is that this is a combination of the two because in my experience with these findings and in these circumstances that is what I think is the most likely explanation for death (ts 762 - 763).

(l) Methylamphetamine effect can cause death indirectly (such as causing a person to be in a car accident or doing something dangerous while under the influence), or it can cause death directly usually in one of two ways: by causing brain haemorrhage or by causing a cardiac arrhythmia. A brain haemorrhage would be evident on autopsy but a cardiac arrhythmia would not leave any discernible trace on autopsy, unless the patient also had underlying heart disease, in which case it may (ts 763 - 764, 771).

(m) The other drugs recorded in the toxicology report were not relevant to Ms Websdale's death (ts 768).

Professor David Joyce was a State witness at the trial. He is a physician and the head of clinical pharmacology and toxicology at QEII Medical Centre.
Professor Joyce said that there was nothing in the materials he had been given as to the quantity or frequency of Ms Websdale's customary methylamphetamine use. However, people who use methylamphetamine intraveneously have usually been taking it for a while (ts 776).
Professor Joyce said that, based on the materials he had been given (which included Mr Ryan-Farrell's witness statement and the police statement of material facts), there were no obvious signs that Ms Websdale was intoxicated with methylamphetamine; for example, looking agitated, moving a lot, talking a lot or behaving strangely (ts 776 - 777). Nor were there any signs that Ms Websdale had suffered an epileptic seizure, which can sometimes be caused by methylamphetamine (ts 777).
Professor Joyce said that methylamphetamine can cause death in several ways, including by raising blood pressure to a level that causes an artery to burst (ts 779). There was no evidence from the post-mortem examination that this had occurred with Ms Websdale.
Methylamphetamine can also cause death by cardiac arrhythmia. This occurrence generally leaves no evidence that is discoverable in a post-mortem examination (ts 779 - 780, 785).
The most common manner in which methylamphetamine can kill a person is that the drug draws the person into violence or risk-taking; for example, being involved in a fight or crashing their vehicle. Methylamphetamine users can also experience suicidal thoughts and consequently kill themselves. Approximately a quarter of methylamphetamine related deaths are suicides. The most common cause of death is not because the drug has poisoned the user, but because it alters the mind and makes the user involve him or herself in activities which kill them (ts 784).
When a person consumes a large quantity of methylamphetamine the person may experience a strong sense of hostility and a 'scrambled mind'. If the quantity is sufficiently large, the heart will become seriously stressed and the person's body temperature will rise. The brain will convulse and the person can die. The condition is called amphetamine-induced delirium (ts 784 - 785).
Professor Joyce said that a person using methylamphetamine may experience heart problems over many hours, but the heart does not stop beating. He said that this possibility was not consistent with the period of Ms Websdale's use of the drug and the time of her death (ts 785).
Sometimes people who take methylamphetamine and do not experience any other conditions may 'simply fall dead'. However, this is not something within Professor Joyce's experience. The cases that Professor Joyce has dealt with have always had an antecedent history which indicates the pathway to death or near death that the person has taken (ts 785).
Another pathway by which methylamphetamine can cause death is called serotonergic syndrome. Professor Joyce decided that this syndrome did not apply in the present case because it takes many hours to run its course (ts 785).
Professor Joyce accepted that the concentrations of drugs revealed by the ChemCentre report may not necessarily have been the exact concentrations that were in Ms Websdale's body at the time of death. Usually, the post-mortem results are higher than the concentrations at the time of death (ts 781 - 782).
According to Professor Joyce, a person who is taking a particular antidepressant, namely amitriptyline, in combination with methylamphetamine, may suffer from increased blood pressure (ts 786 - 787). Professor Joyce was of the opinion that because Ms Websdale had amitriptyline in her system, she was 'a bit more sensitive' to 'bad outcomes' caused by the interaction of the antidepressant with methylamphetamine (ts 787).
In Professor Joyce's opinion, there was not a strong likelihood that the methylamphetamine detected in Ms Websdale's body at the post-mortem was from drugs she had used prior to the incident in question (ts 788). The blood sample taken from Ms Websdale which was tested for methylamphetamine was collected from Ms Websdale's body within hours of death. The reading of 0.5 mg per litre would have been 'pretty close' to the real concentration at the time she died (ts 789).
Professor Joyce accepted that the concentration of methylamphetamine in Ms Websdale's body, namely 0.5 mg per litre, was within the lethal range. However, the lethal range is quite broad and people can die at different concentrations. He had seen people survive a concentration six times that of Ms Websdale (ts 790 - 791).
According to Professor Joyce, regular users of methylamphetamine develop a tolerance and require increasing amounts to obtain the same effect (ts 790 - 791).
Professor Joyce gave evidence that, during times of extreme stress or fear, the body uses its sympathetic stimulation, which accelerates the heart to the point where it becomes chaotic. Extreme stress or fear of this kind may arise, for example, because the person has been tied up or restrained or handcuffed and he or she is fighting the restraint. Extreme stress or fear can induce physiological responses in people which put stress on the heart and may induce a chaotic heart rhythm which results in death. Professor Joyce said that methylamphetamine may exacerbate this response and make the person less likely to survive if a ligature is applied to the neck (ts 792 - 793).
Professor Joyce said that where a person is under extreme stress, including where the person has a ligature applied to his or her neck, there are two main physiological effects. The first is the 'violence of their endeavour' against the restraint. The ligature itself would result in the person increasing their use of oxygen supplies and this would lead to hypoxia which, in itself, would make the heart more likely to go into a chaotic rhythm. The second is that the person would be in a state of extreme arousal and fear. This would result in sympathetic stimulation of the nervous system, which would accelerate the heart to the point where it becomes chaotic. Methylamphetamine itself causes an accelerated heartbeat, so 'one would infer that there are simply three things [having] the same adverse effects on the heart, and that's why the methylamphetamine might add to the other two and make it more likely that somebody would die' (ts 793 - 794).
According to Professor Joyce, injecting into your own neck veins seems like a technically fairly difficult thing to do (ts 794).
Professor Joyce said that if the ligature contributed to Ms Websdale's death, methylamphetamine would also have been a relevant factor. He said that it was immaterial whether the methylamphetamine was injected into an arm vein, a neck vein or a toe vein because the drug will spread quickly throughout the circulatory system (ts 794).
Professor Joyce said that he had had minimal experience with people who had taken methylamphetamine and 'dropped dead', but accepted that a seizure caused by methylamphetamine which results in a lethal cardiac rhythm may not leave signs that could be observed during an autopsy (ts 799 - 803).
Professor Joyce accepted that the rate of suicide by methylamphetamine users is quite high. He also accepted that a seasoned user of methylamphetamine could die from methylamphetamine toxicity (ts 803, 805).
Professor Joyce agreed that methylamphetamine use combined with physical stress could cause a person's heart rate to increase and could contribute to heart instability. Physical stress of this kind could be caused by a person applying a ligature to his or her own neck (ts 806).
Professor Joyce agreed that the concentration of methylamphetamine in Ms Websdale's blood could have resulted in lethal toxicity (ts 808).
The blood concentration in Ms Websdale's case was not sufficient information for a toxicologist to calculate the initial dose or the time of the dose (ts 815).
Senior Constable Ian Jeffery was a State witness at the trial. It is unnecessary to reproduce the substance of his evidence.
Stephen Cooke was a State witness at the trial. As at 9 March 2016 he lived in a home unit in the block of home units where Ms Websdale resided. Mr Cooke gave evidence that on 9 March 2016 he heard 'Craig' (that is, Craig Websdale) shouting for 'Nicky' to bring him a telephone. Mr Cooke went to the front of Ms Websdale's home unit and gave Craig Websdale his mobile telephone (ts 841 - 842).
Mr Cooke then entered Ms Websdale's home unit and saw her lying on the ground in the rear courtyard. She appeared lifeless. The appellant was yelling and screaming. He said to Mr Cooke 'what do you want?', 'who the fuck are you?' and 'what are you doing in the house?' (ts 842 - 843).
Mr Cooke recalled hearing the appellant tell Craig Websdale that 'the dogs down the road gave her a hot shot' (ts 843).
Mr Cooke said that when the paramedics arrived at Ms Websdale's home unit the appellant became very hostile and wanted to fight (ts 843).
Mr Cooke had seen arguments between Ms Websdale and the appellant 'all the time' and had heard 'stuff getting thrown around' (ts 847). Mr Cooke had seen an incident in which the appellant had grabbed Ms Websdale's arm on the day before Ms Websdale died (ts 848). Mr Cooke said 'it was just, like, pretty much one continuous argument between them' (ts 851).
Professor Duflou was a defence witness at the trial. He is a forensic pathologist. His current research includes research into deaths caused by illicit drug use.
Professor Duflou did not examine Ms Websdale's body. He was not involved in the investigation of her death. Professor Duflou said that the autopsy carried out by Dr Moss was performed to a high standard and was comprehensively documented.
Professor Duflou was not surprised by Dr Moss' initial finding that the cause of Ms Websdale's death was 'undetermined pending investigation'.
Professor Duflou was of the opinion that death or survival following neck compression has very similar appearances to death or survival following methylamphetamine administration (ts 869).
Professor Duflou gave evidence that in his view the cause of Ms Websdale's death was undetermined (ts 869). It was possible that her death could have been caused by neck compression or methylamphetamine or a combination of both, but each scenario was merely a possibility (ts 869 - 870). It could not be determined whether the injuries to Ms Websdale's neck were self-inflicted or inflicted by a third party.
When asked whether he agreed with Dr Moss' opinion that ligature compression of the neck was the primary cause of Ms Websdale's death with methylamphetamine effect being a significant contributing factor, Professor Duflou said 'I think it's entirely possible' (ts 869).
According to Professor Duflou, methylamphetamine toxicity alone can cause death. There has been a growing incidence of death caused by methylamphetamine alone (ts 875).
Professor Duflou gave evidence that death by an illicit drug overdose will not reveal anything specific in an autopsy apart from an abnormal drug level in the blood (ts 877). He also gave evidence that when methylamphetamine is involved, there is a very high rate of hanging as a means of suicide in women as distinct from men. Professor Duflou said that it was possible for someone to apply a ligature to his or her own neck and, with a needle, to inject methylamphetamine into the neck (ts 881).
Professor Duflou reiterated in cross-examination that, in his opinion, Ms Websdale's death could have been caused solely by methylamphetamine or solely by the application of the ligature or by a combination of both of those factors. However, Professor Duflou went on to say that he did not think the injury to Ms Websdale's neck would have been caused by her applying a tourniquet in order to inject methylamphetamine. He said '[the ligature that caused the injury to Ms Websdale's neck] certainly wouldn't be highly effective as a tourniquet' (ts 887).
Professor Duflou agreed that if a rope had caused Ms Websdale's death, someone else would have to have removed it, because Ms Websdale would not have been able to do so herself if she was unconscious or dying or dead. The exception to this proposition would be if the rope broke or disconnected in some way (ts 888).
Professor Duflou also agreed that the presence of methylamphetamine may compromise a person's ability to survive ligature compression, especially if there is the possibility of hypoxia causing arrhythmia (ts 895).
The prosecutor tendered the appellant's video record of interview with police as part of the State's case. During the interview the appellant said:

(a) The appellant and Ms Websdale had been in an 'on-and-off' relationship for nearly 10 years (7).

(b) He had been living at Ms Websdale's home unit for two weeks before her death. They had been living apart before that time for eight months (26).

(c) On the day of the incident Ms Websdale had bought some methylamphetamine with money he had given her (18). When she returned home with the methylamphetamine, Ms Websdale went upstairs on her own and took some of the drug (18).

(d) Ms Websdale then came downstairs and went into the rear courtyard. She closed the glass door. He joined her in the courtyard. They both smoked a cigarette. He asked her whether she was okay because she was not as talkative as usual. She replied that she was okay (18 - 19).

(e) The appellant went inside and resumed cooking some food. He heard a thud from outside but did not take any notice. He thought that his neighbour had made the noise (66 - 67). Shortly after, he walked into the rear courtyard and found Ms Websdale lying on the ground. She was mumbling. A cone was on the table. He said she had a bad habit of 'having cones and just, liked relaxing'. He told her that he would finish cooking (18 - 19).

(f) The appellant went inside the home unit again. After about 10 minutes he returned to the courtyard and saw that Ms Websdale's lips were blue. He screamed and broke down crying. He endeavoured to give her mouth to mouth resuscitation, wet her with a hose and told her cousin to call an ambulance (19).

(g) Ms Websdale had attempted suicide three times previously (19).

(h) The appellant uses amphetamines once a fortnight. The impact on him of the drug depends on its quality (41 - 42).

(i) On the day in question, Ms Websdale injected herself with methylamphetamine in the bedroom (49 - 50). The appellant knew that she had injected herself on this occasion because 'she always comes downstairs and lights up a smoke straightaway'. She did that on the day in question (51).

(j) It was normal for Ms Websdale to inject her methylamphetamine in the bedroom because she did not like injecting herself in front of anyone (55). On the day in question, Ms Websdale remained in the bedroom for 'probably just over 10 minutes' and during that time the appellant began to cook. No-one else was present in the home unit at that time (62 - 63).

(k) When Ms Websdale came downstairs after injecting herself in the bedroom, she went into the rear courtyard, sat at the table in the courtyard and had a cigarette. At the time, the appellant was cooking in the kitchen. He could not see her in the courtyard because the curtains were closed (64, 66). Ms Websdale was in the rear courtyard for 'a good while, half an hour' (66).

(l) The appellant went outside to the front of the home unit to see if his mother had arrived. When he came back inside the home unit, he heard a 'bang' (67).

(m) When the appellant saw Ms Websdale lying on the ground in the rear courtyard, he thought she was 'just stoned'. She had a habit of doing that. She would lie on the ground (81). Ms Websdale regularly had a 'shot of speed' and then smoked a cone (82). It was not unusual to see her lying on the ground (84 - 85).

(n) When the appellant turned Ms Websdale over, he could see that her eyes were 'kind of open', but 'like someone on [heroin]' (85 - 86).

(o) Ms Websdale had always injected amphetamines into her arm. He had never seen her inject amphetamines into any part of her body apart from her arm (56).

(p) About three years previously, Ms Websdale had asked him about injecting into her neck (56 - 57). Ms Websdale would never have injected into her neck. She was not that 'kind of person' (57).

(q) After he and Ms Websdale had resumed their relationship, they 'couldn't have been any ... happier' (29).

(r) Amphetamines have never made him feel sad or angry (48 - 49).

(s) Amphetamines have never affected him in such a way that he wanted to hurt people (48 - 49).

(t) The appellant could not remember having told the paramedics that Ms Websdale may have jumped out of the window (99). When he opened the door to the rear courtyard, he saw her lying on the ground. He could not remember why he would have said to the ambulance officer that she may have jumped out of the window (100).

(u) Ms Websdale 'wasn't herself' on the day in question (78). Initially, he thought that Ms Websdale had taken 'all her tablets again' because she had attempted suicide on three previous occasions (87). He thought that she had died from 'drugs' (90).

(v) The appellant was more distressed than aggressive when the paramedics arrived (93).

(w) The appellant got the red mark on his face when he fell over a couple of days before Ms Websdale died (94).

(x) Mr Ryan-Farrell might have come to Ms Websdale's home unit, but the appellant had shut the door while he was playing music so he did not know (101). When asked if Mr Ryan-Farrell had come inside Ms Websdale's home unit on the day in question or whether Mr Ryan-Farrell had gone to the shops with him, the appellant said 'no' (105).

(y) When asked if he gave Mr Ryan-Farrell any food on the day in question, the appellant recalled that the appellant had gone to the front door of Ms Websdale's home unit and had seen Mr Ryan-Farrell standing 'a couple of units down'. The appellant offered him some food to try. Mr Ryan-Farrell said that he would take the food to his sister. Mr Ryan-Farrell was outside the home units (103).

(z) The appellant agreed that Mr Ryan-Farrell might have been in the home unit with him and Ms Websdale when Ms Websdale went upstairs to the bedroom to inject her methylamphetamine (110). When the police told the appellant that Mr Ryan-Farrell had said that Ms Websdale had come downstairs and gone into the rear courtyard, and that the appellant had immediately followed her, the appellant said that he went into the courtyard and was talking to and arguing with Ms Websdale. The appellant then clarified that they were 'not arguing, arguing, but having a disagreement, yeah' about the quality of the methylamphetamine. The appellant denied that the argument had got out of hand (110 - 111, 119).

(aa) After the argument 'something was wrong. She just wasn't acting herself'. Ms Websdale kept going on about the drugs. After that, the appellant rolled a cigarette, walked inside, sat down and had a drink (112 - 113).

(bb) The appellant's memory was good, but his head was 'all over the place' (113).

(cc) The appellant could not recall saying anything to anyone about Ms Websdale having a rope around her neck or that she had 'hung herself' (114, 116). When he saw Ms Websdale lying in the rear courtyard, he could not see a rope (117).

(dd) The appellant said 'I don't even know what, if I'd done it or not' and then said 'I loved the woman. Why would I wanna do that to her?' (127). He went on to say 'I don't know what I'm capable of doing ... when I'm under the influence of drugs and alcohol' and 'I just don't remember it and that's the truth. It's just trying to piece things together and it's just not processing' (131).

(ee) The appellant would not go out of his way to kill a person (123).

(ff) Methylamphetamine makes him feel good. It does not bring anger and it does not '[bring] out the devil' (123).

(gg) He was not going to prison for something he had not done (129).

Defence counsel tendered medical records from the Bunbury Hospital in relation to Ms Websdale. The records referred to a number of admissions for drug overdoses, some with suicidal ideation.

The ground of appeal: its merits: counsel for the appellant's concessions and acknowledgements at the hearing of the appeal

At the hearing of the appeal, counsel for the appellant made concessions or acknowledgements as follows:

(a) The State's case at the trial was that the appellant had applied a ligature to Ms Websdale's neck in the courtyard of her home unit with the requisite intent for murder (appeal ts 3).

(b) If the jury was entitled to be satisfied beyond reasonable doubt that:

(i) the appellant had applied a ligature to Ms Websdale's neck; and

(ii) the ligature substantially or significantly contributed to her death,

then the jury was entitled to be satisfied beyond reasonable doubt as to the intent for murder. In other words, a possible verdict of manslaughter was not relevant in the appeal (appeal ts 3).

(c) The State relied upon the appellant's alleged out-of-court statement to Constable Sanders that Ms Websdale may have jumped from an upstairs window of the home unit as an Edwards lie (appeal ts 3).

(d) The jury, by its verdict of guilty, must have rejected the appellant's statements in his video record of interview with police to the extent that those statements were exculpatory or tended to exculpate him (appeal ts 3).

(e) It was open to the jury to find that the appellant had deliberately told the alleged Edwards lie out of a consciousness of guilt of the offence charged (appeal ts 4).

(f) The jury was entitled to accept Mr Ryan-Farrell's evidence as to:

(i) what Mr Ryan-Farrell saw the appellant or Ms Websdale do or not do in the period leading up to or (in the case of the appellant) in the period after her death;

(ii) what Mr Ryan-Farrell heard the appellant or Ms Websdale say and what Mr Ryan-Farrell did not hear the appellant or Ms Websdale say in the period leading up to or (in the case of the appellant) in the period after her death;

(iii) what Mr Ryan-Farrell observed about the appellant's demeanour; and

(iv) the approximate period of time that Mr Ryan-Farrell was or was not at Ms Websdale's home unit in the period leading up to or in the period after her death (appeal ts 4).

(g) The jury was entitled to accept the evidence of the ambulance officers, the police officers and Ms Websdale's daughters as to:

(ii) what they heard the appellant say and what they did not hear the appellant say; and

(iii) what they observed about the appellant's demeanour,

when they were at Ms Websdale's home unit after her death (appeal ts 4).

(h) The jury was entitled to accept the evidence of the witnesses who gave evidence as to the relationship between the appellant and Ms Websdale (appeal ts 5).

(i) It was open to the jury to accept Dr Moss' opinion as to the cause of Ms Websdale's death (appeal ts 5).

(j) The appellant's case at the trial was that Ms Websdale had injected herself in the neck with methylamphetamine while she was in the courtyard (appeal ts 7).

(k) It was open to the jury to find that, shortly before her death and contrary to the appellant's case, Ms Websdale had injected herself with methylamphetamine while she was in the upstairs bedroom of her home unit (appeal ts 6).

(l) It was open to the jury to find that the ligature was applied to Ms Websdale's neck in the courtyard of her home unit (appeal ts 6).

(m) A critical issue at the trial was whether it was Ms Websdale or the appellant who had applied the ligature to her neck. That is, there were two alternatives: either the appellant applied the ligature to Ms Websdale's neck in the courtyard or Ms Websdale applied the ligature to her own neck in the courtyard (appeal ts 6).

(n) There was no evidence at the trial as to how the ligature came to be removed from Ms Websdale's neck in the courtyard (appeal ts 8).

(o) The ambulance officers and the police officers who attended at the scene gave evidence to the effect that, when they arrived, Ms Websdale did not have a ligature around her neck (appeal ts 7 - 8).

(p) The appellant did not say anything, either in his out-of-court statements at Ms Websdale's home unit or in his video recorded interview with police, about having seen a ligature around or having removed a ligature from Ms Websdale's neck (appeal ts 8).

Those concessions or acknowledgements by counsel for the appellant were appropriate. We accept them.

The ground of appeal: its merits: counsel for the appellant's articulation of the appellant's case at the hearing of the appeal

Counsel for the appellant said at the hearing of the appeal that the appellant's case in the appeal was that there were two scenarios, consistent with innocence, as to the cause of Ms Websdale's death. First, contrary to Dr Moss' conclusion, there was a reasonable possibility that Ms Websdale's death was wholly caused by methylamphetamine. Secondly, if, as Dr Moss concluded, ligature compression was the major component of the cause of her death and methylamphetamine was a contributory factor, there was a reasonable possibility that Ms Websdale had accidentally killed herself in the courtyard by applying a ligature to her own neck to make a vein more prominent and by injecting methylamphetamine into that vein (appeal ts 12 - 20).
Counsel for the appellant abandoned at the hearing another scenario as to the cause of Ms Websdale's death, namely that Ms Websdale had died by suicide in the courtyard by applying a ligature to her own neck after she had injected herself with methylamphetamine while she was in the upstairs bedroom of her home unit (appeal ts 15 - 17).
Counsel for the appellant said at the hearing that if this court were to decide that it was open to the jury to be satisfied beyond reasonable doubt that neither of the two scenarios relied upon by counsel for the appellant in the appeal was a reasonable possibility, then the appeal should be dismissed (appeal ts 20).

The ground of appeal: its merits: analysis and conclusions

(a) after examining the trial record and weighing the evidence (notably, the evidence of Mr Ryan-Farrell, Mr O'Neill, Mr Stewart, Constable Sanders, Constable Salt, Constable Fagan, Craig Websdale, Constable Pitcher, Dr Moss, Professor Joyce and Professor Duflou; the toxicology report and the PathWest DNA report; the appellant's alleged out-of-court statements to Mr O'Neill, Mr Stewart, Constable Sanders and Constable Fagan; the appellant's statements in his video recorded interview with police; and the alleged Edwards lie); and

(b) in particular, after examining and weighing the competing evidence,

that the jury was entitled to be satisfied beyond reasonable doubt that:

(d) Ms Websdale did not apply a ligature to her own neck; and

(e) the appellant applied a ligature to Ms Websdale's neck in the rear courtyard of her home unit shortly before her death.

(b) in particular, after examining and weighing the competing evidence,

that it was reasonably open to the jury to conclude that:

(c) the scenario that Ms Websdale's death was caused by methylamphetamine effect alone was not a reasonable possibility; and

(d) the scenario that Ms Websdale's death was caused by ligature compression of the neck combined with methylamphetamine effect was the only reasonable possibility.

As to Ms Websdale having injected herself with methylamphetamine in the upstairs bedroom of her home unit, the jury was entitled:

(a) to accept Mr Ryan-Farrell's evidence to the effect that he saw Ms Websdale go up the stairs of the home unit with one of the packets of methylamphetamine and that, when she came downstairs, he saw Ms Websdale go into the rear courtyard immediately followed by the appellant;

(b) to accept the appellant's statements in his video recorded interview with police to the effect that, on the afternoon in question, Ms Websdale had injected herself with methylamphetamine in the bedroom; it was normal for her to inject methylamphetamine in the bedroom because she did not like injecting herself in front of anyone; the appellant had never seen her inject amphetamines into any part of her body apart from her arm; and she would never have injected into her neck;

(c) to accept Professor Duflou's evidence that the ligature that caused the injury to Ms Websdale's neck would not be highly effective as a tourniquet for the purpose of injecting methylamphetamine;

(d) to find, on the basis of the evidence of Mr Ryan-Farrell and the ambulance officers and the police officers who attended at Ms Websdale's home unit in the aftermath of her death, that when they saw Ms Websdale in the rear courtyard she did not have a ligature around her neck;

(e) to find that a needle and a syringe were not located in the rear courtyard in the aftermath of Ms Websdale's death; and

(f) to find that the evidence did not explain how the needle puncture mark on one side of Ms Websdale's neck was caused.

As to Ms Websdale not having applied a ligature to her own neck, the jury was entitled:

(a) to find, on the basis of the evidence of Dr Moss, that if a person applies a ligature to his or her own neck, simply by holding something around the neck, then as the blood (and therefore the oxygen) supply to the brain is interrupted, the person will lose consciousness and cease to hold the ligature around the neck;

(b) to find, on the basis of the evidence of Mr Ryan-Farrell and the ambulance officers and the police officers who attended at Ms Websdale's home unit in the aftermath of her death, that when they saw Ms Websdale in the rear courtyard she did not have a ligature around her neck;

(c) to accept the evidence of Constable Fagan that there was no obvious place in the rear courtyard for a hanging and to find that Ms Websdale did not attach one end of a ligature to a hanging point in the rear courtyard and then apply the other end of the ligature to her neck;

(d) to find that there was no evidence that Ms Websdale had hanged herself, other than the appellant's alleged out-of-court statements to Mr O'Neill, Mr Stewart, Constable Sanders and Constable Fagan;

(e) to find, on the basis of the evidence of Ms Websdale's daughters and her medical records, that although she had previously attempted suicide by drug overdose, she had never attempted suicide by hanging;

(f) to find, on the basis of the evidence of Mr Ryan-Farrell and Professor Joyce, that there were no obvious signs that Ms Websdale was intoxicated with methylamphetamine (that is, she was not looking agitated, moving a lot, talking a lot or behaving strangely) during the period immediately preceding her death; and

(g) to find, on the basis of the evidence of Ms Websdale's daughters, that Ms Websdale had appeared to be in reasonably good mental health during the weeks before her death.

As to the appellant having applied a ligature to Ms Websdale's neck in the rear courtyard of her home unit shortly before her death, the jury was entitled:

(a) to find that there were two alternatives: either the appellant applied the ligature to Ms Websdale's neck in the rear courtyard or Ms Websdale applied the ligature to her own neck in the courtyard;

(b) to reject, for the reasons we have given, the scenario that Ms Websdale had applied the ligature to her own neck;

(c) to find, on the basis on the evidence of Mr Ryan-Farrell, that during the period between Ms Websdale entering the rear courtyard and her becoming unresponsive, the only people in the rear courtyard were Ms Websdale and the appellant;

(d) to find that the absence of any evidence that Ms Websdale had used her fingers or fingernails to attempt to remove the ligature could be explained on the basis that she was in a drug-affected state, having injected methylamphetamine in her bedroom shortly before entering the rear courtyard, and on the basis that the absence of defensive injuries did not necessarily mean that she had not taken any defensive action;

(e) to find that the appellant had told the alleged Edwards lie out of a consciousness of guilt and a fear of the truth in that the substance of the lie (namely, that Ms Websdale may have jumped out of a window) was falsified by all of the objective evidence and, in all the circumstances, it should be inferred that the lie was deliberate and could not be explained by any hypothesis consistent with innocence;

(f) to find, on the basis of Constable Sanders' evidence that the appellant had told him, in effect, that the police would not find the rope which the appellant alleged Ms Websdale had put around her neck, that the appellant had in some way disposed of the ligature that had been applied to Ms Websdale's neck and that was, on Dr Moss' evidence, the major component of the cause of her death;

(g) to find, on the basis of the evidence of Mr Wilson and Mr Cooke, that Ms Websdale and the appellant had argued frequently, at least during the days preceding her death;

(h) to find, on the basis of the evidence of Mr Ryan-Farrell, Detective Walker and the ambulance officers and the police officers who attended at Ms Websdale's home unit in the aftermath of her death, that the appellant was intoxicated by a combination of methylamphetamine and alcohol during the period immediately preceding Ms Websdale's death;

(i) to find, on the basis of the evidence of Mr Ryan-Farrell, Mr Websdale and the ambulance officers and the police officers who attended at Ms Websdale's home unit in the aftermath of her death, that the appellant's emotional state was erratic; notably, that he was sometimes angry and aggressive and at other times distressed and at other times calm; and

(j) to find that the appellant's statements in his video recorded interview with police that 'I don't even know what, if I'd done it or not' (127) and 'I don't know what I'm capable of doing ... when I'm under the influence of drugs and alcohol' (131) and 'I just don't remember it and that's the truth. It's just trying to piece things together and it's just not processing' (131) were true.

(a) when he examined Ms Websdale's head and neck, during the post-mortem examination, he found a linear ligature mark across the front of her neck, in line with the angle of the jaw, and about 14 cm in length; florid pinpoint haemorrhages or petechiae to her eyes and other parts of her face; and a small amount of bruising in her neck;

(b) ligature compression of Ms Websdale's neck was the major component of the cause of her death and methylamphetamine was a contributory factor;

(c) the level of methylamphetamine in Ms Websdale's case was not extraordinarily high and was a level that would be expected in people who use 'recreational' methylamphetamine and survive;

(d) although Ms Websdale's level of methylamphetamine could be fatal, that level would not normally be associated with death;

(e) there were no fractures to the bone and cartilage structures in Ms Websdale's neck, but fractures of that nature are less common in the case of ligature strangulation than in the case of manual strangulation;

(f) it is possible for there to be significant ligature compression of the neck without significant underlying bone or cartilage injury, and the absence of such injury does not mean that the ligature compression was not significant; and

(g) the exclusion of ligature compression as a cause of Ms Websdale's death would be unreasonable because there was a significant ligature mark across her neck, florid petechiae and a small amount of bruising in the neck.

By contrast with Dr Moss' evidence, Professor Duflou said that:

(a) the cause of Ms Websdale's death was undetermined; and

(b) it was possible that Ms Websdale's death could have been caused by neck compression or methylamphetamine or a combination of both, but each scenario was merely a possibility.

(a) based on the materials he had been given (which included Mr Ryan-Farrell's witness statement and the police statement of material facts), there were no obvious signs that Ms Websdale was intoxicated with methylamphetamine;

(b) the concentration of methylamphetamine in Ms Websdale's body was within the lethal range, but the lethal range is quite broad and people can die at different concentrations;

(d) regular users of methylamphetamine develop a tolerance and require increasing amounts to obtain the same effect; and

(e) if a ligature contributed to Ms Websdale's death, methylamphetamine would also have been a relevant factor.

It is apparent from statements made by the appellant in his video recorded interview with police that Ms Websdale used methylamphetamine regularly.
In our opinion, after evaluating and weighing the competing evidence of Dr Moss and Professor Duflou, in the context of Professor Joyce's evidence and the trial record as a whole, the jury was entitled:

(a) to accept the evidence of Dr Moss that ligature compression of Ms Websdale's neck was the major component of the cause of her death and methylamphetamine was a contributory factor;

(b) to accept the evidence of Dr Moss that it would be unreasonable to exclude ligature compression as a cause of Ms Websdale's death;

(d) to reject the evidence of Professor Duflou that it was possible that Ms Websdale's death could have been caused by methylamphetamine effect alone; and

(e) to be satisfied beyond reasonable doubt that ligature compression of Ms Websdale's neck substantially or significantly contributed to her death.

Also, in our opinion, after evaluating and weighing the appellant's alleged out-of-court statements to Mr O'Neill, Mr Stewart, Constable Sanders and Constable Fagan and the appellant's statements in his video recorded interview with police, in the context of the trial record as a whole, the jury was entitled to reject the appellant's statements to the extent that they:

(a) exculpated, or tended to exculpate, the appellant from criminal responsibility for Ms Websdale's death as alleged by the State at the trial; or

(b) created a doubt, or tended to create a doubt, about his guilt.

A jury, acting reasonably, was not precluded by the state of the evidence from convicting the appellant on the charge of murder. A jury, acting reasonably, was entitled:

(a) to accept the evidence of Mr Ryan-Farrell, Mr O'Neill, Mr Stewart, Ms Websdale's daughters, Constable Sanders, Constable Salt, Constable Fagan, Mr Wilson, Detective Walker, Craig Websdale, Constable Pitcher, Dr Moss, Professor Joyce and Mr Cooke in all material respects;

(b) to accept the evidence embodied in the toxicology report and the PathWest DNA report in all material respects;

(d) to reject the opinions of Professor Duflou in all material respects;

(f) to find, consistently with the State's case, that the appellant applied the ligature to Ms Websdale's neck in a fit of anger and while in an intoxicated state.

A jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of the evidence as a whole, that the appellant applied a ligature to Ms Websdale's neck in the courtyard of her home unit, that the application of the ligature substantially or significantly contributed to her death and that the appellant applied the ligature to her neck with the requisite intent for murder.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on the charge of murder. The verdict of guilty was not unreasonable. It was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the charge of murder or as to the correctness of his conviction on that charge. It would not be dangerous, in the circumstances, to permit the verdict of guilty of murder to stand.
The ground of appeal is without merit.

The ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347 [74] (McLure JA).

Arulthilakan v The Queen

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Judgment (216 paragraphs)

COUZENS -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 54 (5 April 2019)