(2013) 236 A Crim R 255
Lane v R [2013] NSWCCA 317
(2013) 241 A Crim R 321
Lane v R [2017] NSWCCA 46
M v The Queen (1994) 181 CLR 487
[1994] HCA 63
Question of Law Reserved No 1 of 2022 [2023] SASCA 109
R v Cornelissen
Source
Original judgment source is linked above.
Catchwords
[2020] HCA 15
Flanagan v R [2013] NSWCCA 320(2013) 236 A Crim R 255
Lane v R [2013] NSWCCA 317(2013) 241 A Crim R 321
Lane v R [2017] NSWCCA 46
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Question of Law Reserved No 1 of 2022 [2023] SASCA 109
R v CornelissenR v Sutton [2004] NSWCCA 449
R v Heaney (2009) 22 VR 164(2009) 194 A Crim R 562
R v Holzer [1968] VR 481
R v Lavender (2005) 222 CLR 67[2005] HCA 37
R v McCarthy (2015) 124 SASR 190[2015] SASCFC 177
Royall v The Queen (1991) 172 CLR 378[1991] HCA 27
Ryan v The Queen (1967) 121 CLR 205[1967] HCA 2
SKA v The Queen (2011) 243 CLR 400[2011] HCA 13
Stevens v The Queen (2005) 227 CLR 319[2005] HCA 65
The Queen v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
Williams v Smith (1960) 103 CLR 539[1960] HCA 22
Wilson v the Queen (1992) 174 CLR 313[1992] HCA 31
Zandipour v The Queen (2017) 53 VR 256
Judgment (8 paragraphs)
[1]
JUDGMENT
DAVIES J: On 21 March 2011 Valmai Jane Birch, known as Jane, was found dead at her apartment in Woods Avenue, Woonona. She was found upside down in a wheelie bin with one of her legs tied to the back of her buttocks and with her head immersed in water.
The applicant, David Bagster, was charged with her manslaughter, and stood trial before Judge Haesler SC and a jury from 2 to 27 May 2022. On 27 May 2022 the jury returned a verdict of guilty. On 30 September 2022 Judge Haesler sentenced the applicant to imprisonment for 11 years and 6 months commencing 1 October 2019 and expiring 31 May 2031 with a non-parole period of 8 years expiring 30 September 2027.
He now seeks leave to appeal against his conviction on one ground only, that the verdict was not supported by the evidence and is unreasonable. There is no appeal against the sentence.
[2]
Background
The deceased was born on 14 May 1976. From the age of 17 years she became involved in drug use. At the time of her death she was using multiple illicit drugs including cannabis, heroin and amphetamines, and prescription medication including Xanax and Valium.
The deceased had never been employed but she had a long history of prostitution. At the time of her death she was receiving a Centrelink benefit. She had also inherited money from the sale of her parents' home following their deaths. She received this money by way of periodic payments into her bank account. She did not have control over the money, and would have to have been drug-free for five years to access the whole amount. She used what she did receive on her drug habit.
The applicant was born in December 1966. From about May 2010 until the deceased's death the applicant and the deceased were involved in an intimate relationship which was described as being on again/off again. During the relationship each of them used illicit drugs.
From 27 October 2010 the deceased had signed a lease for a government housing unit in Woods Avenue, Woonona where she remained living until her death. At that time the applicant lived at a unit in Corrimal but he would stay with the deceased regularly.
The deceased was last seen alive on 9 March 2011. On that day she was seen in the company of the applicant at 7.00am and again between 10.00 and 10.25am when she caught a train with the applicant. That was the last time the deceased and the applicant were seen together. Later that morning she was seen at various businesses in Woonona.
At approximately 3pm on 9 March 2011 the deceased was seen to be drug-affected outside her unit. At that time a neighbour assisted her inside her unit. About 15-30 minutes later, the applicant was seen outside the deceased's unit. He was seen to open the gate, knock at the front door and look through the windows. The last time that the deceased's mobile phone service was used was at 11:16pm on 9 March 2011.
On 10 March 2011, the applicant was seen by a neighbour, Patrick Sagigi, at the deceased's unit, knocking on her front door and touching the doors and windows before walking away.
On 12 March 2011 between about 11.30pm and midnight Mr Sagigi heard a lady scream. The sound came from the unit below him, which was the deceased's unit. When he looked out his window he saw the sensor light at the front of the deceased's unit had been activated.
Between 15 March 2011 and 21 March 2011 residents of 1-5 Woods Avenue, Woonona noticed a smell emanating from the complex.
On 21 March 2011 the applicant spoke to a neighbour of the deceased and said that he was concerned about the deceased because he had not seen her for two or three weeks. He complained to a neighbour about the smell coming from the deceased's unit. The applicant wrote a note for the deceased in the presence of the neighbour.
On 21 March 2011 police forcibly entered the deceased's unit. They found her body face down in a wheelie bin in the bathroom. A shower hose was in the wheelie bin. The top half of her body was submerged in water. There was a piece of material around her right ankle which was tied to a separate piece of material that had been tied around her waist. As a result, her right heel was positioned against the underside of her right buttock. She was wearing the identical dress to that shown in the CCTV recording of her earlier on 9 March 2011 in Wollongong. A fan in the lounge room was operating, as was the exhaust fan in the kitchen.
The deceased had been issued several sets of keys for the unit. When police found her body, a set of keys was tied around her neck. It was usual for her to carry her keys around her neck. The other sets of keys have never been located.
A forensic examination revealed a DNA profile matching the applicant's DNA was found on the handles of the wheelie bin and on the ceiling fan switch in the lounge room of the unit. A fingerprint belonging to the applicant was located on the wheelie bin under the rim.
On 23 and 24 March 2011, an autopsy performed by Dr Johan Duflou concluded that the deceased died of an undetermined cause and in an undetermined manner. Dr Duflou suggested four possible causes of death, as well as a combination of two or more of these possibilities:
(1) Positional asphyxia: The deceased may have been placed in the bin alive, and then been unable to breathe due to the restraint and position she was in within the bin. This possibility arose from how the deceased's body was found, and not from anything arising from the autopsy.
(2) Drowning: The deceased may have been placed in the bin alive, and then drowned in the water in the bottom of the bin. Dr Duflou considered it was likely the deceased would need to have been at least partially incapacitated for drowning to be effective in that way. Unconsciousness, or exhaustion from having been in the bin for a long time while alive, were suggested examples of such incapacitation. As with positional asphyxia, the possibility of drowning arose from how the deceased's body was found, and not from anything arising from the autopsy.
(3) Neck compression: Dr Duflou agreed that there was no evidence that positively pointed to this as a possible cause of death. Dr Duflou could not positively include or exclude this possibility, given the flexible laryngeal structure that younger women tend to have. He considered that lethal neck compression was unlikely without injury, although the state of decomposition of the body could have masked any injury that may have been present.
(4) Drug overdose: No blood was obtained from the body due to decomposition. Liver and bile samples were tested, though these were a poor substitute for blood. Dr Duflou considered the levels of morphine in the liver and bile were such that it was possible the deceased died of an overdose of morphine (the substance present in the body after heroin is ingested). Dr Duflou repeatedly confirmed he could not say whether the deceased did, or did not, die by overdose; and if death was caused by overdose, Dr Duflou could not say whether that occurred before or after the deceased came to be in the bin.
Dr Judith Perl, a forensic pharmacologist, gave this evidence in relation to the morphine found in the deceased's liver and bile:
It is not possible to determine whether or not the deceased had used an overdose of heroin or whether she had been impaired by any heroin used just prior to her death. From the levels available, it is not even possible to estimate how long before death the drugs may have been used.
…
A heroin user who suffers some respiratory depression may recover without any assistance or intervention on one occasion, and yet may suffer fatal consequences from the same dose on another occasion due to other factors. Such factors can include the presence of other depressant drugs such as alcohol, which can enhance the respiratory depression due to heroin or morphine, or some form of respiratory illness, for example, asthma, bronchitis, or even respiratory infection, which can compromise respiratory function.
However, she also gave this evidence:
A post-mortem bile sample taken from the deceased was found to have present morphine total 7 milligrams per litre, but Codeine total was not detected. A post-mortem liver sample was found to have present morphine total 0.22 milligrams per kilogram, but Codeine total was not detected. …
The significance of it. On occasions when someone has used a very recent high dose of heroin, Codeine was often a contaminant of illicit heroin, and so you would expect to find some Codeine, and also there may be some Codeine ingested. So, I don't know - if Codeine was present, I wouldn't know whether it was definitely due to Codeine ingestion, or whether it was a - sorry, a contaminant of the heroin. But in this case, there was no Codeine detected, which would suggest to me that the dose was not very recent.
The deceased's as well as the applicant's fingerprints were found at the scene. The applicant's right middle fingerprint was found in two places on the underside of the outer rim or lip on the side of the wheelie bin. His fingerprints were also found on a letter he had written (exhibit 11) and on a note written by a Mr Tom Roberts. Mr Roberts had been introduced to the deceased by either Rachel Shadlow or Renee Micallef in May 2010. Mr Roberts was a person who sought women for sex in exchange for money. The evidence suggested that Mr Roberts' note had been left by him on or near the outside of the front door.
From 22 February 2011 for about a week, Mr Roberts and Ms Shadlow had visited the deceased's home every day and knocked on the door. Each time there was no answer, although there were noises from inside the unit such as from the TV or a tap. The blinds were closed, and the windows were locked. Although Mr Roberts initially told the police he had never been inside the deceased's unit, he eventually admitted that he had been inside the unit on one occasion. Mr Roberts died before the first trial but information he provided in interviews with police formed part of a statement of agreed facts at the trial.
The applicant's DNA was found in various places in the deceased's home, including on the note written by Mr Roberts, on the letter the applicant had written to the deceased (exhibit 11), in a semen stain on a sheet on the deceased's bed, on the handle of the wheelie bin, and on the ceiling fan switch in the lounge room area.
The DNA of Adam Dellosta was also found in a semen stain on a sheet on the deceased's bed. Mr Dellosta said that in 2011 the deceased had purchased an amount of "Ice" for him, and they had consumed it at her house before having sex. He said that while he was at the deceased's house, a man knocked on the door. The deceased told Mr Dellosta that it was her ex-partner and that she didn't want anything to do with him. Mr Dellosta said he told the man to leave and threatened to call the police.
The DNA of a man called Pece Bedolovski was found on a cigarette butt found in the deceased's unit.
The applicant was not charged until 2019. Between 2011 and 2014 he co-operated with police and participated in three records of interview where he denied killing the deceased and said that he did not know how she died.
The applicant was originally tried before his Honour Judge Haesler SC and a jury in February 2021. However, on 4 March 2021 the jury was discharged as they were unable to reach a verdict.
The second trial, from which the present appeal is brought, took place again before Judge Haesler SC and a jury in May 2022. At this trial the Crown adduced evidence from a cell mate of the applicant (Witness A), to whom it was alleged the applicant had made admissions after the first trial but before the second trial commenced.
Witness A shared a cell with the applicant from 7 October 2021 until about 2 November 2021. He gave evidence that he had asked the applicant if the applicant had 'knocked her' and the applicant had said, "Yes. I put her in a wheelie bin", and "I left her upside down in a wheelie bin", and gestured to convey about a foot of water. The applicant told Witness A, "I brought the bin inside". Witness A asked if the deceased was alive when the applicant put her in the bin, and the applicant nodded.
There were challenges to Witness A's credibility. He was endeavouring on a number of occasions to get bail and there was evidence that he had wrapped a bandage around his head and blackened his eyes to make it look as if he had black eyes when he appeared before the Magistrate on the audio-visual link.
Witness A also agreed also that he wrote to one Magistrate who heard a bail application telling him about the assistance he (Witness A) had given to the police in the applicant's case.
Witness A also took notes of what he said the applicant told him, but he was challenged about alterations made to those notes which gave the words the effect of admissions by the applicant.
The Crown also led evidence from Teena Coster who had known the deceased for about five years and the applicant for ten years. Both of them used to buy marijuana from Ms Coster's sister, Leonie Andy.
Ms Coster gave evidence that she saw the applicant in late March or early April 2011 at Leonie Andy's house. Ms Andy asked the applicant where the deceased was and he replied, "Haven't you heard? She's in the wheelie bin". Ms Andy said, "What did you say?" and the applicant said, "We got on the pills last night. I bashed her in the bathtub. I couldn't get her out, so I lifted her into the wheelie bin". The evidence from Leonie Andy was only that the applicant said to her and Ms Coster, "Did you hear about Jane? She was found dead in a wheelie bin".
The Crown case relied on two tendencies. The first was a tendency of the applicant to be physically violent towards the deceased. The second tendency was to tie the deceased up.
There was evidence of a lot of arguments between the deceased and the applicant. They had been evicted from a flat they lived in around August 2010 because of the disruption that their arguments caused.
On an occasion in 2010 the deceased was seen by an acquaintance, Leon Boeyen, in Wollongong. She was crying and upset, and had injuries to her face. She told Mr Boeyen that the applicant had bashed her, tied her up and gagged her for four hours. She claimed the applicant had nearly killed her, but she did not want Mr Boeyen or her ex-boyfriend, Tony Barbetto, a friend of Mr Boeyen's, to do anything about it, and she did not want to go to the police.
Another of the deceased's acquaintances, Rachel Williams, gave evidence that by May 2010, the deceased often had bruises on her face and body. The deceased complained the applicant was "fucking hogtying me", and showed Ms Williams marks on her wrists, upper thighs and ankles. She had new bruises on top of old ones. On another occasion in May 2010, Ms Williams saw the deceased with two black eyes, a swollen nose, and was unrecognisable.
On 16 August 2010 at about 9:30am, the applicant contacted police to say that a person called Khaled Khaled had tried to stab him with a knife during an argument over drugs. When police attended, they found the deceased was present. They did not observe any signs of injury to her. Later that day, a neighbour of the deceased rang the police at the deceased's request to report a domestic assault on the deceased by the applicant. The neighbour heard yelling and observed redness and swelling to the deceased's face. She was drug affected. The neighbour observed the deceased to leave her house and walk along the street in the direction of Mr Khaled's unit in Mangerton.
At about 11:00am that day, the police attended Mr Khaled's unit to assist the NSW Sheriff to evict him. When Mr Khaled opened the front door, the deceased walked out of a bedroom behind another man, Barry Harrison. She was pulling up her jeans from her knees to her waist. She had injuries to her face and neck. These injuries were photographed. She was drug affected. She gave police a notebook statement saying that the applicant had assaulted her between the time the police attended her home earlier that morning and the time the police attended Mr Khaled's unit. She said that the applicant had wrapped a pair of green pants around her neck such that she had trouble breathing. Mr Khaled denied causing the injuries to the deceased.
Between August and October 2010 the deceased and the applicant lived at the Unanderra Hotel. They often argued. On one occasion a neighbour, Marea King, heard the applicant screaming at the deceased in abusive language. After the neighbour saw the applicant leave she went to the deceased's door. When the deceased opened the door the neighbour saw that her right eye was black and swollen, and the deceased said that the applicant had hit her. Ms King's son, Michael Mills, also heard the applicant yell at the deceased and threaten her. He said she often had bruises.
Rachel Williams gave evidence that in October 2010 the applicant made a number of calls to her and offered the cost of a taxi ride and some drugs if she agreed to participate in a threesome. The applicant suggested that bondage was involved. Ms Williams agreed, and she caught a taxi to the deceased's unit in Woonona where her body was found. When she went inside she saw the deceased was tied up. She had a rope around each ankle going to her wrist. Her feet were purple as if the circulation to her ankles had been cut off. She had blood on her face and her hair was matted. Ms Williams left. When she next saw the deceased she asked her what that was about and the deceased said, "it's not me, it's Dave, either ignore him or get what you want from him". Shortly after that she saw the deceased at the methadone clinic and she had fresh bruises to her face and body and bruising to both of her wrists.
Shortly before Christmas 2010, the deceased was seen by an acquaintance, Joanne Nagy, in Wollongong. She had injuries to her face, and told Ms Nagy that the applicant had caused them.
Angela Pagett saw the deceased in Wollongong Mall amphitheatre in January 2011. The deceased was crying. She said the applicant had bashed her and tied her up.
Shane Powter, a former flatmate of the deceased, gave evidence that a few weeks after she moved into the property in Woods Avenue, the deceased told him that the applicant was bashing her and following her around.
One of the deceased's neighbours at Cotterill Avenue, Christopher Grindle, gave evidence that in January or February 2011 the deceased came to his house. She had bruising to her face around her eyes. She told him that the applicant had beaten her up and slapped her around. She also told him that the applicant had tied her up and gagged her in the house for a week and it had something to do with getting her money.
A friend of the deceased, Leonie Andy, gave evidence that in January 2011 the deceased told her that she and the applicant had an argument in the taxi and that he had tried to push her out of the taxi. She gave evidence in February 2011 that the deceased and the applicant came to her place to buy cannabis. Ms Andy saw that the deceased had bruises all over her body, on her wrists, arms and upper thighs. The deceased also told Ms Andy that the other day she woke up and she was hogtied. She had been asleep and the applicant hogtied her whilst she was asleep and left her like that for five hours. The deceased told Ms Andy that she thought it had happened because she took the applicant's pills.
[3]
Submissions
The applicant submitted that it was it was not reasonably open for the jury to be satisfied of his guilt beyond reasonable doubt. The nature and quality of the evidence adduced in the Crown case was not sufficient to eliminate a reasonable doubt about his guilt, because his guilt was not the only rational inference to be drawn from the established facts. There were reasonable hypotheses other than the guilt of the applicant.
The applicant submitted that there were three fundamental difficulties with the case put against him. First, the manner and cause of the deceased's death could not be determined so as to exclude the possibility that she died because of a drug overdose. The applicant submitted that the deceased had a long history of drug addiction and abuse dating back to when she was a teenager in the early to mid-1990s. She was a polysubstance drug user. Less than three weeks before she died, she had overdosed on heroin. Two days after that, she was again in possession of drugs in Kings Cross and in a heavily drug affected state.
On 9 March 2011, she was observed to be heavily drug affected outside her home with her body described by one of her neighbours as appearing to be "lifeless". She could not get back into her unit unaided. She was not seen alive again after that time.
Given that context, the applicant submitted that the expert evidence of Dr Duflou and Dr Perl rendered a heroin overdose a distinctly possible cause of death. If it was reasonably possible that the deceased died of a heroin overdose, it follows that she may have died not because of an act by another person. Further, the time of her death could not be determined. It was somewhere between 3:00pm on 9 March and 15 March 2011.
Secondly, if the deceased's death was caused by the criminal act or acts of another person, the evidence did not permit a finding on what the act or acts causing death were. The Crown case elided the cause of the deceased's death and the circumstances in which her body was found. As for the cause of the deceased's death, each of the reasonably possible scenarios identified by the trial judge for the jury had to be eliminated. Those matters were:
(a) An unknown person or persons were responsible for tying her up, her death, and placing her in the wheelie bin;
(b) The deceased died from a drug overdose and after her death unknown people tied her up and put her in the bin;
(c) The deceased died from undetected but natural causes, and unknown persons, or the applicant were responsible for tying her up and putting her in the bin;
(d) An unknown person or persons were responsible for tying her up and her death, and after her death the applicant placed her in the wheelie bin; and
(e) The deceased died from an unknown but natural cause or a drug overdose unconnected with her being tied up, and after her death others or the applicant put her in the wheelie bin.
[4]
Legal principles
The principles to be applied where the ground of appeal asserts an unreasonable verdict are well-known and may be briefly stated. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson & Toohey JJ said at 492-493:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as "unjust or unsafe", or "dangerous or unsafe". In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(citations omitted)
In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 French CJ, Gummow and Kiefel JJ said:
The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
(citations omitted)
[5]
The act causing death
At the commencement of his opening address, the Crown Prosecutor said:
She could not tie herself up in that manner and put herself in the bin. She did not put herself in the bin and put water in the wheelie bin before or during after being inside the wheelie bin. Someone must have been responsible for putting her in there. The Crown case is that the person who tied her up and put her in the wheelie bin was Mr Bagster and that it was Mr Bagster who caused her death by an unlawful and dangerous act.
…There are no eyewitnesses to her death who say they saw Mr Bagster unlawfully kill Jane and how he unlawfully killed her.
At the conclusion of his closing address, the Crown Prosecutor spoke of the possibilities that might have led to the deceased's death. These included that she died from a drug overdose and that subsequently someone tied her up and put her in the wheelie bin, that someone else had caused her death but the applicant put her in the wheelie bin subsequently, and the deceased dying from unknown but natural causes and the applicant putting her in the wheelie bin. The Crown Prosecutor then went on to say:
Now, tying up and placing in the bin could cause positional asphyxiation or neck compression with the addition of water to the bin, being drowning. The causes of death include a combination of drug overdose. The fact that there was blood on the bathroom floor indicative on (sic) injury, shows an unlawful act that is an assault, and the placing in the bin with water add to that danger.
…
It is the Crown case that sometime after 3pm on 9 March 2011 when Jane was last seen alive, and prior to 21 March 2011 when the police found her dead body, Mr Bagster tied up Jane, placed her face down in the wheelie bin and filled it with water.
It is not clear whether Jane was dead or alive when the water was added to the wheelie bin. If Jane was alive, then the placing of Jane who was tied up face down in the wheelie bin and adding water, are either by themselves or in combination the unlawful and dangerous act relied upon by the Crown which caused the death of Jane. However, the Crown accepts that it is reasonably possible that Jane was already dead when the water was added to the bin, and the addition of the water was a crude method of concealing the smell of the corpse.
In this event, the Crown relies upon the extreme and callous circumstances of the disposal of Jane's corpse, together with all the other evidence including the contrived "Dear Jane" note and his history of violence towards Jane to prove that the manner in which Jane died was not from some innocent misadventure or a drug overdose, but as a result of an unlawful and dangerous act towards her on the part of Mr Bagster.
[6]
Was the verdict unreasonable?
It is next necessary to examine the evidence to consider whether it was open to the jury to find him guilty of manslaughter.
The tendency evidence led by the Crown was very strong. A large number of persons gave evidence of seeing the injuries to the deceased, some of them like Marea King and her son Michael Mills, who lived at the Unanderra Hotel where the deceased lived with the applicant, shortly after they heard arguing and abuse delivered by the applicant towards the deceased. Senior Constable Pavric saw the deceased, by chance, twice on 16 August 2010. The deceased was uninjured when Senior Constable Pavric first saw her, but later that morning after receiving a report that the deceased had been assaulted by the applicant, Senior Constable Pavric observed injuries to the deceased's face and head. Multiple other witnesses gave evidence that the deceased told them, when she had injuries, that the applicant was responsible.
There was evidence from some of the witnesses that the deceased told them, in addition to having been injured by the applicant, that he had tied her up. One of those witnesses, Rachel Williams, saw her tied up when she received a call to go over to the deceased's residence to participate in a threesome with her and the applicant.
The letter referred to as "Dear Jane" letter was a significant piece of circumstantial evidence implicating the applicant in the deceased's death. The Crown's case was that the events described in the letter were the events of 9 March 2011, meaning that the letter would have to have been written after those events. The letter was found inside the deceased's unit in a plastic sleeve with other documents that appeared to be of some importance to the deceased. Four of the five pages of the letter contained the deceased's DNA.
All of that was significant because the applicant said that he did not see the deceased again before her death after he alighted at Bellambi from the train they were travelling on. He said that she went on to Woonona in the train. He said he did not want to be with her when she had been using heroin, and he had met a woman on the train called Bec. He said Bec went back to his place for the night. That was somewhat inconsistent with what is written in the letter and with the evidence of a neighbour that the applicant was trying to access the deceased's unit on the afternoon of 9 March 2011.
[7]
Conclusion
The evidence demonstrates that the deceased died from an unlawful and dangerous act, being the assault, tying up and placing the deceased into the wheelie bin and introducing water into the wheelie bin so that the deceased's head was immersed, and that applicant was the person responsible for that act. On an examination of all of the evidence, I am entirely satisfied that it was open to the jury to find the applicant guilty of the manslaughter of the deceased.
I propose the following orders:
1. Grant leave to appeal.
2. Dismiss the appeal.
WRIGHT J: I have had the considerable advantage of reading in draft the judgments of Davies J and Rigg J. Their Honours have each taken a slightly different approach but reached the same conclusion. As I understand their judgments, their reasoning is consistent and I agree with the reasoning in both judgments and the orders proposed by Davies J. On my independent review of the evidence as a whole, I did not form the view that the jury must have entertained a reasonable doubt as to the guilt of the applicant. My reasons in that regard are substantially reflected in what Davies and Rigg JJ have said so that it is not necessary for me to add anything further.
RIGG J: I have had the significant benefit of reading the reasons of Davies J in draft. Having undertaken my own assessment of the evidence I agree, generally for the reasons provided by Davies J, that it was open to the jury to be satisfied beyond reasonable doubt that the deceased did not die because of a drug overdose (without act or acts of the applicant also significantly contributing to death). This was the first proposition advanced by the applicant, as set out in Davies J's judgment at [48]-[50].
I similarly agree that it was open to the jury to be satisfied beyond reasonable doubt that the five scenarios articulated by the trial judge as requiring exclusion were excluded. This was the second proposition advanced by the applicant, as set out in Davies J's judgment at [51].
There were seven reasons advanced for the applicant to cast doubt on much of the evidence relied on in the Crown case against him, summarised by Davies J above at [54]-[60]. These were essentially directed to the applicant not having been proved to have been involved in causing the death of the deceased. I agree with Davies J that these propositions do not render the verdict unreasonable.
[8]
Amendments
03 February 2025 - Typographical error on cover page
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Decision last updated: 03 February 2025
Thirdly, although the applicant does not concede this, if the evidence could prove that it was an act or acts of the applicant that caused the deceased's death, it remained necessary to identify with precision what that act or those acts were because the jury needed to be satisfied that the act was or acts were intentional, unlawful and dangerous.
The applicant submitted that, apart from those difficulties, there were good reasons to doubt much of the evidence relied on in the Crown case against the applicant.
First, the tendency evidence suffered from several deficiencies. Even if it established the tendencies on the part of the applicant, proof of such tendencies were inherently limited in terms of identifying what act or acts the applicant committed which caused the deceased's death.
Secondly, evidence that the applicant and the deceased were in each other's company earlier on 9 March 2011 was of limited assistance, because the applicant was not the last person to see the deceased alive. He was not present when she was assisted into her unit by her neighbours.
Thirdly, the evidence suggested that the applicant did not have a key to the deceased's unit. There was no evidence he ever entered her unit after 3:00pm on 9 March 2011.
Fourthly, the forensic evidence was utterly equivocal.
Fifthly, evidence of admissions said to have been made by him to Witness A and Teena Coster were incapable of belief. As to Witness A, the credibility of his evidence was substantially affected adversely by the timing of the admissions he claimed had been made to him (following a hung jury and with the applicant's retrial pending), and his self-interested motivation for his cooperation with police. As for Ms Coster's evidence, that stood in stark conflict with what her sister Leonie Andy said which was that all the applicant said was, "Did you hear about Jane? She was found dead in a wheelie bin".
Sixthly, the deceased had been living a complicated existence at the time she died. She was addicted to drugs. The applicant submitted that Khaled Khaled and his brother were exploiting her and supplying her with drugs; Mr Roberts was pursuing her persistently; she was engaging in sex work to support her drug addiction; she had experienced violence during that work in the past, and had engaged in that work inside her unit including with Adam Dellosta. All of this admits of other possible circumstances that may have attended her death and which did not involve the applicant.
Finally, the applicant consistently denied having caused her death in his interviews with the police. Even if he lied about never tying her up or assaulting her, those acts could not prove an act by him which caused the deceased's death.
The Crown submitted that on an independent assessment of the whole of the evidence, it was open to the jury to draw the ultimate inference that guilt was proved to the criminal standard. The Crown pointed to the extent of the evidence from friends and acquaintances of the deceased who had been told by the deceased of the assaults on her by the applicant and of being tied up and detained by him. Most of them saw physical injuries to her face and other places on her body. All of this evidence showed the tendencies of the applicant identified by the Crown.
The Crown pointed to the forensic evidence, the lies amounting to a consciousness of guilty told by the applicant, particularly that he had never been violent towards the deceased, and that he did not see the deceased after he alighted from the train at Bellambi on 9 March 2011, and the statements amounting to admissions to Teena Coster and Witness A.
An issue arose during the course of the appeal about the way the Crown had put its case in relation to the act or acts that had caused the deceased's death. Put shortly, the issue was whether, if it was found that the deceased had died before she was placed in the wheelie bin from whatever cause, the applicant could be found guilty of manslaughter. The Crown accepted, of course, that if there was a reasonable possibility that the deceased had died of a drug overdose or from some other cause unrelated to any act of the applicant, the applicant could not be guilty of manslaughter.
The crucial point was, however, whether he could be guilty of manslaughter if the act carried out by him caused her death before she was placed in the wheelie bin. The issue gave rise to the question of whether a unanimity direction ought to have been sought in accordance with what was said in Lane v R [2017] NSWCCA 46 at [18]-[21]. The question of whether or not a unanimity direction is required in that form has more recently been discussed in a situation more analogous to the present in AKB v R [2024] NSWCCA 169.
The issue had been raised by the Court during argument, and also as a result of the Crown withdrawing a submission that it had left the case to the jury on two alternative bases; first that the applicant assaulted the deceased and tied her up, as a consequence of which she died and he then put her in the bin, or secondly, that she was still alive when put in the bin but died as a result. The parties were given leave to file supplementary submissions addressed to that issue.
The applicant submitted that the Crown had never put the case on that alternative basis, and the trial judge did not leave it to the jury on that basis. The applicant submitted that the trial judge initially introduced the alternative scenario but then withdrew it a little later. The applicant submitted that, if the trial judge had not withdrawn it, it could be assumed that counsel would have asked for a unanimity direction in accordance with Lane.
The applicant submitted that the Crown should be bound by the way the trial was conducted, and it follows that, if it is reasonably possible that the unlawful and dangerous act was done before the deceased was put in the bin, the applicant's conviction should be quashed.
The Crown submitted that defence counsel at the trial did not focus on specific acts causing death. Rather, the defence case was that the Crown had not proved that the applicant was in the unit after 9 March 2011. The Crown case was that the applicant unlawfully killed the deceased sometime after 3.00pm on 9 March 2011. The Crown pointed to what was said by McHugh J in Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, that the jury was entitled to reject the cases of the parties and work out for themselves a view of the case.
In relation to a case depending on circumstantial evidence, in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court said at [46]:
The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v R, Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v R. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v R; see also Thomas v R.
(citations omitted)
In Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15, the High Court said at [55]:
An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.
(citations omitted)
Counsel for the applicant at trial said this in his closing address:
Now, I said I'd focus on the primary issue, and that is whether the accused was involved in the death of Ms Birch, but you may well have noticed that there's a more fundamental issue that's arisen in the evidence before the Court, and that is, how did Ms Birch die? Because it's important that not only must you exclude the possibility that another person was involved, but you also must exclude the possibility that the cause of death may have been related to something that was not substantially contributed by another person or persons.
In his summing up, the trial judge said this:
You must also be satisfied beyond reasonable doubt Mr Bagster caused Ms Birch's death - element 1. This is a question of fact for you to determine. That determination must be unanimous. You do not have to achieve unanimity in your reasons for that conclusion. So, you might all differ on, if you accept the Crown case, which facts you accept, but the ultimate conclusion that Mr Bagster caused the death, must be the unanimous verdict of you all.
The prosecution case is the accused caused Jane's death because of how Mr Bagster assaulted her, including tying her up. As she was so assaulted and tied up, whether he did so before or after he put her in the bin does not matter. He caused her death.
To put it another way, the prosecution must establish beyond reasonable doubt Mr Bagster's unlawful treatment of Jane Birch caused her death. The way they have presented their case is either (a) he assaulted her and tied her up, as a consequence she died and then he put her in the bin; or (b) if she was still alive, his placing her in the bin meant that her death followed as a result of him doing so; either because she's upside down in the bin and that position caused her death or water was placed in the bin and she drowned. And, they focus primarily on proposition (b). But the Crown, as I understand, did not actually put that he tied her up and as a consequence she died because of the nature of the tying up. So, the focus of the prosecution case is - she was alive, he placed her in the bin, meaning that her death followed as a result of him doing so, either because of positional asphyxia or because of the water in the bin and her drowning.
The other matter is a matter that you may consider, because the Crown focused on the alive before they went in the bin, and you might conclude it is not available on the proved facts. But either scenario that the Crown put, if proved beyond reasonable doubt, would result in Mr Bagster being guilty and a conviction.
And you do not have to choose between or be unanimous as to which of these scenarios there was. You have to be unanimous as to Mr Bagster's responsibility for the death, that his act was unlawful and his act was dangerous, but you may disagree as to whether it was positional asphyxia or drowning or some other scenario that you find makes him responsible for the death; that is, he intended to commit the acts, they were unlawful and they were dangerous.
…
The prosecution will have proved David Bagster caused Ms Birch's death if you are satisfied beyond a reasonable doubt that an act of the accused substantially or significantly contributed to the harm suffered by her. It is not sufficient if the act or omission was merely coincidental with her death or was insignificantly connected with it.
…
There can be more than one cause of death arising from the facts before you. You may find that the harm to Jane Birch was as a result of a number of possible causes. You do not have to determine what, if any, was the major or direct cause of that harm. It is sufficient to find beyond reasonable doubt that an act of the accused remained an operating and substantial cause of the harm allegedly suffered by Ms Birch despite any other problems she suffered, such as drug intoxication.
(emphasis added)
A little later on his Honour said this:
As Ms Birch's decomposed body was found with her legs tied at the waist and ankles, face down in water, someone must have been responsible for putting her there. The prosecution case is that that person was the accused and he did this because; either he had previously caused her death, but their principal case is that in doing so, she was still alive and disabled by his tying and as a consequence, she died because of the position she was in, or him subsequently putting water in. Once she was in the bin, and put in the bin by Mr Bagster, death was, effectively, inevitable.
In order to prove this element, they must, accordingly, prove beyond reasonable doubt that no one else was responsible, no one else killed Ms Birch, that she did not die accidentally or by misadventure or by her own hand, such as by a drug overdose alone.
They, therefore, would have to eliminate possible scenarios, and they are only possible scenarios, that: (a) an unknown person or persons were responsible for tying her up, her death, and placing her in the wheelie bin; (b) Ms Birch died from a drug overdose and after her death unknown people tied her up and put her in the bin; (c) Ms Birch died from undetected but natural cause and as yet unknown person or persons, or Mr Bagster, I suppose, were responsible for tying her up and putting her in the bin; (d) an unknown person or persons were responsible for tying her up and her death and after her death Mr Bagster placed her in the wheelie bin; (e) Ms Birch died from an unknown but natural cause or a drug overdose unconnected with her being tied up and after her death others or Mr Bagster put her in the wheelie bin.
They are all available as possible scenarios, but the Crown case is that they can eliminate all other reasonable hypotheses that the accused placed Ms Birch in the bin.
Now, if Mr Bagster placed her in the bin after she died, as I believe the Crown are submitting, he cannot be found guilty of her manslaughter.
Is that right, Mr Crown?
CROWN PROSECUTOR: I missed that last bit.
HIS HONOUR: If he put her in the bin after she died, he found her dead and then put her in the bin?
CROWN PROSECUTOR: Yes.
HIS HONOUR: That is not your case, is it?
CROWN PROSECUTOR: No.
HIS HONOUR: The Crown case is that he tied her up, he placed her in the wheelie bin, head down, where she could not escape, thus resulting in her death from positional asphyxia and/or suffocation, or he tied her up, placed her in the wheelie bin, head down, where she could not escape, and then put water in the bin so she drowned, and they are the two scenarios that the Crown say you would find proved beyond reasonable doubt, and by inference, if either of those were proved beyond reasonable doubt, all the other possible hypotheses that someone could think up fall away and could be disproved.
(emphasis added)
Shortly thereafter, his Honour asked counsel if there was anything to correct, and both counsel said that there was not.
It is apparent from all that counsel and the trial judge said to the jury on the issue, that the principal distinction being drawn was between an act of the applicant that caused the deceased's death on the one hand, and an act independent of the applicant (eg drug overdose or death from some other cause) even if the applicant then placed the deceased's dead body in the wheelie bin. It was those independent causes of death which the jury were told they had to exclude. No distinction was being drawn between acts of the applicant involving the deceased before and after the deceased's body was placed in the bin. To the extent that the Crown submitted in closing that the applicant was guilty by reason of his placing the deceased in the bin when she was still alive, the jury were not bound to adopt that submission: AZ v R [2018] NSWCCA 294 at [182]-[183].
In Williams v Smith (1960) 103 CLR 539; [1960] HCA 65, the High Court said at 545, albeit in a civil jury case:
It was indeed a case in which the very divergent views of the parties might be compared by the jury and they might work out for themselves a view of the case which did not exactly represent what either party said. That is a possibility in such cases as this which every court of appeal must contemplate, and although there is no reason to suppose that is what they did in this case, it should not be excluded from the general view of the court.
In Stevens, McHugh J said at [29], citing the passage in Williams:
A jury is entitled to refuse to accept the cases of the parties and "work out for themselves a view of the case which did not exactly represent what either party said."
In Flanagan v R [2013] NSWCCA 320; (2013) 236 A Crim R 255, this Court said at [82]:
In Stevens v R [2005] HCA 65; 227 CLR 319 McHugh J observed, at [30], that a jury was entitled to refuse to accept the case that the Crown and the defence had respectively advanced and work out for themselves, on the evidence, what had occurred. Whilst a jury cannot take into account a fantastical or far-fetched possibility, nonetheless, it was for the jury to determine what was reasonable in the circumstances in determining whether the Crown had established the guilt of the accused.
It was neither fantastical nor far-fetched that the applicant caused the deceased's death either by assaulting her or by tying her up or both. The blood found in the shower area indicated an injury of some seriousness. The assault and the tying up were the two initial parts of the overall act that concluded with the deceased being placed in the bin and the water put in it, whether the water was put in the bin before or after the deceased died.
It was also not without significance that the third of Dr Duflou's possible causes of death was neck compression. If that was the cause of death, it was highly likely to have occurred before the deceased was placed in the bin.
Nor was a unanimity direction required in relation to death caused by the applicant before the deceased went into the bin and death caused as a result of her being put into the bin.
In AKB, Gleeson JA (with whom Walton J agreed) said:
[66] Whether some form of unanimity direction is required in cases of murder, manslaughter and the like as to the specific act that caused death, directs attention to the alternative pathways or routes to a verdict, the nature and quality of the potential causes of the fatal injury, and the live issues at the conclusion of the trial. The authorities refer to several relevant factors such as were the potential causes of the fatal injury part of one continuous episode, and not discrete acts or events, or were they quite separate or different in nature, and do they raise materially different causes of death or defences on each pathway to a verdict.
[67] In Zandipour at [84], Warren CJ, Weinberg and Kaye JJA said of this distinction in the second type of case in Walsh:
The review of the foregoing authorities reveals that, in cases such as this, the Court has applied the principles stated in Walsh. In particular, where the potential causes of the fatal injury were part of one continuous episode, and were not discrete acts or events, a direction is not required to be given to the jury that it must be unanimously satisfied beyond reasonable doubt as to the precise act that caused death. Such a direction is only necessary where, in the context of the facts, the separate potential causes of death could be described as discrete, whether separated as a matter of time or circumstance. (Emphasis added.)
[68] In Ribbon v The Queen (2019) 134 SASR 328; (2019) 348 FLR 1 at [260]-[261], Doyle J (Parker J agreeing) spoke in similar terms:
In determining whether it is necessary to give an extended unanimity direction in that second type of case, a distinction may be drawn between cases in which the discrete acts are relied upon as independently capable of proving an essential ingredient of the crime charged, and cases in which the discrete acts are relied upon merely as facts that might be found in considering the evidence led in support of an essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the evidentiary route or pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter situation.
In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree. (Emphasis added.)
[69] In Question of Law Reserved No 1 of 2022 [2023] SASCA 109 at [7]-[8], Livesey P emphasised the significance of materially different causes of death or defences on each pathway to a verdict:
The determination will involve an evaluation of the live issues remaining for decision at the close of the evidence, including whether they involve materially different issues or consequences, such as to whether there arise materially different causes of death or defences on each pathway. That may call for the exercise of a fine judgment, involving questions of both fact and degree.
Where the facts and presentation of the prosecution case suggest different evidentiary pathways, but not materially different issues and consequences in connection with the determination of guilt, cases such as Royall v The Queen; R v PL; R v McCarthy; and Zandipour, suggest that unanimity about those pathways in proof of an essential element of the offence is not required, particularly if the offending can be characterised as involving one transaction. By contrast, cases such as R v Klamo suggest that where the prosecution case relies on two or more distinct incidents, each representing a different way of identifying an essential element of the offending, the jury must be agreed about what comprised the essential element. (Citations omitted.)
[70] In R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177 at [3]-[5], Kourakis CJ made some cautionary observations about the manner in which the authorities have discerned the distinction as to when some form of unanimity direction is required and expressed the view, in obiter, that the correct test is to ask: are the alternative bases mutually destructive? His Honour said:
First, it is not obvious to me that the taxonomy which has emerged from the authorities, of alternate party, factual and legal bases of liability is particularly helpful. All truly alternative bases for liability will depend on different factual matrices which have, or may have, different legal consequences.
Secondly, I am, like Peek J, concerned about the inherent uncertainty in the concept of "materially different issues or consequences". Moreover, issues may be materially different and have contradictory consequences even when they are not separated greatly in "time, place or nature".
... In my respectful opinion, the test which is most consistent with that principle is to ask - are the alternative bases mutually destructive? ... (Citations omitted.)
[71] Peek J expressed a combination of approaches in McCarthy at [306], when stating that the relationship between the two prosecution cases advanced in that case as to the cause of death, gave rise to two questions:
Whether extended jury unanimity is required here largely depends upon the relationship between the striking case and the asphyxiation case, particularly having regard to two questions. First, whether there is an independent case to answer on each alternative. Second, whether the two cases are inconsistent, in the sense of being mutually destructive.
[72] Before referring to the parties' submissions in this case, it is of assistance to briefly refer by way of example to some cases applying the distinction to be made in the second type of case in Walsh. As this determination is fact specific, it involves questions of fact and degree: Question of Law Reserved No 1 of 2022 at [6] (Livesey P) and [151] (Doyle JA).
Cases where an extended unanimity direction was not required
[73] Zandipour involved several possible acts causing death in the course of a short, violent attack lasting six seconds. Question of Law Reserved No 1 of 2022 involved death by a single stab wound inflicted by the accused at one of two locations during an altercation, relevantly, in the garden and driveway or on the roadway. Both cases were characterised as a single incident, not requiring an extended unanimity direction.
[74] McCarthy involved a murder in which there were two potential causes of death: a series of forceful blows followed by a final act of asphyxiation, which both occurred within the same room (a garage), were separated in time by only minutes and were inflicted during a sustained assault on the deceased, in the sense of it being largely uninterrupted. Peek J found that on the "correct analysis" the prosecution's case was that these two acts were part of a "single continuous process of assault by the appellant on the deceased": [304]. Although these acts were presented as independent cases, his Honour considered them not to be inconsistent in the sense of being mutually destructive: at [313]. In addition to the lack of inconsistency between the striking and asphyxiation cases, his Honour took into account the small distance in time and space which separated the acts as reasons which favoured there being no requirement to provide an extended unanimity direction: at [315]-[316].
[75] R v Heaney (2009) 22 VR 164; (2009) 194 A Crim R 562 involved the accused stabbing of the victim with one knife and, within a short period of time, stabbing her a second time with a different knife. The two stabbings were treated as a "single criminal activity" (at [85]) rather than two separate offences, having regard to the short period of time which separated them; that the acts were of the "same character" within the "same confined area"; and that both stabbings occurred within the course of the same argument with the victim and were animated by a common grievance. No extended unanimity direction was required.
(All emphasis as in AKB)
It is apparent from the highlighted passages in the trial judge's summing up that the potential cause of the fatal injury was part of one continuous episode and not discrete acts or events. Further, the focus in the second part of the summing up (set out at [77] above) was the elimination of events where the accused could not be said to have been responsible. That was made clear in his Honour's question to the Crown Prosecutor, taking into account the five possibilities his Honour had just set out. The jury were told that if the deceased was dead before she went into the wheelie bin from a cause for which the applicant was not responsible, he could not be guilty of manslaughter.
The Crown's case in the summing up was not, however, that the applicant could not be guilty of manslaughter if his actions had brought about her death before she went into the wheelie bin. The evidence pointed to some form of an assault prior to her being placed in the wheelie bin as a result of the blood which was found in the shower. Such an assault in the "bath" or shower area was also consistent with Teena Coster's evidence.
In those circumstances, no unanimity direction as discussed in Lane or AKB was required in the present case. The present matter is analogous to Zandipour v The Queen (2017) 53 VR 256; [2017] VSCA 179; Question of Law Reserved No 1 of 2022 [2023] SASCA 109; R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177; and R v Heaney (2009) 22 VR 164; (2009) 194 A Crim R 562. If the applicant killed the deceased by an unlawful and dangerous act, whether before or after she went into the bin, he was guilty of manslaughter.
The letter said this (inter alia):
I should of done thing I wanted to then I would not of fucked up another pay day and left my self fucked up again
I should of went and seen feather (ind) by myself then came back to get on like I wanted to But instead because you don't think I will come back or trust me one bit I did it your way and let you come with me so I ended up getting $150 of gas half each then gave you $20 to get some zannys wich I got 1 of you said you gave cuz some and had the rest your self thanks for asking me I then gave you $70 for a quarter of harry you put the other $30 in then had 45 lines and gave me a lousey 10 lines thanks again you didn't want to get off at belambi with me to see mat so I could get some more gas for my self and some pot and keept going
(2)
home you said and would leave the back door unlocked for me to get in so I gave you another $60 to put with the $40 you had from selling that PK I made up and sold at woolongong station to get another 1/4 of harry so I could have a nice tast to you then rang me 2 times from blondys phone to see how much longer I would be and then I got to your place both doors were locked and you would not let me in I know you were in their and had people with you I could hear them I hope you had fun I truley do But one day when I pay for all your drugs I would love to have some fun with you darling instead of you hateing me so much and loving every one else in the world except me the one who will always be their and love you for ever so I hope you enjoyed all the harry I payed for again
(3)
So I went home after 2 hours or so of trying to get you to let me in I then came back at 7pm and your front door was open so I came in to find you naked and laying in a wet spot I truley hope what ever you were up to or what happened to you that you are ok their were condoms laying every were in your bed room so once again I waisted another pay day trying to have a day out with you and $75 worth of gas as we went half in $150 worth I got 10 lines for the first $70 I gave you for harry 3/4 of my opuch of OX again same as I did out of the last 3 pouches I got and $100 for the other 1/4 of harry you were going to get for when I got back to your place
(text as in original)
The particular matters in the letter pointing to recording the events of 9 March 2011 are going to see "Feather", the applicant not wanting to get off the train at Bellambi with the complainant, the applicant not being able to access the deceased's unit that afternoon and the two calls from Blondie's phone (which the phone records show were made - exhibit 37).
Further, the fact that the letter was found inside the deceased's residence after her death was significant in itself. The letter was not one of the "notes" which the applicant claimed to have left the deceased on her front door. It could only have been found inside the unit if the applicant had given it to the deceased and, in the light of its contents, at a time after the deceased was helped into her unit on 9 March 2011, or if the applicant had himself entered her unit after that time. In either case, the DNA showed that the deceased had handled the letter. Those matters proved the lie told by the applicant that he did not see the deceased after he alighted from the train at Bellambi on 9 March. That lie was relied on as a consciousness of guilt lie, and was strong evidence implicating the applicant in her death.
The Crown, in his closing address, submitted that the letter was also relevant for two other reasons. First, it was intended to cast suspicion on other people, being the people the letter asserts were in the deceased's unit when the deceased would not let the applicant into the unit. Secondly, the letter refers to the deceased having ripped off the applicant about drugs and money. The Crown submitted to the jury that other evidence showed that when there were issues concerning the applicant's drugs or issues about money, he had been violent towards the deceased. The Crown suggested that the occasion in the letter might have been a step too far for the applicant, leading to him bringing about her death.
The other lies used by the Crown as consciousness of guilt concerned the applicant's denials in his interviews with police of ever having been violent towards the deceased or ever having tied her up. The tendency evidence was overwhelming in showing that those denials were lies.
The evidence of Witness A of admissions made by the applicant to him was of some significance. A serious challenge was made to his evidence on two related bases. The first was that Witness A was prepared to say anything in order to get bail. Secondly, he was prepared to deceive the Magistrate determining his bail application by altering his appearance to look as if he had been injured in gaol.
The fact that Witness A was very strongly motivated to obtain bail does not, in itself, preclude the evidence he gave being the truth or largely the truth about what the applicant said to him. Witness A may be regarded as an opportunist and one who was prepared to exaggerate, but the fact that he used information given to him for his own purposes does not necessarily make the information he related to the police untrue. A reading of his evidence suggests that he was desperate to be released from gaol because of assaults he had suffered whilst incarcerated. There is no evidence that Witness A acquired the information he gave to the police from any source other than the applicant, and the detail of what he recorded in his notes makes it unlikely that it was from any other source.
While a challenge was also made to the fact that Witness A had amended his original notes by inserting words that tended to amount to admissions of guilt on the part of the applicant, it was ultimately a matter for the jury whether or not they accepted Witness A's explanation that if he had intended to embellish what the applicant had said he would have simply rewritten the whole of the note. What is also of considerable significance is that there was no challenge to Witness A's evidence that the applicant admitted to Witness A, in answer to Witness A's question to him, that the applicant "knocked" the deceased.
Although counsel for the applicant at the hearing of the appeal pointed to what the trial judge said in his sentencing remarks about Witness A, the trial judge's assessment of the witness is irrelevant. It is for the jury to make the assessment of witnesses and there is no basis for thinking that simply because the trial judge had little regard for Witness A, the jury would necessarily have adopted the same approach.
The other evidence of an admission was in the evidence of Teena Coster (above at [33]). It may be accepted that there are some problems with Ms Coster's evidence. On Ms Coster's account the conversation happened at the end of March or early April, that is, after the body was discovered. What the applicant is supposed to have said does not make sense on a number of levels. First, what was described by the applicant could not have happened on the night before he relayed the story to Ms Coster and Ms Andy, because the deceased had died at least some days before. Secondly, there was no bathtub in the unit. Thirdly, it does not make sense for the applicant to have said that he could not get her out of the bath but he could lift her into the wheelie bin, a much more difficult exercise one might think. Finally, there is the fact that the applicant was answering a question posed by Ms Andy about where the deceased was, and Ms Andy's version of his answer is only that the deceased was found dead in a wheelie bin, which was certainly true.
Nevertheless, her evidence was consistent with the evidence of Witness A and was some evidence to be considered with the other evidence which pointed to the applicant being responsible for the deceased's death.
The applicant submitted that the observations of him at the deceased's unit subsequent to 9 March and the phone calls he made to her mobile phone from his mother's mobile phone on 16 March 2011 are an indication that he was not involved in her death. The applicant submitted that these appearances and phone calls could not be thought to be calculated attempts on his part to throw people off the scent. It was submitted that, bearing in mind his drug use and his scattered life, these calculated steps were very unlikely. In any event, it was submitted that such calculated steps were inconsistent with his admission shortly afterwards to Teena Coster that he was responsible for her death.
The making of the telephone calls on 16 March 2011 were matters which had to be weighed in the balance, but it was open to the jury, in the face of the other evidence, to conclude that they were calculated.
Another piece of evidence of some significance was the evidence the applicant gave in his third interview that he entered the deceased's unit through the kitchen window and the side window on some occasions when the deceased locked her keys inside the unit. That was important evidence because, when the police broke in and found the deceased's body, there were no other signs of forced entry into the unit. In that regard, there was evidence that the applicant had lived in that unit with the deceased for some time prior to her death before moving to his own residence. He denied that he had keys to the unit but there was evidence that, although the deceased had been supplied with a number of sets of keys to the unit, none was found except one set in the deceased's possession.
The evidence about the deceased's residence, the keys which were never located, the applicant's own admission that he had accessed the unit through windows on occasions, and the lack of forced entry prior to the deceased's death was highly relevant and directed attention to the applicant's involvement in the deceased's death.
It may be accepted that the forensic evidence (except in relation to the "Dear Jane" letter) did not advance the matter a great deal, but it was not without some significance when it included fingerprints of the applicant on the underside of the outer rim of the wheelie bin, and the applicant's DNA on the bin and the ceiling fan switch which had been turned on.
Dr Duflou suggested four possible causes of death. Three of those involved what on any view would be an unlawful and dangerous act by some person. It may be accepted that the fourth possibility, that is, a drug overdose by the deceased, if voluntarily engaged in by the deceased, does not involve an unlawful and dangerous act by another person.
However, when considering whether there was reasonable possibility that the deceased died as a result of a drug overdose, two things should be considered. First, Dr Perl's evidence about the absence of Codeine in the deceased's body tended to suggest that a drug overdose was not the cause of death. Secondly, it is necessary to consider that if the deceased died from a drug overdose some person thereafter must have tied the deceased up and placed her body head down in the garbage bin and put water into the bin to such an extent that it may have caused the deceased to drown. In other words, if the deceased had died of a drug overdose, what would be the point, it may be rhetorically asked, of tying her up, putting her body in a bin and then putting water in it so that her head would be submerged.
In my opinion, it was not a reasonable possibility that the deceased died of a drug overdose and her body was then dealt with in that way by someone who was present with her or by someone who came across her body. If such a person was concerned about being criminally implicated in the deceased's death from a drug overdose, it is not reasonable to accept that the person would act by tying the deceased up and disposing of her body in the way it was. That was only the more likely to implicate them in her death from the overdose.
For those reasons, that is not a reasonable possibility consistent with the innocence of the applicant.
The same can be said of the other possibility raised by the trial judge in his summing-up, that the deceased died from some other cause that did not involve any criminality of any person. It was not a reasonable possibility in such circumstances that a person including the applicant would then have placed her in the bin and introduced water to the bin. The only reasonable possibility was that the deceased was placed in the bin by the person responsible for her death.
I accept the Crown's submission, made at the hearing of the appeal, that no one else but the applicant had the motive, the opportunity or the tendencies that the applicant had that would leave the deceased in the manner in which she was found. In his closing address, counsel for the applicant at the trial pointed to the DNA evidence of Pece Bedelovski and Adam Dellosta which was found within the deceased's unit. Counsel submitted that there was something odd about Mr Bedelovski and something not right about his evidence. Mr Bedelovski's only connection with the matter was that his DNA was found on a cigarette butt in the deceased's unit. He said that he had never been to her unit, he didn't know where she lived, he didn't know her name and he had just seen her around. He said that from time to time people would ask for cigarettes and he would give them to him. There was no other evidence of any connection between Mr Bedelovski and the deceased.
Counsel for the applicant at the trial submitted to the jury in his closing address that Adam Dellosta was of greater significance. His evidence was that he first met the deceased in 2011 when they were both looking to buy drugs. They obtained some drugs and went to the deceased's unit where they consumed the drugs and then had sex. There was a second occasion when they shared drugs and also had sex. There was some challenge to Mr Dellosta's evidence that whilst he was at the deceased's unit the applicant arrived at the unit looking for the deceased and the deceased said that she did not want to see the applicant.
There was no other evidence to suggest any involvement of Mr Dellosta in the deceased's death.
There was one other person of some interest and that was Tom Roberts. There was certainly evidence that Mr Roberts and the deceased had some sort of intimate relationship for the payment of money to the deceased on two occasions. There was also evidence that he attended her house on a number of occasions and that she did not always want to see him. There was also evidence that he attended her house on the days after she was last seen on 9 March 2011. There was no evidence, however, suggesting any form of violence on his behalf towards the deceased or any of the other women connected to him. There was no evidence pointing to any motive or opportunity on his part to have caused injury or death to the deceased.
In amplification of the considerations set out by Davies J, I regard the tendency evidence in this matter as very strong, if accepted; and see no clear reason to be concerned about the entitlement of the jury to accept most of it. There was little issue as to the significant injuries observed upon the deceased, over and again. Although her representations to the witnesses with whom she spoke about the cause of her injuries, and about having been tied and detained, were unable to be tested, the jury was able to consider all of this evidence in light of the circumstances in which the representations were made and the number of similar complaints. There were circumstances supportive of the accounts of the deceased, and other direct observations of the conduct of the applicant towards the deceased.
The tendencies relied on were quite particular, and probative. Sometimes the tendencies were framed broadly, such as a tendency to assault the deceased and tie her up. Other times, presumably in accordance with a served tendency notice, these matters were expressed with more specificity.
In his opening address to the jury the Crown Prosecutor referred to the anticipated evidence as establishing a pattern of behaviour involving a series of events that would show that the applicant had a particular state of mind; namely, anger towards the deceased for matters relating to drugs and money. It was contended that it would show a tendency to act in a particular way; namely, to be physically violent to the deceased by striking her to her face, arms and body, and to engage in activity with the deceased during which she was tied up with rope and other items, and to detain her after engaging in such activity. In his closing address the Crown Prosecutor referred to the tendencies established by the evidence in this same, particular way. These submissions were borne out by the evidence.
In his summing up his Honour provided tendency directions. These referred to a tendency to be physically violent to the deceased by striking her, to engage in activity with her during which she was tied up with items that were placed around her, including in her mouth, and to detain her after she was tied up with a rope and other items. His Honour referred to the evidence as relied upon to prove a pattern of behaviour. This concerned the applicant's tendency to have a particular state of mind; that is, anger towards the deceased about matters relating to drugs and / or money, and a tendency to act on that state of mind in a particular way; that is, by physical violence, activity which involved the deceased being tied up, and detaining her after she had been tied up. His Honour directed the jury's attention to determining whether the applicant did have that state of mind and tendency to act on it, and whether he did so after he entered the premises on 9 March 2011; and whether conclusions could be drawn from that and the other evidence as to what the applicant did to the deceased that led to her death. His Honour provided limitations on the use of the evidence. He indicated that if the jury did find the applicant had the state of mind and tendency alleged it may make other parts of the evidence more believable.
In summarising the parties' cases his Honour reminded the jury that the Crown case invited a conclusion that the applicant had a state of mind concerning the deceased, and a pattern of behaviour towards her. He referred to the Crown case regarding the applicant's state of mind - anger about drugs and money; and a tendency to be physically violent and to engage in activity where the deceased was tied up and detained. His Honour referred to the Crown argument that no-one else had the opportunity, the motive or the tendency to act in a way that would leave the deceased not only dead but tied up.
The evidence supporting the tendency to tie the deceased up and detain her indicated that this was non-consensual, and thus unlawful, and associated with violence. The applicant told police when interviewed that the deceased would never have consented to being tied up. The deceased complained to others of these acts being done against her will, or when she was asleep and unable to resist, and associated with violence and control. For example, in the middle of February 2011 the witness Leonie Andy saw the deceased with bruises all over her body. She complained of having woken up hog-tied, this having been done to her by the applicant while she was asleep. She said she was left like that for five hours, and that it was because the applicant was annoyed that she had taken his pills.
On a number of occasions when the deceased complained of having been tied up and detained by the applicant she simultaneously complained of other physical violence, with associated physical injuries in addition to the injuries caused by the restraint and detention. Davies J at [36] has referred to the evidence of Leon Boeyen. On the occasion of his observation, and the report of having been tied up and gagged, he also saw the face of the deceased to be so swollen that she could not open her eyes, and the deceased said the applicant had bashed her with his fists. On the occasion of Ms Williams' observation, as described by Davies J at [41], there was clearly violence associated with the restraint of the deceased.
I do not regard as reasonable the proposition advanced on appeal that the applicant could have tied the deceased up after she died to enable lifting her into the bin. The evidence establishes beyond reasonable doubt that the applicant unlawfully tied up and restrained the deceased before her death.
Related to the tendency evidence was the content of the five page "Dear Jane" letter. I understand the Crown case at trial to have been that this letter was written by the applicant and placed by him in the sleeve in the bedside drawer of the deceased after he killed her.
It was argued that the location of the letter in a plastic sleeve with photos and documents personal to the deceased meant that her DNA was capable of having been transferred to the letter because it touched those other items, rather than her actually touching the letter. It was because it was alleged to have been written by the applicant after he killed the deceased that it was left for the jury's consideration as indicating consciousness of guilt (in the false attempt to suggest that there had been other people at her residence on the afternoon of 9 March 2011).
The Crown additionally contended that the letter was partly accurate regarding the events of 9 March 2011, and provided support for the applicant being angry with the deceased about drugs and money on that day. This was the link with the tendency evidence. The content of the letter was also relied on as containing a truthful admission by the applicant of his return to the deceased's residence on the afternoon of 9 March 2011, despite the false description of other people being there, to steer attention away from himself.
The first two ways in which the applicant's ground of appeal was argued (a reasonable possibility that death was caused by drug overdose, natural causes or another person) are accordingly not accepted. I have not treated the applicant's denials of violence towards the deceased and of tying her up as lies indicating a consciousness of guilt. They are so clearly capable of explanation by the applicant's wish to deny criminal conduct short of killing the deceased, in circumstances where he knew she had died, that they are not probative. The Crown contention that the applicant demonstrated consciousness of guilt in writing the five page Dear Jane letter is more complicated, but I have determined that its capacity for such role does not need to be determined in light of the strength of the balance of the Crown case.
The more difficult aspect of this appeal as I see it is with the applicant's third contention, as set out in Davies J's judgment at [52] and [63]-[64]. This aspect of the appeal was the suggested need to identify with precision the applicant's act causing death, and the proposition that it was not open to convict if there was a reasonable possibility that the act causing death was done by the applicant before the deceased was placed in the bin. The correctness or otherwise of this proposition is important, as I do regard the evidence as giving rise to a reasonable possibility that the act causing death was done by the applicant before the deceased was placed in the bin.
The Crown Prosecutor stated at trial that the water may well have been placed in the bin after the death of the deceased to muffle the smell. This was supported by the evidence suggesting that the applicant entered the unit a number of times after 9 March 2011 to turn on fans and the exhaust. It is no more odd to suppose that both the placing of the body in the bin and the adding of the water were done for this purpose - at some unknown time after the deceased died. The only evidence directly supporting the deceased being alive when placed in the bin was the alleged admission to witness A. This evidence on its face contains such discrepancies and inadequacies, signs of being tainted and having lack of probative force that I do not regard it as sustaining proof beyond reasonable doubt that the deceased was alive when placed in the bin. The doubt I have in that regard is not one that I expect the jury's advantage in seeing the witness resolves. In any event, the jury's verdict does not include any indication of whether this witness was accepted or not. The respondent's submission in this Court was that although the jury was not obliged to discard the evidence of witness A completely, it was accepted to carry little weight.
My assessment of the evidence leaves well open the possibility that the deceased died before she was placed in the bin by the applicant, as a result of being tied up and restrained, in combination with either an additional physical assault, asphyxiation, drug affectation or other dangerousness in the circumstances in which she was tied or left once tied.
It was not argued as a matter of principle that an act of the applicant causing death committed before the deceased was placed in the bin could not support guilt. Rather, it was submitted that this proposition arose from the way the Crown limited its case, and the directions of the trial judge said to be consistent with this limitation.
I am not of the view that the case as left to the jury was confined to the extent contended for by the applicant. There was little focus at trial on identification of the act or acts causing death as distinct from whether the applicant was involved. On 2 May 2022 in the presence of the jury panel in waiting, the Crown Prosecutor framed the Crown case this way:
"The Crown case is that at some point between the last time Ms Birch was seen alive and when her body was found, Mr Bagster tied up Ms Birch, placed her face down in the wheelie bin, used a shower hose to put water in that wheelie bin. At some point, either before, during or after she was placed in the wheelie bin, Ms Birch died. The Crown case is that her death was caused as a result of an unlawful and dangerous act of Mr Bagster; that is, Mr Bagster unlawfully killed Ms Birch."
Shortly thereafter, when opening to the empanelled jury, the Crown Prosecutor addressed the jury in the same terms as used in his closing address, as set out in the second and third paragraphs quoted by Davies J at [74].
In the applicant's written submissions in reply to the Crown's supplementary submissions in this Court, it was contended that it was implicit in both the Crown's opening and closing address at trial that on the Crown case the deceased was alive when she was put in the bin. Reference was made to the three acts of tying the deceased up, putting her in the bin, and adding water to the bin. It was submitted that the Crown in opening and closing referred to these as the three acts which were either by themselves or in combination unlawful and dangerous acts causing death. There was reference to the transcript of the Crown Prosecutor's closing address corresponding with the third and fourth quoted paragraphs in Davies J's judgment above at [74]. There was reference to the corresponding part of the opening address, which, as I have just indicated, was in the same terms.
However, this was one statement, and was expressly directed to the acts relied upon if the deceased was alive when the water was added to the bin. The Crown accepted she may not have been, and there was no explicit particularisation of the acts relied upon if she was not. I do not take the express acceptance by the Crown Prosecutor that it was possible that the water was placed in the bin after the deceased was dead as an acceptance of having undertaken the burden of proving beyond reasonable doubt that she was dead when placed in the bin. There was no statement made by the Crown Prosecutor limiting the Crown case this way.
In sentencing the applicant, the trial judge mistakenly thought that the Crown Prosecutor had moved away from suggesting that the tying itself could have caused death because of the way in which she was tied. This submission was not made by the Crown Prosecutor in the applicant's second trial. It was perhaps made in the applicant's first trial.
The Crown Prosecutor at trial also pressed the prospect of physical violence in addition to tying the deceased up, relying upon the blood in the shower recess, the alleged admission to Teena Coster (which was suggestive of having killed the deceased in her bathroom, before depositing her body in the bin), and the evidence of a tendency to inflict blows to the face, arms and body of the deceased when angered by her about money or drugs.
The Crown in closing maintained reliance on the prospect that the deceased died from asphyxia before she was placed in the bin, based on the possibility raised by Dr Duflou.
The focus of the address was very much upon the proposition that the applicant did the things alleged, and not upon which act, or acts caused death. The broad brush approach was indicated, for example, in a submission addressing the applicant's alleged motive, of anger caused by thinking the deceased had "ripped him off", the result of which was that "… he reacted violently towards Jane which ended up with her dead and tied up, upside down in a wheelie bin." The Crown Prosecutor spent time dealing with scenarios in which the applicant was completely "innocent", and addressing the jury as to why these were excluded.
As to the summing up, in addition to the passages set out by Davies J, I regard some further aspects as relevant. Immediately prior to the passage quoted by Davies J at [76] his Honour said:
"You must each determine the criminal act or acts that caused the death. If you cannot determine the criminal act or acts that caused the death, well, no-one can be held responsible for the death. You must ask was that act dangerous in the sense of a reasonable person in the position of the accused performing that act would have realised that he was exposing Ms Birch to an appreciable risk of serious injury. Some precision is required. The act or acts causing death must be established beyond reasonable doubt. If they are not proved beyond reasonable doubt, you would not be able to properly characterise those acts as both unlawful, a breach of the criminal law, and dangerous."
The written directions provided to the jury included direction that an act can include a series of acts, that there can be more than one cause of death, and that the jury did not have to determine what, if any, was the major or direct cause of death. It was stated that it was sufficient to find beyond reasonable doubt that an act of the accused was or remained an operating and substantial cause of the death of the deceased, despite any other problem she suffered from at the time such as drug intoxication. This document was read by his Honour to the jury immediately prior to addresses.
The jury was directed that all the evidence before them could be taken into account in their determination of the case, that they were the sole judges of the facts, and determination of whether they accept arguments of counsel was a matter for them.
In dealing with the drawing of inferences, his Honour said:
"The prosecution say while there is no direct evidence about the accused's state of mind and feelings towards Ms Birch from when she was last seen alive, you can infer what it was from all the proved facts. Similarly, the prosecution case is you can infer from all the proved facts that he was inside the premises when she was placed in the wheelie bin and died and that you can draw from all the proved facts that that is why she died and that he is responsible for her death, it being accepted that putting her in the bin was an unlawful and dangerous act."
There were competing submissions made on appeal about the impact of the last part of the summing up quoted by Davies J above at [77], where there was an exchange with the Crown Prosecutor. The applicant submitted that the Crown case was here expressly limited to death being caused during or after placing the deceased in the bin. The applicant submitted that although the words "found her dead and then put her in the bin" were ambiguous, his Honour's redirection immediately thereafter ("The Crown case is…") was unambiguous. This was said to be consistent with how the Crown had put its case. I have already indicated why I do not agree that the Crown Prosecutor had so limited the Crown case.
The respondent submitted that the Crown Prosecutor had clearly not heard the first question asked of him, so was responding only to the proposition that it was not the Crown case that if the applicant found the deceased dead (for a reason not connected to him) and placed her in the bin he was not guilty. The respondent submitted that there was no indication here of an intentional and significant change to the way causation had been already left to the jury in the summing up. The respondent submitted that the scenario that the applicant may have caused death before placing the deceased in the bin was before the jury and was not removed from the jury's consideration.
I do not regard the Crown case as having been limited in the way contended for by the applicant by the last part of the summing up quoted by Davies J at [77]. In context, it seems that his Honour, after directly addressing the five scenarios the Crown was required to disprove, was simply confirming that the applicant would not be guilty if he came across the deceased already dead and put her in the bin. Although his Honour here referred to two bases of liability, both of which involved death occurring after the deceased had been placed in the bin, I regard these as expressions of two different ways in which the Crown's primary case (as his Honour had previously articulated it) was left. The jury had been so clearly directed by his Honour that the Crown relied upon either the prospect that the applicant caused death before the deceased was placed in the bin, or as a result of doing so, and that the jury / jurors did not need to choose between these different acts, that such a fundamental change would not likely have occurred so casually. As Davies J has indicated at [79], the principal distinction being drawn was between an act of the applicant that caused the deceased's death on the one hand, and an act independent of the applicant on the other.
His Honour was not requested to, and did not, revisit everything he had earlier said about the Crown's primary case and secondary case, and there being no need to choose between them. His Honour was not requested to, and did not, add to the five scenarios that would, if not disproved beyond reasonable doubt by the Crown result in acquittal, the proposition that the applicant caused death before the deceased was placed in the bin. The focus on death occurring after the deceased was placed in the bin, in the passage from the summing up dealing with drawing inferences quoted above at [153], seems in context simply to have been a reference to what his Honour understood the Crown's primary case to be, rather than a limiting direction.
As the respondent submitted, by reference to the part of the summing up appearing in the first paragraph quoted by Davies J at [76], the trial judge directed the jury that while the determination that an act of the accused caused the death had to be unanimous, the jury did not have to be unanimous in its reasons for reaching this conclusion. Further, relevant to the task now for this Court in determining the applicant's ground of appeal, his Honour informed the jury at the same time that they did not need to choose between acts, despite earlier directing the jury that they were required to determine the act or acts that caused death. Whether the Crown was (and is) required to prove beyond reasonable doubt, to the satisfaction of an individual fact finder, what the act or acts were that caused death, is an anterior question to the issue of unanimity. Although the summing up firstly suggested this was required, the jury was then clearly directed that it was not. There was no request for redirection on this point, and there is no challenge to this direction on appeal.
I am of the view that the issue of whether an extended unanimity direction was required in this case was not argued in a way requiring determination of that issue. The applicant's position was that the summing up restricted the Crown case on the cause of death to the deceased being alive when she was placed in the bin, and that the Crown Prosecutor had restricted the Crown case the same way. At the hearing of the appeal, it was submitted that it was not open to convict the applicant if there was a reasonable possibility that death was caused prior to the deceased being placed in the bin, as the matters were narrowed; and "...otherwise the retort I have is the directions are deficient about unanimity of acts."
During oral submissions in reply, the Crown having foreshadowed further written submissions on the significance of a reasonable possibility that the applicant killed the deceased before he put her in the bin, it was contended that if the Crown did not concede its case had been confined in the way asserted by the applicant, reflection would be needed in relation to seeking leave to contend that there had been a misdirection. It was also submitted that on the question as to how this Court approaches its task of independently assessing whether the case was proved beyond reasonable doubt:
"My submission is, the independent assessment should be on the basis of the way I've said the case was presented and ultimately left. But, if the Court's against me about that, then my submission is the unreasonable verdict grounds should still be upheld, with respect, even if there were alternative pathways. But I just make the point, on my feet as I consider it, that it seems that there is then at least a question as to whether or not - if the Court is against me about that, whether or not I need to consider a retrial ground."
It was indicated that this point could not be taken further until the following week (after receipt of the Crown's supplementary submissions).
The respondent's supplementary submissions did not concede the Crown case was narrowed in the way argued for by the applicant. The submissions addressed only the point of whether the verdict was unreasonable if there was a reasonable possibility that the deceased died before she was put in the bin. The respondent indicated that if the applicant was to raise any further issue, such as had been foreshadowed at the hearing, an opportunity to respond may be required.
As noted above, in the applicant's written submissions in reply to the Crown's supplementary submissions, it was maintained that the Crown case was limited at trial to death caused after the deceased was in the bin. I have dealt with that already. It was also stated (paragraph [6]):
"As was submitted at the hearing of this appeal, had there been no re-direction on this issue, it may be presumed that trial counsel would have sought a unanimity direction in accordance with Lane v R [2017] NSWCCA 46 at [18]-[21] as to the factual basis of the applicant's liability for manslaughter by unlawful and dangerous act."
In the absence of a ground of appeal regarding the directions to the jury, or argument on the issue beyond the very brief suggestion for the applicant that such a direction would have been likely sought if his Honour had not limited the Crown case in the way contended, I am not minded to express a view as to whether an extended unanimity direction was required in this case regarding the act causing death.
There was also no argument directed to what I have referred to above as the anterior question of whether the individual fact finder is required to be satisfied of the act or acts causing death. One basis for the law regarding extended unanimity directions is the avoidance of uncertainty or latent ambiguity in a verdict, where any one of a number of acts could potentially support guilt of the charge. However the ground of appeal pursued is not concerned with whether there is any such uncertainty in the verdict. The former practice of pursuing a complaint that a verdict is "unsafe and unsatisfactory" for reasons outside the formula requiring that it not be "unreasonable" or incapable of being "supported having regard to the evidence" is no longer appropriate, and the applicant did not contend that latent ambiguity rendered the verdict unreasonable. The legal requirement for determination of such a ground is settled, as set out by Davies J.
The Court has not been called upon to decide, as a matter of principle, whether the Crown case could only succeed if the evidence established beyond reasonable doubt that the deceased died after she was placed in the bin. Rather, the applicant contended the Court must have a doubt about guilt because the Crown case was so limited. I have explained why I do not accept that there was such a limitation, which in a sense disposes of the applicant's third challenge to the conviction. However, in light of the nature of the ground, and the suggestion of lack of precision regarding the act of the accused causing death, as part of the third way in which it was argued, I will state briefly my reasons for deciding that it was open to the jury to be satisfied beyond reasonable doubt that any act of the accused which caused the death of the deceased (whether before she was placed by him in the bin or afterwards) was unlawful and dangerous.
There will be some cases that require "specific and close consideration" of the act causing death and some that do not: see for example Royall v The Queen (1991) 172 CLR 378 at 385-6 (Mason CJ), referring to Ryan v The Queen (1967) 121 CLR 205. In the circumstances of this trial, it was determined to not focus on the specificity of the act causing death. This may have been because any relevant act meaningfully able to be proved was thought to be suggested by the evidence to be unlawful and dangerous.
There are homicides successfully prosecuted where the act causing death is not known and the Crown is not able to suggest anything in relation to it - such as where the body has not been located, there are no witnesses to the killing or where, as here, the body is so badly decomposed that a cause of death cannot be discerned. The Crown may nonetheless be able to prove beyond reasonable doubt that it was the voluntary act of the accused that caused the death, and that it must have been done with intent to kill or intent to cause grievous bodily harm (in the case of murder).
Despite the less culpable nature of an unlawful killing that does not amount to murder, a manslaughter charge has particular demands of proof regarding the circumstances in which the act causing death was committed. Manslaughter by an unlawful and dangerous act requires close consideration of the circumstances of a voluntary act of the accused to assess whether a reasonable person in his position (the very position he was in, performing the very act he performed) would have realised he was exposing another to an appreciable risk of serious harm: R v Holzer [1968] VR 481 at 482, Wilson v the Queen (1992) 174 CLR 313 at 325, 327, 332-333 per Mason CJ, Toohey, Gaudron and McHugh JJ; R v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [40], Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [55]-[57]. The "circumstances the accused was in" have been suggested to include the physical features of the situation and of his action. Judicial directions must explain the need for considering the particular position of the accused to apply the objective test - for example considering such issues as the vision the accused had at the time he punched the deceased: R v Cornelissen; R v Sutton [2004] NSWCCA 449 at [82]- [84] (James J with whom Hidden and Bell JJ agreed).
The evidence proved that the applicant had assaulted the deceased many times - by tying her up and otherwise physically assaulting her. These acts were unlawful but they were not necessarily dangerous. However in this case the fact that the deceased died is not to be ignored in considering whether any assault (including tying up and restraining the deceased) was committed in circumstances that were dangerous.
I have indicated above that I do not regard as reasonable the possibility that the applicant tied the deceased up after her death. She died physically restrained, by him. The applicant's restraint of her (tying her up and not untying her) was an ongoing act which was unlawful. Clearly if the deceased was placed upside down in a bin alive in this state, whether water was added while she was still alive or not, his ongoing restraint of her was unlawful and dangerous (as was the placing of her in the bin and / or the adding of water), and significantly or substantially contributed to her death.
As I have already stated, I find to be reasonable the possibility that the deceased was already dead when she was put in the bin (by the applicant). As I indicated at the outset, I do not regard as reasonable the possibility that he did this following her death caused by another person, from natural causes, or a heroin overdose, not contributed to by his acts. I am satisfied beyond reasonable doubt that if death was caused before the deceased was placed in the bin it was substantially contributed to by the applicant's tying up and ongoing restraint of the deceased.
Tying the deceased up in the manner she was found would be unlikely by itself to have caused death. Tying her up when she was concussed because he had struck her, or was face down on tiles in the bathroom, or when she was affected by drugs (as she clearly was to a very significant extent on the afternoon of 9 March 2011, when she likely died - and otherwise frequently was), could have significantly contributed to death, and would have been unlawful and dangerous.
The evidence of Dr Duflou, as set out by Davies J at 17 was that it was reasonably possible that neck compression (manual strangulation by hands or ligature strangulation by fabric or rope around the neck) was the cause of death. The absence of fracture of the thyroid bone was not unusual for a woman of the age of the deceased, and changes such as haemorrhages, bruising and abrasions would be masked by the advanced stage of decomposition. The tendency evidence included prior incidents of the applicant restraining the deceased around her neck.
The reasonable possibility that the applicant strangled the deceased by his hands, or rope or fabric around her neck (as he had previously done) did not require him to be acquitted, and no such direction was sought. If for no other reason, the ongoing restraint would still have significantly contributed to death by handicapping the ability of the deceased to defend herself, or to obtain assistance.
There was evidence suggesting physical assault additional to the restraint. Again, the ongoing restraint would still have significantly contributed to death in the event of such an assault (occurring either before or after she was tied up). Further, tying the deceased up whilst injured would have been unlawful and dangerous, and her ongoing restraint during a physical assault would have been unlawful and dangerous.
If the deceased died before she was placed in the bin, the applicant's tying up of her and her ongoing restraint significantly contributed to her death even though this was likely accentuated by further unlawful and dangerous acts (physical assault and / or asphyxiation). If not accentuated by further unlawful acts, I am satisfied beyond reasonable doubt that the circumstances in which the deceased was restrained must have been dangerous, although their precise description is not clear.
For these additional reasons I agree with the orders proposed by Davies J.