Elwood v R [2016] NSWCCA 18
Knight v The Queen [1992] HCA 56
175 CLR 495
R v Cao [2004] NSWCCA 61
R v Cutter [1997] HCA 7
94 A Crim R 152
R v Perks (1986) 41 SASR 335
SKA v The Queen [2011] HCA 13
Source
Original judgment source is linked above.
Catchwords
Elwood v R [2016] NSWCCA 18
Knight v The Queen [1992] HCA 56175 CLR 495
R v Cao [2004] NSWCCA 61
R v Cutter [1997] HCA 794 A Crim R 152
R v Perks (1986) 41 SASR 335
SKA v The Queen [2011] HCA 13
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2013/284209
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: R v Clarke [2014] NSWSC 1746
Date of Decision: 5 December 2014
Before: R A Hulme J
File Number(s): 2013/284209
[2]
Judgment
HOEBEN CJ at CL:
Introduction
The applicant brings this appeal against conviction pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). He relies upon a single ground of appeal as follows:
The verdict is unreasonable or cannot be supported having regard to the evidence.
The applicant was convicted on 16 October 2014 as a result of a trial before RA Hulme J and a jury of the offence of murder.
The applicant was sentenced on 5 December 2014 to imprisonment with a non-parole period of 16 years and 6 months commencing 19 September 2013 and expiring 18 March 2030, with an additional term of 5 years and 6 months expiring 18 September 2035.
The Crown case
The applicant resided in a ground floor unit comprising a living room and adjacent kitchen and a single bedroom with en-suite bathroom in a Housing Commission unit block in Hamilton South in Newcastle. The deceased, Deborah Marie Wolfgram, resided in a Housing Commission unit at Cooks Hill, also in Newcastle.
On Wednesday 18 September 2013 the deceased went to the applicant's unit block to purchase some cannabis. She gave $10 to another resident, who took the money and did not return. The deceased became irate and was complaining loudly to other residents that she had been "ripped off" and had no money to get home. The applicant invited the deceased into his unit.
The applicant had been drinking alcohol since midday or 1pm. At about 5.30pm Lance Paynter brought him some home made spirits in a Midori bottle and a vodka bottle. The applicant and the deceased continued to drink the homemade spirits into the evening. A number of residents and friends, including Les O'Brien, Paul Harvey, David Fletcher, Mark Crooks and Catherine Jarvis came into contact with the applicant during the afternoon and evening and each made observations concerning his state of intoxication.
At about 9pm Mr O'Brien called police about a baby monitor camera he had lent to the applicant. At 9.15pm Constables Armitage and Nonkovski attended the applicant's unit and each made observations of his state of intoxication. After police departed, Mr O'Brien visited the applicant's unit.
Mr Harvey, the applicant's next door neighbour, was drinking with the applicant and the deceased. He accompanied a friend to a train station and returned to the applicant's unit at about 10pm. Mr Harvey, the applicant and the deceased continued to drink and also smoked some cannabis. Mr Harvey observed that the deceased was touching the applicant's leg while they sat on the lounge. Sometime after midnight but before 1am, the applicant said that he had to go to sleep. Mr Harvey got a pillow and a blanket for the deceased from his unit and put them on the lounge for her. The applicant went to bed and Mr Harvey returned to his unit. Sometime after 3am, Mr Harvey heard some thumps on the wall but was unsure whether they came from upstairs or next door. He got up and saw the light on in the applicant's bathroom.
At about 8.30am on the following morning the applicant phoned a friend, Christopher Little. The applicant said that he was in trouble and needed to talk. Mr Little drove to the applicant's unit and observed that the applicant vomited into his kitchen sink. The applicant and Mr Little then went for a drive around Newcastle. The applicant told Mr Little he had been drinking in his unit with a girl the night before and that he hit and killed her. The applicant said that he might get rid of the body in the sand dunes at Belmont. Mr Little suggested that the applicant tell the police that he had been attacked and acted in self defence. Mr Little dropped the applicant back at his unit. The applicant asked Mr Little not to tell anyone.
Mr Little contacted Senior Constable Clayton, a detective he had known for some years. He told Detective Clayton that the applicant had killed a woman in his unit the night before.
At about 4.20pm on 19 September the applicant phoned Kim James, a former girlfriend and Mr Harvey's sister. He asked to borrow Ms James' car to go to Swansea in the early hours of the following morning.
At about 4.30pm Detective Sergeant Wink attended the unit block and found the applicant in a neighbour's unit. When asked the applicant agreed that there was someone dead in his unit and he was arrested.
Police searched the applicant's unit and found the deceased's body between the bed and an adjacent wall wrapped in a blanket. When the body was turned over, blood was found on the underside of the mattress. The blood was later analysed and confirmed to be that of the deceased. Bed linen and the deceased's clothing were found in a bag in the wardrobe. There were traces of blood in the bathroom and shower.
The applicant was interviewed later on 19 September. He said that he was unable to recall what had happened because he had been drinking. Nevertheless, he recounted that he had awoken during the preceding night to find someone standing over him in bed, which reminded him of abuse he suffered in his youth by his uncle. The applicant said that he grabbed the person by the throat and punched the person repeatedly.
On 20 September 2013 the applicant spoke with Detective Senior Constable Grob in the Newcastle Police Station cells. The applicant said that he was sorry and wanted to give everything he owned to the deceased's family. The applicant said that he could recall nothing more of what had happened but wished to speak further with police.
On 16 October 2013 the applicant was interviewed again. He said that he could remember nothing more but had experienced flashbacks, dreams and nightmares. The applicant said that he now believed that he thought the deceased had been a former girlfriend, Sara Nixon. Ms Nixon had threatened him with knives. Ms Nixon and her boyfriend, Paul Watts, had threatened to kill him and had been at his unit block on 18 September 2013.
In each interview the applicant mentioned the person standing over him having a knife which he put in the kitchen sink. No knife had been found in the sink during the search of the applicant's unit. A serrated knife found in a block near the kitchen sink bore DNA consistent with that of the deceased but the applicant denied that it was the knife involved.
Dr Beer, a forensic pathologist, conducted a post-mortem examination of the deceased on 20 September 2013. The deceased had a number of facial injuries consistent with punches to the face. The deceased lay bleeding for some time and a mass of blood and mucus formed in her upper airway so that she was unable to breathe. Blunt force trauma was a factor in the sequence of events leading to her death.
The defence case
No evidence was called in the defence case. The applicant's accounts in interviews with the police were relied upon to support a case that the applicant acted in self-defence. The defence case asserted that the applicant's acts were a reaction to circumstances as he perceived them, which included his experience of night terrors as a result of sexual abuse he suffered as a teenager at the hands of an uncle who the applicant would wake to find standing over his bed.
Evidence relied upon by the applicant in the appeal
The applicant submitted that the following categories of evidence were of particular significance in making out the ground of appeal:
1. The forensic pathologist's evidence regarding the deceased's injuries and the manner of their infliction.
2. The applicant's accounts in his interviews with police.
3. The applicant's account to Mr Little.
4. Witnesses' observations of the applicant's state of intoxication at the time of the events.
The applicant relied upon the following evidence of Dr Beer, the pathologist.
These findings were made by Dr Beer as a result of the post-mortem examination of the deceased. She was aged 55, 164cms in height and weighed 43kgs. She appeared undernourished, consistent with chronic alcoholism. She had advanced micro-nodular cirrhosis. A number of old minor bruises indicated that the deceased bruised easily, reflecting poor clotting ability resulting from liver disease.
Toxicology results revealed that the deceased had a blood alcohol level of 0.356%, an extremely high and potentially fatal level, although chronic alcoholics developed tolerance of alcohol and could still function reasonably well even with high blood alcohol levels.
The deceased's facial injuries included a broken nose, a bruise to the scalp just under the hairline, a blackened left eye, lacerations between the eyebrows, to a nostril and to a lip and swelling and bruising to the nose and cheek area. The injuries were consistent with a number of blows to the face such as punches.
Dr Beer estimated the number of blows at between four and six. Dr Beer described the force required to inflict the injuries as "severe" by which he explained "not a simple tap" but a fist pulled back and delivered "with some speed and force".
Dr Beer examined the deceased's neck externally and internally for evidence of injury but found none. Injury to the neck would have been expected had an assailant squeezed the deceased by the throat with one hand while punching her face with the other.
Dr Beer concluded that the deceased's facial injuries would not of themselves have caused death nor did the deceased have any significant brain or inter-cranial injuries that would have caused death. Bleeding from the deceased's injuries continued over a period of time because of her poor clotting ability. Blood on the mattress suggested that she lay on it bleeding slowly for some time. An amalgam of mucus and blood had formed in the deceased's upper respiratory tract, blocking the deceased's airway so that she was unable to breathe. The blockage of the airway was a component, if not the major component, and may have been the entire explanation for her death.
Although the precise mechanism could only be postulated, blunt force trauma was a definite factor in the sequence of events leading to the deceased's death. Alcohol Concussive Syndrome, in which blunt force trauma combined with high blood alcohol causes functional brain or abnormality resulting in loss of breathing, increased blood pressure, decreased heart rate and abnormal heart rhythm, may have played a role. Individually or in combination, factors such as concussion or alcohol induced stoppage of breathing may have resulted in the deceased remaining stationary and continuing to bleed. Alcohol is a respiratory depressant. Whether the deceased was concussed, could not be determined at post-mortem. Morphological evidence could not confirm that Alcohol Concussive Syndrome was a cause of death.
The applicant relied upon the following accounts which he gave in interviews with police.
In his interview on 19 September 2013 the applicant said that he could not recall what had happened as he had been drinking home brew. He had started drinking at midday, or 1pm the day before. After he went to bed, he went out to the kitchen at some stage and the deceased was on the lounge with her top off. She said "Do you want it?" but he said "You're kidding me" and went back to bed.
The applicant remembered waking up, being shaken, yelling and screaming and it just stopped. She was standing over him shaking him and "going off". He just remembered someone being over the top of him, yelling and screaming. All the applicant could remember was being in bed "having em by the throat and not letting go and just hitting". He remembered her being on top and grabbing the throat and telling her to calm down. He remembered "holding her by the throat and just squeezing and squeezing and squeezing". He grabbed the person and did not stop hitting until there was no more movement. He held her with his left hand. He had his left hand around the person's throat and struck with his right hand. He was half up off the bed which had moved out by that time. He did not know how many times he hit her. He hit until there was "no more anyone coming at me". He punched with a closed fist. He was lying on his back, punching as hard as he could. He was a pretty strong sort of bloke. He had done martial arts and boxing.
The applicant had fears of people standing over him because his uncle abused him as a teenager. He did not know whether it was a male or a female during the assault, but imagined he "would've" realised towards the end. He knocked a knife from the person's hands. He got the knife off the floor and put it in the sink.
When he stopped assaulting the person he turned the light on and realised what had happened and walked around not knowing what to do. He woke up at some time during the night and found the deceased down the side of the bed. He saw blood and the deceased was not moving. When he woke up in the morning there was blood all over his bed and doona. He put the bed linen and her clothes in his wardrobe. He wiped up blood with a cloth. He covered her with a blanket that was half on the ground. He turned the mattress upside down because of the blood. He did not move the deceased from where he found her down the side of the bed. He told Mr Little he "snapped". He denied telling Mr Little that he thought about disposing of the body in the sand dunes with Mr Little.
In his interview on 16 October 2013 the applicant said that he had experienced a lot of "real bad nightmares" and "flashbacks". The next morning he realised it was not Sara Nixon, a former girlfriend, who he had thought it was at the time. Ms Nixon and her boyfriend, Paul Watts, had been at his unit. Ms Nixon and Mr Watts had been threatening to kill him for ages and had previously damaged his car. Ms Nixon had previously threatened to stab him and would have knives in her hands while saying so. Ms Nixon had smashed his window. Ms Nixon had pulled knives on him. His nightmares had indicated it was Ms Nixon. He was pretty sure from his nightmares that it was Ms Nixon on the bed. He remembered nothing more about what happened except he would have been yelling as in his nightmares. He had thought about the knife. He remembered seeing one at the end and pushing or kicking it out into the kitchen but could not say whether the person had a knife.
He was trying to remember through his dreams and nightmares. He remembered cleaning the wardrobe drawers. He had a shower. The next morning he kept drinking and smoking until he realised what had happened, thinking it would go away. He saw blood and injuries to her face. He was crying and just started drinking.
The applicant relied upon the following evidence from Mr Little.
He phoned Mr Little at about 8.30am on 19 September 2013. He told Mr Little that he was in trouble and needed to speak. Mr Little arrived at his unit at about 9.30 or 9.45am. The applicant closed the door and vomited into his kitchen sink. The applicant wanted to go for a drive and they drove around Newcastle for about 20 minutes. The applicant told Mr Little he "killed a girl". The applicant and the girl had been drinking and "he hit her". The applicant said that he woke up in the morning "thinking it was a dream but the girl was dead". The applicant said he "snapped and he hit her".
The applicant said he could not go to the police as he could not go to gaol. Mr Little suggested that the applicant tell the police that the deceased attacked him and that it was self-defence. The applicant said that he was going to get rid of the body in sand dunes at Belmont. The applicant said there was blood all over the doona and he had put his bed over the body so no-one could see. The applicant said he would ask a neighbour for help. Mr Little drove the applicant back to his unit. The applicant told Mr Little "this is between you and me".
The applicant relied upon the following evidence as to his state of intoxication.
Police who attended the applicant's unit at about 9.15pm on 18 September 2013 gave the following evidence regarding his state of intoxication:
1. Senior Constable Nonkovski smelt alcohol on the applicant's breath and considered he was "well intoxicated".
2. Constable Armitage did not smell alcohol on the applicant's breath and did not notice whether he was intoxicated. The applicant appeared to be walking fine and able to talk coherently. However, Senior Constable Nonkovski was the one who spoke with the applicant.
Witnesses who observed the applicant during the afternoon and evening of 18 September 2013 gave the following evidence regarding his apparent state of intoxication:
1. Ms Jarvis saw the applicant and Mr Harvey drinking beers out the front of their units at about 6pm and it seemed like they had been drinking for a while because of their speech.
2. Mr Fletcher entered the applicant's unit at about 8 or 9 pm. The applicant appeared "pretty pissed" and was "stumbling around a bit".
3. Mr Harvey said that at one time the applicant became more composed and looked less drunk. When he returned to the applicant's unit at 10pm after accompanying a friend to the train station, the applicant was "drunk" but did not "bounce around the walls". He observed that the applicant and the deceased were drinking the home made spirits. The applicant loved the Midori but "it punched him in the face pretty hard" and would "knock him around". At one stage the applicant was "really pissed", "the most pissed" Mr Harvey had seen him in a long time.
4. Mr Crooks saw the applicant drinking in his unit at some time. He was "maggoted" and could not even sit on his stool properly. The applicant offered Mr Crooks some of the home made vodka. Mr Crooks had two drinks and they were "really strong".
5. Mr Grach saw the applicant at about 11pm. He was "very intoxicated" and "couldn't stand up himself". He was "sort of leaning over", "like off the wall". He had been "drinking most of the day" and was "pretty pissed". He was mumbling and incoherent and stumbling and falling over the lounge.
6. Mr O'Brien would not comment on the applicant's intoxication.
In his interview with police on 16 October 2013 the applicant said that he was "pretty well smashed" and that he had been told he was "blind" and "incoherent". He had not just the two strong bottles of spirits but "smoked a fair bit of marijuana too". He normally drank alcohol and smoked cones to "blow his head off".
Mr Paynter said that his home made spirits were between 37.5% and 41% proof. Some people said they gave "a good kick".
The appeal
The applicant submitted that the verdict of guilty in respect of the offence of murder was unreasonable and could not be supported having regard to the evidence because the evidence did not permit satisfaction beyond reasonable doubt that he had the mental state necessary to constitute the offence.
The applicant noted that the Crown's contention was that he did the act of punching the deceased in the face which caused her death with the intention to inflict grievous bodily harm and was therefore guilty of the offence of murder. The applicant noted that in the event that such an intention was not established beyond reasonable doubt, the Crown relied in the alternative upon the offence of manslaughter by unlawful and dangerous act.
The applicant took as his start point that the definition of "grievous bodily harm" in s 4 of the Crimes Act 1900 (NSW) was not exhaustive but was inclusive of the kinds of injuries that might constitute it. He accepted that conventionally the concept of "grievous bodily harm" has been equated with "really serious injury" (DPP v Smith [1961] AC 290 at 334; R v Perks (1986) 41 SASR 335).
The applicant accepted that the evidence clearly established that he had struck the deceased to the face a number of times which ultimately caused her death. He submitted, however, that the evidence did not demonstrate that he did so with the intention to inflict grievous bodily harm upon her. He submitted that his act of punching the deceased to the face did not of itself demonstrate that he had such an intention. He submitted that the forensic pathologist's evidence as to the number of blows and force required to inflict the injuries to the deceased at most raised a "possibility" and not a "certainty" that he did the act with such an intention. The applicant submitted that his accounts of the circumstances of the assault in his interviews with the police did not disclose that he had such an intention.
The applicant submitted that the evidence relating to his actual and planned conduct with the deceased's body was properly treated at trial as relevant only to the question of credibility and was irrelevant to the question of whether he had the intention to inflict grievous bodily harm. He submitted that evidence of lies, or other post offence conduct, might be indicative of an accused's consciousness of guilt for causing a death but such evidence said little, if anything, about an accused's mental state in committing the act (R v Cao [2004] NSWCCA 61 at [7] - [8]).
The applicant submitted that murder was an offence of "specific intent" to which the provisions of Part 11A of the Crimes Act 1900 applied (s 428B Crimes Act). It followed, so he submitted, that his intoxication was to be taken into account in determining whether he had the intention to cause the specific result of inflicting grievous bodily harm (s 428C(1) Crimes Act 1900). The applicant submitted that the evidence of multiple witnesses established that he was heavily intoxicated in the period leading up to the time of the assault. He submitted that when the nature and circumstances of the assault were taken into account with the evidence regarding his state of intoxication, it gave rise to a reasonable doubt as to whether he had the intention to inflict grievous bodily harm upon the deceased.
The applicant submitted that deference to the jury's advantage in seeing and hearing witnesses give their evidence, did not resolve the reasonable doubt that this evidence gave rise to in relation to whether he had the requisite intention to inflict grievous bodily harm.
The applicant submitted that the whole of the evidence left open the reasonable possibility that he acted with an intention to inflict some lesser degree of injury than grievous bodily harm and his conviction for murder should not stand (Knight v The Queen [1992] HCA 56; 175 CLR 495; R v Cutter [1997] 94 A Crim R 152; R v Cao). It follows, so the applicant submitted , that the verdict of guilty for the offence of murder is unreasonable and cannot be supported having regard to the evidence (s 6(1) Criminal Appeal Act 1912 (NSW)).
Consideration
The principles to be applied were set out by the plurality (French CJ, Gummow and Kiefel JJ) in SKA v The Queen [2011] HCA 13; 242 CLR 400 at [11]:
"The task of the Court of Criminal Appeal
11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
"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".
12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'.
13 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."
…
14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
"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 s 6(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'."
Later in SKA v The Queen the plurality said:
"20 The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task. The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence. …
21 To determine satisfactorily the applicant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged. …"
More recently this Court said in Elwood v R [2016] NSWCCA 18 per Meagher JA (with whom McCallum and Button JJ agreed):
"21 The question for this Court is whether it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt; in other words, "whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt": Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493.
22 In answering that question the Court has to make its own independent assessment of the sufficiency and quality of the evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400. In doing so, it is required to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses: M v The Queen at 493. Ordinarily a reasonable doubt entertained by this Court would be one which the jury also ought to have experienced, except where the jury's advantage in seeing and hearing the evidence could have resolved that doubt. The jury's advantage is diminished but not removed where that evidence is or includes, as it does here, video recordings of police interviews given by the accused. However even where that is so, there remain the advantages identified by McCallum J in Hawi v R [2014] NSWCCA 83 at [480], which include, when evaluating all of the evidence, that of having seen other witnesses give any conflicting evidence."
For this verdict to be upheld it had to be open to the jury to find beyond reasonable doubt that the acts of the applicant which caused the deceased's death were done with an intention to cause grievous bodily harm, i.e. really serious bodily harm to the deceased. Put another way, the applicant has to establish that it was not open to the jury to so find.
Against that background, it is trite to observe that what a person actually does may provide the most convincing evidence of what the person's intention was at the time. Where a specific result is the obvious and inevitable consequence of a person's acts, and where the person deliberately carries out those acts, it is open to a jury to conclude beyond reasonable doubt that the person did those acts with the intention of achieving that particular result. That such a specific result is a possible or even probable consequence of those acts is not sufficient. The facts of this case are complicated because the only evidence of actual intent comes from the applicant himself. There is also the issue of the applicant's intoxication by alcohol and drugs.
On the issue of intoxication, the applicant does not assert that his level of intoxication was such that he was incapable of forming the specific intent, but that it was not open to the jury to be satisfied beyond reasonable doubt that he did in fact form the necessary specific intent, i.e. to cause to the deceased really serious bodily harm. The applicant's intoxication is, of course, only relevant to that issue.
It is also trite to observe that just because a person may have no recollection of the incident afterwards, or that a person's judgment was affected so that they acted in a way different to how they would have acted if sober, or that the incident was not premeditated, do not necessarily mean that such a person was not acting with a specific intention at the time of the incident.
The applicant submitted that what was said in the second interview of 16 October 2013 ought be largely disregarded given the effluxion of time and the clear elements of reconstruction which emerge from it. I do not understand the Crown to disagree with that position and I have substantially disregarded the contents of that statement. By way of contrast, the statement of 19 September was provided on the day of the incident and to that extent is more reliable.
The following extracts from that first interview are of significance in relation to the issue of intention.
"A120 … I remember holding her by her throat and hitting and just squeezing and squeezing and squeezing. I remember that.
…
A129 I said I hit until there was no, no more anyone coming at me, no-one.
…
A159 … closed fist.
…
A161 … I was punching as hard as I can.
…
A267 And that's all I can remember I just remember the yelling and screaming, I just remember me grabbing someone and hitting and honestly mate, I did not stop hitting until there was no movement.
…
Q328 … Was there a point that you can recall that you believed you were either overpowering this person or …
A328 Right at the end I think.
Q329 … or getting the better of this person?
A329 Yeah, right at the end.
Q330 And when you had that thought in your head what did you do?
A330 I can snap mate.
Q331 Yeah did you continue after …
A331 No mate I let go, I let go. That was it.
…
Q337 During the assault did you at any stage realise who it was or that it in fact was a woman?
A337 No I kind of think it was a woman. I'm trying to think that bit there meself. I'm trying to get yeah cause I remember throwing punches, everything else, but I still honestly mate I just can't for the life of me fuckin just get that bit out of my head mate.
…
A338 I definitely would have realised it was a female towards the end I'd imagine."
I infer from those questions and answers in the first interview that the applicant recalled assaulting the deceased by punching with a closed fist as hard as he could. He continued to hit until there was no movement and no-one coming at him. The fact of continuing the assault until the victim was rendered immobile is strongly suggestive of an intent to disable which would require more than a minor injury. This is also strongly suggestive of an intent to inflict incapacitating, really serious harm.
The applicant also said in that interview that he "snapped" and hit the deceased which is consistent with what he said to Christopher Little (T.131.35). When one adds to that the evidence of Dr Beer that there were at least four - six punches delivered and Dr Beer's assessment of the significant force with which they were delivered, the inference of an intention to inflict really serious harm becomes stronger. Other telling evidence is his realisation that the person he was punching was a woman in circumstances where he was "pretty strong" and was experienced in martial arts and boxing. Although there is no evidence that the applicant realised that the person he was punching was the deceased, it is likely that he realised at some point that the person he was punching was considerably smaller than he. The deceased was in fact of small build and weighed only 43kgs.
Repeated punches to the head by such a person as the applicant to anyone, but in particular to an emaciated older female using as much force as he could and continuing until there was no resistance, were factors such that it was open to the jury to be satisfied beyond reasonable doubt that the applicant's intention was to inflict really serious harm.
In setting out the above analysis, I have said nothing about the applicant's state of intoxication. In that regard, it was (at least implicitly) conceded on behalf of the applicant that those factors might well allow a jury to find beyond reasonable doubt that the applicant had the intention of inflicting really serious bodily harm if he were sober at the time. It was, however, the applicant's submission that he was far from sober at the time which meant that it was not open to the jury to be satisfied beyond reasonable doubt that as a matter of fact he had such an intention.
It was accepted at trial, and the evidence was all one way, that the applicant was intoxicated on the evening of 18 September, before he went to bed. There were, however, differing observations as to the level of intoxication and those observations were made at different times. It is also relevant that the applicant was habituated to the heavy consumption of alcohol so that its effect on him would have been less than on a person who was not such an experienced drinker.
The persons who gave evidence as to the applicant being very heavily intoxicated were Mr Grach, who described him as "pretty pissed" and just mumbling and incoherent at about 1am when he shared some cannabis with him and Mr Harvey. Mark Crooks in his statement described the applicant being heavily intoxicated but no time was mentioned. By way of contrast, when the police officers spoke to the applicant at 9.15pm, he was assessed as being "well intoxicated" by one of them but he was "walking fine and speaking coherently". David Fletcher saw the applicant at around 8-9pm and described the applicant as being "drunk and stumbling around a bit".
The person who was with the applicant most of the time was his next door neighbour, Mr Harvey. He described the applicant as being drunk but not bouncing off the walls (T.154.28). His evidence was:
"Q. And your assessment that he was earlier in the day and around about - in the evening about 6pm the most pissed you've ever seen him, did he seem to sober up or did he stay the same or did he get worse? How would you describe it for the jury?
A. I think he - I wouldn't know if he sobered up, but he become more composed, yeah.
Q. Right, seemed to be not - didn't get any worse?
A. No, didn't get any worse, not - not at that stage, no." (T.162.28)
It is not clear when the applicant went to bed, although Mr Harvey gave evidence of the applicant expressing an intention to go to bed at about midnight when he brought a pillow and a doona for the deceased to use when sleeping on the applicant's lounge (T.155.36 - 156.30). Sometime after 3am Mr Harvey heard knocking or banging sounds which may have come from the applicant's apartment. He observed that the bathroom light in the applicant's apartment was on.
There was evidence to suggest that the applicant's level of intoxication was higher earlier in the night than later. This evidence came from Mr Harvey who spent more time with the applicant than any of the other witnesses. He parted company with the applicant when the applicant indicated that he was going to bed. The observations of Mr Grach conflicted with those of Mr Harvey in a number of respects.
Perhaps the best evidence of the applicant's state of intoxication was from the applicant himself. Although he said that he was heavily intoxicated, the applicant was still able to provide an account of his movements before going to bed and when he assaulted the deceased. His account was quite detailed in relation to a number of aspects. In particular, he could remember going to bed, telling the deceased she could stay on the lounge and quite vivid details of him being in bed at the time of the assault. He also had a good recollection of what he had had to drink that evening. He had a recollection of the argument which had occurred outside his apartment, of him asking the deceased to come inside, of the deceased telling him what the argument was about, telling him that she had no money for a taxi and of him telling the deceased what to do if she needed to use the toilet.
It is also not without significance that before the applicant contacted his friend, Christopher Little, at 8.30am on the morning of 19 September he had spent a considerable amount of time cleaning up his apartment and removing the more obvious signs of what had happened to the deceased. From Mr Little's observations, the applicant was functioning normally when he arrived at his apartment that morning.
On that evidence, it was open to the jury to be satisfied beyond reasonable doubt that despite his intoxication, the applicant was not only capable of forming a specific intention to inflict grievous bodily harm to the deceased but in fact did so. The strongest evidence to that effect comes from the applicant's own statements indicating an intent to disable the person standing over his bed (which at some point he realised was the deceased), coupled with the evidence of Dr Beer as to the force with which the blows to the deceased's head were delivered. It follows that it was open to the jury to find beyond reasonable doubt that the applicant murdered the deceased. The applicant's ground of appeal has not been made out.
The orders which I propose are:
(1) Leave to appeal be granted.
(2) The appeal be dismissed.
CAMPBELL J: Having considered the whole of the evidence at the trial, I agree with Hoeben CJ at CL that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the murder of Deborah Marie Wolfgram. I agree that the orders proposed by his Honour should be made. I also agree with his Honour's reasons for reaching that conclusion.
The issue so ably presented to us by Mr Gartelmann SC, with respect, was not quite the issue on which the case was fought at trial. The sole issue presented by defence trial counsel for the jury's consideration was self-defence (AB 300.32; 525.30 and 543.25T). Naturally, if the jury were not satisfied beyond reasonable doubt that the Crown had negatived the elements of self-defence, the applicant was entitled to an acquittal whether or not he punched the deceased meaning to injure her in a really serious way.
Notwithstanding the limited ground chosen by the applicant at trial to fight the case, the Crown, properly, opened (219.30 - .40T), and closed, on the need for the jury to be satisfied "that the accused assaulted" the victim "with the intention of doing her really serious bodily injury": (AB 515.20 - .45T; and 517.15 - 518.25T). Moreover, the learned trial judge (RA Hulme J) instructed the jury, with respect, in completely conventional terms concerning the need for the Crown to prove the applicant had the specific intention of causing grievous bodily harm, and the possible importance of the applicant's state of intoxication for that essential element of the crime. There was never any suggestion at the trial that, on the whole of the evidence, there was any doubt about it being open to the jury to be satisfied beyond reasonable doubt as to the mental element of murder.
Like Hoeben CJ at CL, a consideration of the interplay among the four categories of facts, matters or circumstances (see [20]) said to create a doubt about the applicant's guilt did not induce a doubt about his guilt in me.
The applicant's own account in the first record of interview is somewhat garbled, certainly discursive, and difficult to follow. As Hoeben CJ at CL's analysis shows, on a careful reading it is possible to extract a coherent account from it which raises the issue of self-defence, but nothing in it is inconsistent with him punching the victim with the requisite specific intent for murder. The detail of the account there recorded, and therefore its reliability, however, is called into question because as Hoeben CJ at CL points out at [26] "the objective, undisputed, expert evidence of the forensic pathologist failed to disclose evidence of injury to the victim's neck if the applicant's account extracted at [60]" were accurate. The jury would have been justified in not accepting what he said at all. In any event as Hoeben CJ at CL says, the totality of his account is "strongly suggestive of an intent to inflict incapacitating, really serious harm" (see [61]).
In my view the evidence of Mr Christopher Little is of particular significance. His evidence in chief was that the accused had told him he had been drinking with the victim and hit her. "He woke up in the morning thinking it was a dream but the girl was dead" (AB 394.35T). He gave the following evidence at 395.20 - .42:
"Q. Did he continue on and explain to you anything more about how he had hit her?
A. No
….
Q. Just take a moment and -
A. Michael said he snapped and he hit her.
Q. Did he go into any more detail about snapping or was that just it?
A. He did, he did say that he knows that I've seen before, he said like, you know, you've seen me when I hit someone.
Q. Just leaving that aside, in terms of snapping did he say that or did he go on to explain what he meant anymore?
A. No, he just said he snapped."
Mr Little's evidence was severely challenged by learned trial counsel, sorely testing his credibility. It may be, with the advantages they enjoyed, that the jury were entitled to think the cross-examination was not without some effect. However, the evidence I have set out was not directly challenged. And at AB 407.5 the following appears in cross-examination:
"Q. He told you, did he not, correct me if I'm wrong, that he woke up in the night, a person was over the top of him, he snapped and punched the person and woke up this morning and there was a dead woman?
A. No.
Q. Is that not correct?
A. No, he didn't tell me he was in bed asleep."
The main thrust of the cross-examination was to challenge other evidence of Mr Little to the effect that it was him who suggested to the accused that he tell police that the victim attacked him, and he acted in self-defence. Obviously, if the jury believed that Mr Little had prompted the accused to raise the question of self-defence they may more readily be persuaded beyond reasonable doubt that the Crown had negatived the defence. This possibility was explained to the jury by the trial judge in his summing up (AB 9.7).
It is notable that Mr Christopher Little's evidence that the accused had told him, inter alia, that he had just snapped and hit the victim was corroborated by the evidence of the former's father, Mr Peter Little (AB 446.45), presumably admitted without objection under s 108 Evidence Act 1995 (NSW). There was no cross-examination of Mr Peter Little.
For the reasons given by Hoeben CJ at CL and for these additional reasons, I am not persuaded that the jury must have entertained doubt about whether the applicant hit the victim with the specific intent of causing really serious injury, and accordingly about his guilt of murder.
N ADAMS J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 18 May 2016