For the reasons just expressed concerning Mr Watkins, the evidence did not require the jury to find that it was reasonably possible that Mr Fitzgerald killed by Mr Tattersall when he returned to the unit with Mr Watkins. Moreover, his conduct in almost immediately calling "000", the evidence of his conduct during that phone call, and his action in undertaking the confronting task of administering resuscitation to Mr Fitzgerald, are strongly inconsistent with the suggestion that he killed Mr Fitzgerald at that time. It is correct that Mr Tattersall lied to the police to try to conceal the presence of Mr Watkins at Mr Fitzgerald's unit. He had been asked by Mr Watkins to do so and consciously attempted to keep him out of it. Mr Tattersall's conduct is explained by the evidence.
The other theoretical possibility was that Mr Tattersall killed Mr Fitzgerald before he left the unit with the appellant. The only evidence that Mr Tattersall was responsible for the infliction of any violence upon Mr Fitzgerald came from the appellant. It was open to the jury to reject that evidence and to accept Mr Tattersall's account. At trial Mr Tattersall expressly denied that he had any physical altercation with Mr Fitzgerald. His account was more consistent with the evidence. The appellant's description of the altercation between Mr Tattersall and Mr Fitzgerald was quite inconsistent with it having been the cause of the injuries to Mr Fitzgerald revealed on post mortem examination. The appellant described the two men wrestling, then both lying on the ground with Mr Tattersall "half over" Mr Fitzgerald, elbowing the back of Mr Fitzgerald's head. He described Mr Tattersall standing on Mr Fitzgerald, but was unable to say whether he did so "intentionally." That account fails to explain the multiple severe head and facial injuries suffered by Mr Fitzgerald.
At trial, Mr Tattersall's credibility was challenged by the appellant's counsel. There was evidence, including from Ms Lee, that during the phone calls made by the appellant from Mr Fitzgerald's unit, Mr Tattersall had laughed about what he said he had seen just happen to Mr Fitzgerald. As I have already explained, he later lied about Mr Watkins having been there. The appellant gave evidence at trial about his observations of Mr Tattersall's mental health. The appellant told the jury that Mr Tattersall had told him that he suffered from schizophrenia, and in the four or five weeks after his return from Melbourne during which he had been staying with Mr Tattersall, he had observed him to have behaved in an unusual way. He said that Mr Tattersall told him that he was hearing voices, and seen "demons running up the wall" which he had tried to stab with a knife. When cross-examined, Mr Tattersall accepted that he suffered from schizophrenia, but said he was medicated for the condition and denied the type of behaviour the appellant described. The appellant also said that during the same period he had witnessed two arguments between Mr Fitzgerald and Mr Tattersall over Mr Fitzgerald's girlfriend, Rachel. He claimed that on one occasion the argument resulted in Mr Fitzgerald punching Mr Tattersall "on the nose". In cross-examination, Mr Tattersall agreed that there was an occasion on which Mr Fitzgerald gave him a "tap on the nose", but that he was acting in a "boisterous way" when drunk. He denied any confrontations between himself and Mr Fitzgerald about Mr Fitzgerald's girlfriend.
It was for the jury to assess the credibility of Mr Tattersall's evidence, and, in light of all the evidence, it was open to the jury to accept the truth of his account. In my assessment, when all of the evidence is taken into account, none of the matters now advanced as relevant to Mr Tattersall's credibility required a reasonable doubt of the appellant's guilt.
Analysis of swabs taken from Mr Tattersall's hands, face, and clothing disclosed the presence of human blood and DNA matching Mr Fitzgerald's blood to an extremely high level of probability. Assuming, as the evidence overwhelming suggested, that the blood was Mr Fitzgerald's blood, it was found on both Mr Tattersall's hands, on his left cheek, on his left sleeve of his long sleeve top and on his jeans. Some human blood was detected in swabs taken from stains on his shoes, but those swabs disclosed no positive match to Mr Fitzgerald's DNA. Ms Flonta gave evidence about the blood staining she observed on the sleeve of Mr Tattersall's top and his jeans. She told the jury that most of the staining was transfer staining, although there were some circular stains, the largest of which was 3 mm diameter, on the left front thigh of Mr Tattersall's jeans, and a group of small circular stains on the lower right leg just above the left side of the cuff. Ms Flonta was unable to say whether the two distinct areas of circular staining were from the same or two different events.
At trial, not much was made by counsel for the appellant of the result of the forensic analysis as it concerned Mr Tattersall. There is nothing in the forensic evidence which is inconsistent with Mr Tattersall's account of what occurred. The presence of blood on his hands and face, and on his clothing, and the nature of the blood stains, is all consistent with having been caused by his contact with Mr Fitzgerald's body in the manner he described as having occurred when he returned to the unit. He said, and the contents of the "000" call tends to confirm, that he administered CPR during the period between the call and the arrival of the paramedics just over 15 minutes later. In contrast to the forensic analysis of the appellant's shoes and clothing, there is, in his case, none of the evidence of heavy staining on his shoes and blood spatter, consistent with having been the person responsible for the infliction of the injuries to Mr Fitzgerald.
[2]
The appellant contends that evidence that Mr Fitzgerald's body was moved cast doubt on the cause of his death and suggested the involvement of Mr Watkins or Mr Tattersall. The submission is to be rejected.
The existence of two areas of pooled blood, one smaller area further into the laundry, and a larger one under Mr Fitzgerald's head in the position in which he was found, pointed to him having moved himself, or having been moved by another person. Ms Flonta's opinion, and the only rational inference, was that the smaller pool of blood, further into the laundry, was created first. The presence of a large blood saturation stain under Mr Fitzgerald's head when found strongly inferred that he was still alive and bleeding when he came to be in that position. The evidence of what Ms Flonta thought was a drag mark leading from the first stain towards the second, the severity of Mr Fitzgerald's injuries and the orientation of his body, suggested that he was moved by someone, rather than that he moved himself. The appellant submitted that the evidence showed that Mr Fitzgerald was moved from one room to another, and that he was found in the "kitchen/loungeroom area". The contention is contrary to the evidence. The distance between the two areas of blood can be seen in the photographs. It is difficult to judge with precision but appears to be about 300-400 mm. If Mr Fitzgerald was moved, or moved himself, it was only for about that distance. The result was that his legs protruded further out the door into the kitchen. The position in which Mr Fitzgerald's body ended up is still substantially within the laundry.
At trial, the appellant suggested that movement of the body into a position in which it may have been more difficult for him to breathe, combined with his intoxication, gave rise to doubt about the cause of his death. I see no such doubt. Dr Lawrence gave evidence that the position in which Mr Fitzgerald was left may have added to the risk that his airways may have been compromised. However the susceptibility to hypoxia principally resulted from the injuries. The injuries were the substantial cause of Mr Fitzgerald's death, not the position in which he was left. It was the acts which caused the injuries which caused his death.
The plate of food which the appellant said he left beside Mr Fitzgerald's head is immediately adjacent to his head in the position in which he was found. Blood was pooled under his head in that position. There was no evidence reasonably capable of supporting the inference that he was moved by Mr Tattersall or Mr Watkins after they arrived together. That scenario is inconsistent with the evidence. Mr Tattersall may have moved Mr Fitzgerald by rolling him further onto his back to perform CPR, but not otherwise. As to the earlier events when Mr Tattersall and the appellant were present in the unit together, if the jury accepted the truth of Mr Tattersall's evidence, it was reasonable to conclude that Mr Fitzgerald was moved by the appellant himself before he left the unit. It provided no support at all for the contention that Mr Fitzgerald was killed by someone else.
[3]
In my assessment, the case against the appellant was very strong. The path to the finding of guilt is clear. It was supported by the direct evidence of Mr Tattersall and strongly supported by the circumstantial evidence. There is nothing in the individual or combined force of the matters now relied on by the appellant, or anything else, which on all of the evidence required the jury to entertain a reasonable doubt about his guilt. For those reasons I concluded that the appeal, as it applies to the appellant's conviction, should not succeed.
[4]
The appeal against sentence is on the ground that the sentence is manifestly excessive. It was for the learned trial judge to find the facts upon which the appellant was sentenced, and the sentence must be assessed in accordance with those findings. His Honour found:
[5]
"I am satisfied beyond reasonable doubt that, after the argument started, the deceased hit you in the jaw. You retaliated by hitting him a number of times which caused him to fall to the floor in the laundry area. Whilst he was helpless on the floor, you kicked him in the head at least twice and then stomped on his head more than once. These actions caused injury to the deceased's brain which resulted in a loss of consciousness. He also suffered facial injuries which included heavy bruising and bone fractures. The kicks and stomps also caused extensive bleeding, including in the upper airways.
[6]
After this attack, you placed a plate containing the deceased's uneaten meal, on the floor beside his head. You then stole food from his refrigerator, packed it into a suitcase and you and the other man then left the unit. You did not return. I accept that when you left, you believed that the deceased was alive and that his injuries were not life-threatening. I accept that you placed his meal on the floor beside his head in the misguided belief that he would simply wake up, feel hungry, and decide to finish eating his dinner.
[7]
Although you did not return to the unit, the third man and another person did so. They got back to the unit within approximately one hour of your attack on the deceased. I am satisfied that by the time they reached the unit, the deceased had died. Although the pathologist accepted that the high level of alcohol in the deceased's blood may have been a contributing factor to his death, the jury must have been satisfied, and I am satisfied, that the injuries which resulted from your attack upon him were the substantial cause of his death. In particular, he inhaled blood and gastric contents into his airway. This was fatal because he was unconscious. The jury's verdict necessarily implies a rejection of the suggestion that some other intervening act occurred, which broke the chain of causation between your actions and the deceased's death."
[8]
As to the appellant's state of mind at the time, his Honour continued:
[9]
"The prosecution case in respect of the crime of murder was put on alternative bases. However, senior counsel for the Crown did not seriously dispute the proposition that sentencing should proceed on the basis of a finding that the requisite state of mind was consistent with the second limb of s 157(1)(c) of the Criminal Code, that is, that you ought to have known that your unlawful acts of kicking and stomping the deceased to the head while he was on the ground, were likely to cause death. I am satisfied that that is the appropriate basis for the finding of murder. You did not intend to kill your friend and in your alcohol-fuelled rage, you did not consciously avert to the likelihood that your actions would result in death. I reiterate that, in my assessment, after you had completed your attack upon him, you probably believed that he would simply wake up and eat his dinner."
[10]
Thus, consistently with the verdict, the trial judge found that the appellant did not intend to kill Mr Fitzgerald, but, with the knowledge and capacity he actually possessed, he ought to have stopped to think about the likely consequences of his actions and, had he done so, he would have appreciated that his acts were likely to cause Mr Fitzgerald's death. His Honour continued:
[11]
"Of course, there is no question that, firstly, you should have stopped to think about the consequences of such a vicious attack and, secondly, that had you done so, it would have been obvious to you that kicking and stomping a person viciously in the head while he was on the ground, was likely to cause death. Further, your culpability in respect of this attack is aggravated by the brutal and vicious nature of the assault, and by the fact that you did not bother to check how badly your friend was injured. Instead, you stole his food and then left him bleeding and unconscious on the floor of his home. This callous disregard of his welfare is not mitigated to any significant extent by the pathetic gesture of placing his dinner near his bleeding and unconscious head.
[12]
As to whether the crime may have been mitigated by the fact that Mr Fitzgerald instigated the violence, the trial judge said:
[13]
"Your counsel submits that the fact that the physical confrontation commenced with an assault upon you by the deceased and that initially, at least, you were probably defending yourself, provides some mitigation for your conduct. I accept that you did not plan or anticipate this violence. It occurred as a spontaneous reaction to the deceased's attack upon you. However, self-defence was no longer relevant after the deceased had fallen to the floor. What happened then constituted brutal and unrestrained violence against a man who was not able to defend himself. Further, the fact that your explosion of anger may have been fuelled by the alcohol you had consumed does not mitigate your conduct. On the contrary, it demonstrates a well-established and very dangerous and concerning aspect of your character; a propensity for serious and unrestrained violence when you become angry while under the influence of alcohol."
[14]
I respectfully agree with everything his Honour said in the above quoted remarks. The assault was spontaneous and in response to Mr Fitzgerald's initial aggression. However, the damaging blows were not inflicted in self-defence, but when Mr Fitzgerald was on the ground, unable to defend himself and completely vulnerable to attack. It would be obvious to almost anyone that such brutal and repeated blows to the face and head would likely result in the death of the victim.
Sentences for murder imposed on the basis of the second limb of s 157(1)(c) of the Code were reviewed by this Court in Dobson v Tasmania[2017] TASCCA 19. That case concerned a man who was sentenced to imprisonment for life, with eligibility for parole after 15 years. The Court found that the sentence was not manifestly excessive, even though, as in this case, the appellant did not intend to kill or cause bodily harm which he knew to be likely to cause death, or know that his unlawful acts were likely to cause death. It is unnecessary to repeat everything which was said in Dobson. However, in the course of its reasoning, the Court made clear that, as a matter of principle, cases not involving an intention to kill are not to be regarded as necessarily less serious, thereby attracting a lighter sentence than that which is appropriate for other categories of murder. Here, any reasonable view of the evidence would lead to the conclusion that stomps and kicks involving such significant force to Mr Fitzgerald's face and head were unlawful and inherently dangerous because they were likely to kill him, and in fact did so.
At the time of the crime the appellant was 35. When sentenced he was 36. Contrary to his appeal counsel's submission, he displayed no remorse. He was not entitled to the mitigation a plea of guilty would have attracted. He came from a dysfunctional background. He was estranged from his father from a young age. His mother had multiple partners. He was exposed to violence which became normalised in his life. He was educated only to Grade 7 and went into State care at age 12. He was sentenced for assaults committed as a youth. As an adult he has led a largely itinerant life and has a very poor record for offending, for crimes of violence and dishonesty in particular. As the learned trial judge correctly recognised, the appellant's criminal history was a significant factor in sentencing. For present purposes the offences of violence are the most relevant. Examination of his record demonstrates a strong correlation between the appellant's anger and violence and substance abuse, particularly abuse of alcohol. In 1999 the appellant was sentenced to imprisonment for two years and three months, part of which was suspended, for an aggravated armed robbery committed when he was 17. On that occasion he struck an unconscious man to the face with a baseball bat before stealing money from him. The sentencing judge, even then, referred to the appellant's lack of self-control and propensity to anger and violence. On 19 June 2002, the appellant was sentenced by a magistrate to imprisonment for two months, wholly suspended, for assaulting a police officer in March 2002. About six months later, on 25 December 2002, the appellant, with another man, savagely assaulted two other young men after entering the home in which they were sleeping. He was intoxicated at the time. By then, the appellant was aged 21 and had accumulated six convictions for assault. He was sentenced to imprisonment for two years and three months. In 2006 and 2007 he was sentenced for offences including abusing, resisting and assaulting police and two further common assaults. On 18 August 2008 he was imprisoned for four months for perverting justice by lying to a bail justice. In December 2008 he was imprisoned for another common assault committed earlier that year. On 10 September 2009 he robbed a bottle shop by threatening that the bottle of spirits he had stolen would be broken and used to stab the manager. He was sentenced to imprisonment for seven months. Over the course of 2010 and 2011 he committed further violent offences, including a series of acts of serious violence against his then partner, mostly while subject to family violence orders. On 20 August 2010 he twisted her thumb until it broke, grabbed her in a choke hold and dragged her until she passed out. On 11 February 2011 he assaulted her by throwing a glass at her face causing serious lacerations and permanent scarring. On 27 May 2011 he assaulted her by punching her. On the next day he pulled her hair, pushed her onto a bed where he grabbed her by the throat, choked her, struck her to the face and threatened to kill her. He was sentenced to a number of terms of imprisonment including a term of ten months from 17 February 2012 imposed by Porter J for the glass incident. On that occasion his Honour paid considerable attention to the connection between alcohol abuse and the appellant's offending and the continuing prospect of his rehabilitation. For that reason, an 18 month probation order was made. However, the appellant did not take advantage of the opportunity extended to him. He did not engage with the probation service and continued to offend, although there were no further serious offences of violence until this crime was committed.
The trial judge dealt with this aspect of sentencing in these terms:
[15]
"It is clear from the comments on passing sentence with respect to some of these crimes, together with information provided by your counsel, that you had a dysfunctional upbringing which included significant violence and abuse towards you. It has also been noted that you have had a long-standing and significant problem with the abuse of alcohol. These aspects of your background assist in understanding the development of your present character, and its influence on your contemporary conduct. The judge who sentenced you in 1999, and others subsequently, have noted your 'propensity to anger and violence'. You have been offered rehabilitative support through sentences in the past, intended in particular to address this propensity. Despite the deterrence and support provided by past sentencing, it is clear that your propensity to engage in violence, particularly when under the influence of alcohol, is still a significant aspect of your character, and has manifested from time to time in the commission of serious crime. Of course, it is that propensity which manifested in this case, and resulted in your commission of the crime of murder.
[16]
Although murder constituted under the second limb of s 157(1)(c) is generally regarded as a less serious form of murder than other examples of the crime, the aggravating aspects of this crime make it a serious example of murder. Further, although you are not to be punished for your prior offending, that history is relevant to your culpability for this crime and the determination of the appropriate sentence. In the light of your criminal history, and the propensity for violence demonstrated by it, it is necessary in sentencing for this crime, to place considerable emphasis on personal deterrence and protection of the public."
[17]
Again, I respectfully agree. His Honour was correct to assert that protection of the public was an important sentencing factor. It is, along with deterrence, retribution and reform, one of the primary aims of sentencing, and is a factor in determining a proportionate sentence. This was a most serious and disturbing manifestation of the appellant's propensity to violence, especially when affected by alcohol. Although it was not a deliberate killing, death resulted from shocking injuries caused by repeated savage blows. There might have been some initial need for self-defence, but the most severe violence was inflicted when the victim was on the ground and defenceless. The appellant's decision to leave Mr Fitzgerald, even allowing for his misguided belief that the injuries were not life threatening, not only aggravated his criminal conduct but demonstrated his lack of remorse.
The appellant's submissions on this ground were, to some extent, confused with the assertions advanced in support of other grounds of appeal contending that he should not have been found guilty. As they applied to the sentence, the submissions are principally directed to a few points. The appellant complains that he was "not the only person involved in the murder", and that other people were at the scene of the crime and played a part in the assault. He contends that "he was not the only one involved in the attack" and "should have been sentenced according to the degree of participation, or criminality". The submissions are based on a false premise. It followed from the verdict and the trial judge's findings of fact that the appellant was to be sentenced on the basis that he, not someone else, inflicted the blows which caused Mr Fitzgerald's death. The suggestion that another person was criminally responsible for Mr Fitzgerald's death is inconsistent with the verdict as the issues were joined at trial. As the trial was conducted, the verdict is inconsistent with the assertion that anyone other than the appellant was criminally responsible. Even if that was not so, the appellant was to be sentenced in accordance with his own criminal responsibility and culpability. In light of the objective circumstances of the crime, as found by the trial judge, and the appellant's record for violence, the level of the appellant's moral culpability was extremely high.
The appellant complains that more weight should have been given to the evidence that "he was heavily intoxicated with alcohol and illicit drugs, and did not have the full mens rea as a reasonably sober person would". It should first be pointed out that there was little or no evidence that the appellant had abused illicit drugs. The submission is made in the context of the appeal against sentence, but reference to "the full mens rea" invites reminder that the necessary mental element for guilt of murder was proved. As the learned Chief Justice explained when ruling on an earlier application to amend the grounds of appeal, evidence of self-induced intoxication of an accused is irrelevant when considering whether the accused ought to have known the consequences of his conduct: Attorney-General's Reference No 1 of 1996(1997) 7 Tas R 293. Intoxication induced by voluntary use of drugs or alcohol is rarely mitigating, particularly in cases of serious violence: Good v Wood[1990] TASSC 107; B30/1990. The principle that, ordinarily, intoxication is not mitigating has often been re-stated by intermediate courts of appeal in other jurisdictions: see for example Hasan v The Queen[2010] VSCA 352; 31 VR 28; R v Williams[2018] SASCFC 14. In this case, the appellant's intoxication carried no mitigation. He had been drinking for many hours. With Mr Fitzgerald he had gone out to purchase more alcohol. No leniency could be extended to a person who, having demonstrated a propensity to violence after consuming alcohol, again acted violently when heavily intoxicated. Intoxication did not cause the appellant to act in any way which was out of character. His crime was a predictable manifestation of the long established link between his alcohol abuse and violence, and reinforced the risk he posed to the community.
It was submitted by counsel for the appellant that the appellant's problems were "rooted from the abuse and violence towards him at a young age". The learned trial judge made specific mention of the appellant's dysfunctional upbringing. It was a factor his Honour took into account as assisting in the understanding of the appellant's character and conduct. It was not a factor which reduced the appellant's moral culpability for a crime of such gravity.
This ground cannot succeed unless the appellant demonstrates that, when all matters relevant to sentence are taken into account, the sentence is plainly unjust or unreasonable. In my view, after considering other sentences for murder, and the circumstances of this crime and this offender, the sentence imposed, both as to the head sentence and the non-parole period, was well within the proper exercise of the trial judge's sentencing discretion. The sentence was not manifestly excessive.
[18]
Neither the challenge to conviction or sentence was made out. For the foregoing reasons I joined in the order dismissing the appeal.
[19]
On 3 March I joined in the order dismissing the appeal. I respectfully agree with the reasons for judgment of Pearce J.
The appellant contends that the verdict of the jury was "unreasonable and unsupported." The ground finds statutory expression in this State in the Criminal Code, s 402(1), which provides that the Court "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence." As was recently re-stated in Pell v The Queen[2020] HCA 12, 94 ALJR 394 at [43], the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen[1994] HCA 63; (1994) 181 CLR 487 at 493. The court must ask itself:
As explained in M, and restated in MFA v The Queen[2002] HCA 53, 213 CLR 606, and in Pell, the question does not depend on whether, as a matter of law, there is evidence to support the verdict, but rather whether the evidence required the jury, acting rationally, to have entertained a doubt as to the appellant's guilt. An appellate court must conduct an independent review of the evidence, but making full allowance for advantages enjoyed by the jury, including from having seen and heard the witnesses. Given the central role of the jury in the administration of criminal justice, this Court is not to substitute trial by an appeal court for trial by jury: R v Baden-Clay[2016] HCA 35, 258 CLR 308 at [65]- [66].
On 13 December 2019 the appellant's counsel sought leave to add further grounds of appeal. One proposed ground sought to challenge the verdict on the basis that the appellant's trial counsel should have, but did not, obtain psychiatric evidence. That part of the application was immediately refused for reasons given at that time. One proposed further ground asserts a miscarriage of justice on the basis that the jury "was blind sighted [sic] by the fact that there were [sic] so much evidence showing and proving the guilt of the other witnesses". Another refers to a "perversion of justice" on the basis, in substance, that the evidence proved that the "other witnesses", were not credible and "played a part in the crime". A third proposed ground asserts that the appellant could not have committed the crime in the manner alleged by the prosecution because he was physically incapable of doing so because of the ongoing effects of a broken leg, and because of his intoxication "by both alcohol and drugs".
All of the proposed new grounds add nothing to the existing ground alleging that the verdict was unreasonable and not supported by the evidence. The factual matters raised by the proposed grounds are properly considered as aspects of the evidence on which the verdict of the jury was based.