213 CLR 606
R v James [2013] NSWSC 1560
R v PL [2009] NSWCCA 256
SKA v R [2011] HCA 13
Source
Original judgment source is linked above.
Catchwords
153 CLR 317
Graham v The Queen [1998] HCA 61195 CLR 606
M v The Queen [1994] HCA 63181 CLR 487
MFA v R [2001] HCA 53213 CLR 606
R v James [2013] NSWSC 1560
R v PL [2009] NSWCCA 256
SKA v R [2011] HCA 13
Judgment (13 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2011/174642
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: R v James [2013] NSWSC 1560
Date of Decision: 25 July 2013
Before: McCallum J
File Number(s): 2011/174642
[2]
Judgment
HOEBEN CJ at CL:
OFFENCE AND SENTENCE
On 24 June 2013 the applicant, Anthony Mark James, was arraigned before McCallum J in the Supreme Court on a single count that on 26 May 2011 he did murder Dana Lomas. Dana Lomas was also known as Dale Lomas. The applicant entered a plea of not guilty and the trial proceeded.
The jury retired to consider its verdict on 3 July 2013. On 9 July 2013 the jury returned a verdict of guilty of murder.
On 25 July 2013, McCallum J sentenced the applicant to imprisonment with a non-parole period of 16 years, commencing 9 December 2012, with a balance of term of 5 years (R v James [2013] NSWSC 1560).
The applicant seeks leave to appeal against his conviction and sentence on the following grounds:
Ground 1 - The verdict was unreasonable and cannot be supported having regard to the evidence.
Ground 1A - Her Honour erred in not leaving provocation as a partial defence to the jury.
Ground 2 - Her Honour erred in not taking into account the applicant's onerous bail conditions for 18 months which were akin to house arrest.
Ground 3 - The sentence was manifestly excessive.
SUMMARY OF CROWN AND DEFENCE CASES
The applicant and the deceased shared a house in Doonside. The majority of the witnesses in the Crown case provided background/context evidence of the relationship between the deceased and the applicant. Their evidence related to various instances of domestic violence and arguments.
The medical evidence confirmed that the cause of death was a single stab wound, although the deceased did have some other injuries, most notably a fractured hyoid bone. There was pharmacological evidence that the level of methylamphetamine in the deceased's blood meant that he had consumed drugs that day and may have been behaving in an aggressive manner. The applicant did not give evidence but his ERISP with the police at the scene was tendered (an audio tape).
The Crown case, as put to the jury, was that the applicant had attacked the deceased, that the deceased had slashed out at him with the knife and that the applicant had wrestled the knife from him and stabbed him with it.
The applicant had three lacerations to the right forearm that required stitches, one deep laceration to the left forearm that required stitches and was complaining of neck pain. There was no issue that these injuries were suffered as a result of being stabbed with the knife, nor was there any suggestion that these injuries were self inflicted.
The effect of the applicant's ERISP was that he and the deceased had a fight. The deceased had been shooting up and was drugged. He was enraged because the applicant was packing up to leave. The deceased had a knife and slashed at the applicant a couple of times. The applicant did not know what to do but eventually grabbed the knife from the deceased and stabbed him once. When asked what he was trying to do with the knife, the applicant said "Just protect myself".
THE EVIDENCE
Senior Constable Donna White
She was the Crime Scene Officer, who attended the deceased's house. She found that the deceased was lying on the lounge with a blanket partially on him. The knife was next to the deceased in the blanket.
Gloria Anderson
She was a sister of the deceased and would visit once or twice a week. She met the applicant on the deceased's birthday on 14 May 2010 and she became aware that the applicant had moved in with the deceased in "probably late May, early June, around that time". When she visited the deceased, the applicant would remain in his room. She was aware that at some stage the deceased had told the applicant to move out.
From time to time after the applicant moved in with the deceased, she noticed or was told about several instances of violence against the deceased. These included a bruise on the deceased's arm and bruising all over his body in October 2010 in respect of which the deceased said "Tony belted him". On 19 March 2011 the deceased attended a cocktail party with his family. He returned shortly after leaving and said "Tony had told him to "f*** off" out of his house and chased him down the street with a knife". She gave evidence of an occasion in early 2011 outside the deceased's home when she heard the applicant say to the deceased "You're a dog". She said that "he was really angry at Dale, he was shouting at Dale". On 25 May the deceased had bruising on his back that he said was the result of being beaten with a four by two by the applicant.
In cross-examination Ms Anderson said that although she had heard the applicant yell at the deceased, she had never witnessed him harm the deceased. She said that the applicant had told her that he was a black belt in karate. She was aware that the deceased suffered from paranoid schizophrenia, depression and a sleeping disorder and that at the time of his death, he was not taking medication for these conditions. She said that in the months leading up to his death, the deceased was not looking after himself, had no money and was losing weight.
She said that she was aware that the deceased was using illicit drugs - "That's something we learned from someone else, plus we found syringes at his house" and "I did know Dale had no money because the money was being spent on the drugs for him and Tony". She said that this drug use had started after the applicant moved in with the deceased. The deceased sometimes used the name "Dana King", which was a female persona. He sometimes used the name "Stacey Wells".
In re-examination Ms Anderson said that the deceased would sometimes dress as a female. His hair was long and he wore it in a ponytail "all the time".
Bella Winikerei
She was a sister of the deceased. She and her partner lived with the deceased from November 2009 until 9 October 2010 and after moving out of the house, she continued to see the deceased most days. She met the applicant two weeks before the deceased's birthday and the applicant moved into the house the Wednesday after the birthday (i.e. May 2010).
In cross-examination Ms Winikerei said of the applicant, "For the first couple of weeks he was quiet. When I first moved in he was quiet, then after that he was rowdy because there were arguments". She recalled a knife that the applicant had brought into the house which she described as having a "brown handle, and it's the shape of a machete but a smaller version". She had seen this knife in the deceased's bedroom and later in the kitchen. Her drawing of this knife was exhibit B in the trial. She said that the deceased and the applicant shared a bedroom and that the deceased had told her that he loved the applicant.
She described arguments between the applicant and the deceased and that the applicant "would be swearing at Dale, really abusive and like verbally" to which the deceased would respond telling the applicant to get fed. Ms Winikerei described several instances when the deceased told her that the applicant had assaulted him. These included scratches and bruises to his face in November 2010, bruising to his back and chest that the deceased said was the result of the applicant hitting him and burns on his arm that the deceased said were the result of the applicant putting a cigarette out on him. She said that in 2011 the deceased attended a cocktail party with his family and returned shortly after leaving claiming "the fing c*** chased me down the road with a knife out of my own home".
In cross-examination Ms Winikerei said that in the five month period she was living with the applicant and the deceased, she never saw the applicant physically harm the deceased. She said that the applicant told her that he was a black belt in karate. She said that the deceased told her of occasions when he had struck back at the applicant, including placing the applicant in a head lock and punching him.
Ms Winikerei said that she had attended the deceased's home to evict the applicant on the morning after the cocktail party. On that occasion the applicant had left the house without a fuss, but had not moved his things from the house. She said that in the week before 14 May 2011 the deceased told her that he had given the applicant seven days to move out.
Ms Winikerei said that she had seen both the applicant and the deceased smoking "weed" but that she was unaware that the deceased was using methylamphetamine. She was aware that the deceased was experiencing "money issues", despite the money that his family gave him. She had observed that "things were slowly going out of the house. That's when I knew there were really money problems".
Eileen Winikerei
Eileen Winikerei was the niece of the deceased and the daughter of Bella Winikerei. She said that she would see the deceased two or three times a week and that although she saw the applicant several times, she only spoke to him once. The deceased told her that the applicant had left his wife to be with him. She described the deceased's view of the relationship as "He was happy and then a few times after, and he wasn't so happy after that. He was saying Tony was a black belt and he was scared of him."
Ms Eileen Winikerei said that although she did not see any violence inflicted on the deceased, he told her about two occasions when the applicant had assaulted him. The first was the night of the cocktail party in March 2011 when the deceased had left and returned to the party "crying and hysterical, just really upset" and told her that "Tony had chased him out of his own home with a knife". The second was on 22 May 2011 when the deceased showed her bruising across his back.
She had attended the deceased's home on the morning after the cocktail party to evict the applicant. She said that the applicant had made a phone call and said words to the effect of "I need some boys to get these bitches out of the house" and argued with them, but had left the house.
Ms Eileen Winikerei said that she was unaware that the deceased was using methylamphetamine, although she was aware that he was not eating properly. She said that she had never seen the applicant assault the deceased.
Sandra Crawford
Ms Crawford lived in the same street and knew the deceased. The deceased used to come over and tell her about his problems with the applicant. He told her that the applicant "used to abuse him, physically hurt him". She recalled the deceased once telling her that the applicant had held a knife to his throat and threatened to cut his throat.
Ms Crawford said that she had witnessed an occasion when the applicant was violent towards the deceased. On 20 May 2011 she had alighted from a bus and was looking up the street when she saw the applicant (who was approximately six metres away) strike the deceased with a bed slat "Once, which missed and then he hit him a second time, then he hit him a third time".
In cross-examination Ms Crawford agreed that after being struck with the bed slat, she saw the deceased retrieve a five foot metal pole from the house and run down the street after the applicant with it. She denied that he had "chased" the applicant with it as "Tony was three quarters of the way down the road before Dale went after him". Following this incident, the deceased attended Ms Crawford's home and asked that she call the police which she did. He also showed her some marks on his back. Some time later the deceased again attended her home and asked her to cancel the call to the police which she refused to do.
She said that she had seen the deceased on 26 May 2011 at approximately 5pm. He had come over for coffee and they had spoken for about four hours "about all things", including that he had told the applicant to "be out by Tuesday". She described the deceased as "swearing. He was upset". She agreed that she had never seen the deceased so angry as on the night he died.
Peter Rofe
He lived in the same street and knew both the applicant and the deceased as acquaintances. He described an incident on 20 May 2011 when the deceased assaulted the applicant. The applicant had been working on his car in the next door neighbour's driveway when the deceased approached him yelling and screaming and waving a metre long stick and then chased the applicant around the van twice. During this the deceased threw the wood at the applicant several times. Mr Rofe said that the incident ended when the deceased threw the wood which knocked the support for the van boot, which came down and hit the deceased on the head. The deceased then walked away towards a neighbour's house. Mr Rofe said that the deceased was yelling at the applicant that he wanted him out of his house, calling him a "piece of shit" and that the applicant was telling the deceased to "settle down".
Mr Rofe said that during this incident the applicant "wasn't aggressive or anything. He was just dodging him and Dale wanted to hit him with a piece of wood". On 26 May 2011 Mr Rofe said that he saw the applicant working on his van in the next door neighbour's driveway for a couple of hours around 2.30 - 3 pm. The applicant appeared to be in good spirits at that time.
Blake Pardey
Blake Pardey did not give evidence but by consent his statement was read onto the record. He lived in the same street as the deceased and described an incident which he had seen a week before the death. He was returning home in a car when he saw the deceased chasing a man down the street and across a paddock with a Samurai sword. He did not recognise the man being chased and described him as a man of Middle Eastern appearance with short black hair, 170 - 175 cms tall.
Julie Pardey
Julie Pardey was the mother of Blake Pardey and lived in the same street as the deceased. She described an incident which she observed on 24 May 2011 when she was driving home. She saw a male chasing another man down the street with a machete. She described the man as "running for his life" and that the person pursuing him "was chasing him like he was ready to kill him". She did not recognise the man running away as she only saw him from behind. She said that he was of medium to solid build. The man who was chasing him had brown skin and long black hair in a ponytail. She said that this man often used to wear his hair in a ponytail. She recognised him as someone who lived in her street.
In cross-examination she agreed that she had seen the man running away once before - he had been looking at some scrap metal in a truck opposite her house. She later reported this incident to the police. She said that it really looked like the ponytailed man was ready to kill the other man.
Kirralee Howley
Ms Howley used to reside with her mother and brother in the street. She said that on 24 May 2011 she was on her way to their home when she observed a male chasing another male down the street with a Samurai sword. She described the man being chased as 160 - 170 cms tall, of solid build with fair skin and very short, light brown hair. She said the man chasing him was 170 - 180 cms tall, very skinny build, tanned coloured skin with black hair in a pigtail or ponytail. She had seen this man a number of times in the street.
Hediye Sonmez
Ms Sonmez lived in the street and knew both the deceased and the applicant as acquaintances. She described the deceased as being approximately 5 foot 8 inches tall, slim, long dark curly hair to his shoulders, sometimes clean shaven, with brown eyes and olive skin. She described the other man living there, whom she knew as Tony, as being of medium build, light brown hair, with blue-green eyes and she thought a little taller than the deceased, although she was not sure.
She was aware that the deceased and the applicant were living together and agreed in cross-examination that the applicant had been living in his van for several months before he moved in with the deceased. She said that on 20 March 2011 the deceased approached her and showed her marks on his back that he said were the result of a fight with the applicant. She recalled a conversation in mid March when the deceased told her that the applicant kept going back to his wife and that he wanted the applicant to move out of his house.
Raylene Gregg
Ms Gregg did not give evidence but by consent, her statement was read. She lived in the street and knew the deceased by sight. She described an incident approximately two weeks before the death when she saw the deceased yelling and chasing a yellow ute down the street, although she was unable to hear what was said.
On 26 May 2011 at some time between 5.30 and 6pm, she observed a heated conversation between two men on the deceased's driveway. As it was dark she had limited vision and could only describe their height and build. She was unable to hear what was said, however, she noted that "the tone of the voices appeared heated" and that the "smaller man also appeared to do more talking than the bigger man".
Michael McCluskey
Mr McCluskey was unable to give evidence as he had passed away before the hearing. His statement was read by consent. He had known the applicant for 20 years and the deceased for 10 years. He said that although the two men were living together, they were not in a relationship - he described the deceased as "gay" but said that the applicant was not. He was aware that the deceased had told the applicant to move out and was waiting for this to happen.
He knew that the two men argued, but he had never seen them be violent towards one another. The deceased told him that the applicant had "given him a clip across the earhole".
On 26 May 2011 Mr McCluskey spent the day with the deceased at the deceased's home. Some time during the morning the deceased bought speed that the two shared. At this stage the applicant was in his bedroom. After the deceased and Mr McCluskey had finished the speed, the applicant came out of the bedroom. He heard the deceased tell the applicant to move out. He said that the applicant "wasn't saying or doing too much while I was there". He helped the deceased to repair a doorbell. When he left the house, he heard the deceased again telling the applicant to leave.
Constable Alan Franklin
Constable Franklin did not give evidence, but his statement in relation to the incident mentioned by Ms Crawford was read. On 20 May 2011 at 7.56pm he attended the street and spoke to the deceased. The deceased told him that he and a friend had had an argument that resulted in his friend hitting him in the back with a stick and chasing him down the street. He refused to give the friend's identity and denied having any fears for his safety. At the constable's request, the deceased lifted his shirt but the constable was unable to identify any marks or injuries.
Also tendered was a CAD or COPS entry of Ms Crawford's report to police and Constable Franklin's report (exhibit D). The CAD identified the applicant as having assaulted the deceased over a "money issue". The report stated that Constable Franklin spoke to the deceased and that the incident had been resolved before police arrived.
Stavan Vora
Mr Vora gave evidence that he was employed by AGL and that on 26 May 2011 he had been door knocking, offering residents AGL products. At approximately 5.15pm he had attended the deceased's home and had a conversation with him for 30 minutes. During the conversation, the deceased filled in paperwork for discounts in the name of Stacey Wells for his property and his sister's property. He produced a keycard in the name of Stacey Wells. During this process, Mr Vora also made two verification calls to the company.
While at the premises, Mr Vora saw two men inside and heard one of the men say goodbye to the deceased and go outside while the other remained inside. In cross-examination he agreed that he also heard noise coming from the garage.
Pastor Eddy Johnson
Eddy Johnson was the applicant's pastor and had known him for five or six years through ADRA (Adventist Development and Relief Agency). He was aware that the applicant attended counselling sessions through ADRA and he had delivered several food packages to him. He was aware that the applicant was a handyman and would collect scrap metal. In the months leading up to 26 May 2011 the applicant told him that he was looking for other accommodation because the deceased was gay.
On 26 May 2011 at approximately 7.15pm he received a telephone call from the applicant who asked him to come over. During this conversation the applicant was difficult to understand as he was sobbing. Pastor Johnson picked up Mr Baker and Mr Taiper and went to the deceased's home. When they arrived, there was no answer so Mr Baker called the applicant on the telephone. Some minutes later, the applicant approached them and the evidence of Pastor Johnson was as follows:
"A. Then I said, "What's going on, what's happened Anthony" because he was sobbing. He was incoherent to some extent and was not saying exactly and I said, "Tell me what happened, Anthony, tell me what happened". About that time we had moved away from the house. We had crossed the road and he said, "I want to die, I want to die. Give me a rope, find me a rope".
Q. Did you say anything about what had happened?
A. I said, "Anthony talk to me, please tell me what happened." Then he said - he came at me with a knife and slashed my arm. So I let go, I think because of the words he used and in the wrestling I stopped him".
Q. Do you recall him saying anything else?
A. No and then he kept repeating, "I want to die, I want to die".
Q. Did you ask to see his arm?
A. Yes I did. I saw kind of blood on his sleeves and I said "Anthony let me
see what's there." And he rolled up his sleeves and I could see a slash on his left arm and there was blood on the sleeves and yes, I did.
Q. Do you recall him saying anything else about what happened with the knife?
A. No, that's about just what he said, "I stabbed him, I stabbed him", but he was very distraught." (T.192.34 - 193.9)
Later Pastor Johnson said:
"Q. Pastor Johnson, I asked you a question about what Anthony said to you happened and you told the jury that he took a knife and slashed -
A. - slashed my arm.
Q. What else did Anthony tell you during that particular conversation?
A. Somehow I got the knife away from him and I took the knife and then I stabbed him.
Q. Can you recall anything else that he said to you during that particular conversation?
A. I'm not sure, and I didn't report that because I wasn't too sure, but there may have been something like we struggled a little bit, but I wasn't too sure at the time." (T.196.9 - .21)
Pastor Johnson was taken to the statement which he had made to the police and he was asked to read it to himself. He then gave the following evidence:
"Q. Does that refresh your memory as to the whole conversation?
A. Yes, I think it does, yes.
Q. Did he say anything else to you?
A. I don't recall anything specific.
Q. But what you have said in that particular sentence in your statement, do you notice there is something extra there that you didn't give in evidence?
A. "I lost it".
Q. Is that what he said?
A. Yes, "I lost it", yes.
Q. Just so we get it in context, if you could turn that statement over. We will mark that. Can you now perhaps try to put it in context that conversation that he used from the beginning?
A. I asked him, "Talk to me, talk to me" meaning what happened.
Q. Yes?
A. And he said he slashed my arm with a knife. "I lost it then. I took the knife and I stabbed him"." (T.197.12 - .32)
Following this conversation, the group went to the next door neighbour's house and the police were called. Pastor Johnson described the applicant as having his head in his hands and sobbing throughout this period. He said that when he spoke to the applicant he was distraught, incoherent and was sobbing.
Amos Baker
Mr Baker said that he knew the applicant through a counselling group run by Pastor Johnson and was aware that he was a handyman and collected scrap metal. He said that he had dropped off a food parcel to the applicant on 24 May 2011 and at that time he had been in "great spirits".
On 26 May 2011 he attended the deceased's address with Pastor Johnson and Mr Taiper at approximately 8pm. He was the first to reach the front door and noticed blood stains on the ground. He telephoned the applicant to let him know that they were outside. The applicant approached them from the road and had a conversation with Pastor Johnson before the four of them walked into the neighbour's house from where police were called. Mr Baker said "We have to call the police" and the applicant had responded "We can ring the coppers there at a friend's house". Mr Baker said the applicant was sobbing and said words to the effect of "Get me a rope". He also observed that the applicant had a towel wrapped around his forearm, although he did not see the injury itself.
Vidyanand Taiper
Vidyanand Taiper said that he was a qualified nurse and knew the applicant through ADRA. On 26 May 2011 he attended the deceased's home with Mr Baker and Pastor Johnson. When he saw the applicant, he examined his left arm noting a deep lacerated wound on his forearm.
Senior Constable Wal Michelotti
Senior Constable Michelotti said that when he and Acting Sergeant Cook attended the neighbour's house, the applicant was sitting with his head in his hands crying and with a towel wrapped around his arm. His evidence as to what then happened was:
"Q. Did you say: "Anthony, what's going on"?
A. I did.
…
Q. Did Anthony mumble his words which you couldn't understand?
A. That's correct, he mumbled, yes. I asked him to repeat it.
Q. Did you say: "Anthony, I don't understand what you are saying, stop crying and tell me again"?
A. Yes I did.
Q. And did the accused say: "I stabbed my friend, I think I killed him"?
A. Yes he did.
Q. Did the accused start crying again?
A. Yes he did.
Q. Did you say: "Anthony stop crying, and tell me again what happened"?
A. I did.
Q. Did the accused say: "I had a fight with my friend. I was defending myself and I stabbed him"?
A. Yes he did.
Q. Did you say: "What is your friend's name, and where is he now"?
A. Yes I did.
Q. And did the accused say: "Dana is at our place"?
A. Yes he said that, yes." (T.224.36 - 225.15)
Senior Constable Michelotti and Acting Sergeant Cook then attended the deceased's home and searched the premises. They located the deceased face up on the lounge.
Acting Sergeant Jason Cook
He gave evidence that when he and Constable Michelotti saw the applicant he was crying, had his head in his hands and was mumbling and rocking. His forearms were wrapped in towels soaked in blood. Sergeant Cook's evidence was:
"Q. Did Senior Constable Michelotti say to him "stop crying and tell me what has happened"?
A. That is right we couldn't understand what he was saying so we were trying to settle him down.
Q. Did he say these words "I killed my friend I stabbed him. He is up the road. I killed him. I stabbed him"?
A. Yeah something like that, yes.
Q. You eventually went to the premises …
Q. I want to you ask you some questions about the knife that you saw close to the body of the deceased. You saw that there was a person lying on a lounge face up?
A. Face up correct.
Q. And he had a blanket covering him?
A. There was a blanket covering him, yes.
Q. Do you recall seeing a blanket over the bottom half of his body with a knife on top of the blanket to the right hand side of the blanket?
A. That is right, yes. (T.231.36 - 232.32)
Matthew Holmes
Matthew Holmes knew the applicant through the counselling group run at ADRA. On 26 May 2011 at 6.08pm, Mr Holmes telephoned the applicant. During this call the applicant sounded "really distressed". He said "I've done something" and "What have I done". The applicant did not detail why he was distressed and the decision was made to call Pastor Johnson. Mr Holmes called Pastor Johnson and requested that he attend the deceased's home before calling the applicant back. Mr Holmes then attended the deceased's home to speak to the applicant.
When Mr Holmes arrived, the front door was open. He entered the house looking for the applicant and noticed drops of blood in the hallway and found the deceased lying in the lounge room covered by a blanket. He shook the deceased and put the blanket back on him and then left. He did not recall seeing the knife. As he left the house, the applicant approached him. Mr Holmes told the applicant that Pastor Johnson was on his way and the applicant agreed that he would call the police.
Shireen Doyle
Ms Doyle was one of the ambulance officers who attended the scene. She confirmed that the deceased was dead and attended to the applicant. She concluded that the applicant was intoxicated, consistent with having been drinking and having taken two valiums. Both the applicant's forearms had been bandaged with some fabric and required re-bandaging. Ms Doyle said that one of the cuts was quite deep but it had not caused any tendon damage, or anything that required micro surgery.
Jacqueline Borsato
Ms Borsato was a member of the nursing staff at Blacktown Hospital Emergency Department. When she saw the applicant, he was on a trolley, curled up in a ball crying. Her evidence was:
"Q. Did you introduce yourself to him and say: "Can you tell me why you are here"?
A. Yes.
Q. And did he say: "My flatmate stabbed me"?
A. Yes.
Q. Did you say: "Can you show me where"?
A. Yes.
Q. Did he roll up his sleeves, and could you see his arms were bandaged from the ambulance officers?
A. Yes.
Q. It was obvious to you that there was a wound to his left forearm and three to his right arm?
A. Yes.
Q. Did you ask him whether he had injuries to other parts of his body?
A. Yes.
Q. Did he say that there were none?
A. Yes, that's correct.
Q. Did he have a red mark on his left eye, and down his cheek?
A. Yes.
Q. Did that appear to be a recent injury?
A. Yeah.
Q. Did he have superficial scratch marks about his body, on his chest?
A. Yes.
Q. Could you say whether they appeared to be recent or not?
A. They looked recent, yeah." (T.249.37 - 250.18)
Ms Borsato was asked to read out what she had written at the time of the applicant's admission:
"A. Patient brought in by ambulance in police custody with one deep laceration to the left arm, three superficial cuts to the right arm, superficial scratch marks to his arms after alleged assault with flatmate. Patient states wounds were from flatmate stabbing him with a knife. Patient denies loss of consciousness GCS15. Patient is calm and cooperative. Patient distressed and crying. Patient states having a sore neck. Patient has red bruising on left eyelid and down left cheek under eye." (T.253.5 - .11)
The applicant told her that he had taken a valium tablet after the incident.
Constable Tim Hansell
Constable Hansell attended Blacktown Hospital with the applicant and remained with him as he received treatment before escorting him to St Marys Police Station. On the journey to the hospital, the applicant was curled up on the ambulance stretcher crying. When asked by the admitting nurse "What happened tonight?", the applicant said "Got in a fight". He observed that when the doctors examined the wounds to his arms, it caused the applicant a great deal of pain.
Senior Constable Darren Booth
Senior Constable Booth said that he attended the deceased's home on 26 May 2011 and spoke to the applicant:
"Q. Did you say "I'm going to ask you some questions about what happened down the road. I am Senior Constable Booth and this is Senior Constable Krauce. We are from Blacktown Police"?
A. Yes I did.
Q. Did the accused say: "I was just sitting in my room and they were outside shooting up and he came at me and cut me and I grabbed the knife and stabbed him"?
A. Yes he did.
Q. Did you say, "You do not have to say or do anything you do not want to, do you understand" - did he say "yes, yes I'm so sorry"?
A. Yes he did.
Q. Was he then placed under arrest?
A. Yes he was." (T.260.32 - .47)
Constable Mathew Krauce
Constable Krauce took several photographs of the applicant's arms at the deceased's home. He gave this evidence:
"Q. Constable, outside the premises at number 15, did you hear Mr James say: "I was just sitting in my room and they were outside shooting up and he came at me and he cut me and I grabbed him and stabbed him I am so sorry"?
A. Yes.
Q. And then did Senior Constable Booth caution?
A. He did the first part and then I did the second.
Q. All right, did he then say, Mr James then say "yes yes I'm so sorry"?
A. Yes." (T.263.42)
Senior Constable Bradley Jorgenson
Senior Constable Jorgenson conducted a search of the deceased's premises. During the search he located a handwritten note in the bedroom, addressed to the applicant which read as follows:
"Tony,
I'm tired of you kicking me in the teeth all the time, I've told you before that if you and [Kelly or Kerry] get back together I want you to move out. Stop lyeing [sic] to me and to yourself. She only wants you 'cause your [sic] getting that money when it's all gone you'll be back[?]"
Detective Senior Constable Scott-Mahjet
Detective Senior Constable Scott-Mahjet was the officer in charge of this matter. The applicant's interview was played during Detective Sergeant Constable Scott-Mahjet's evidence. Throughout the ERISP the applicant can be heard crying and is very distressed. When the transcript records "no audible reply", the applicant can be heard sobbing.
Through Detective Scott-Mahjet a summary of the DNA findings was tendered (exhibit J). Profiles matching the DNA profiles of both the applicant and the deceased were found on the knife taken from the blanket covering the deceased in the lounge room. Detective Scott-Mahjet was able to confirm that the 000 call was made by the neighbour at 8.16pm. Through him a record of an SMS sent from a pay phone to the applicant on 20 May 2011 at 1pm was tendered and became exhibit L. It read:
"YOU HAVE UNTILL 2PM TO GET My money 2me my family chucks your things on the road dale"
Detective Scott-Mahjet agreed that the note found in the deceased's room had not been forensically tested and that he was unable to say whether the applicant had seen the note. He agreed that when taken to the interview room at the police station, the applicant "lay down on his hands, face down" and did not look up or make any answers to the police questions.
The applicant's ERISP
This was played to the court during the hearing of the appeal and I have subsequently listened to it on two occasions. I have concluded that the manner in which the applicant answered questions supports the observation of witnesses at trial to the effect that he was genuinely very upset and distraught over the death of the deceased. The interview commenced at 9.10pm on 26 May 2011.
The relevant parts of the interview are as follows:
"Q13 All right. And what was it that you told them when they asked you
what happened?
A. There's a. We had a fight.
Q14 Who had a fight?
A Me and Dale. He was going off his head because I was packing up.
And then he um, went off and he had a knife and he slashed me. And
I just didn't know what to do next. So I just, I took it a couple of times.
Q15 What did you take a couple of times?
A A couple of slashes to me arms.
Q16 Yes.
A. 'Cause I didn't really want to fight, mate. You know what l mean?
And then after a couple of times I just didn't know what to do, man. I
just, I didn't know what to do.
Q17 And what happened from there?
A I just stabbed him, stabbed him.
Q.18 And whereabouts did you stab him?
A (NO AUDIBLE REPLY)
Q19 You're indicating the left side of your chest.
A I think so, yep.
Q20 Sorry?
A I think it was his side.
Q21 In his side. That's where you've just indicated on your person. Do
you agree with that?
A (NO AUDIBLE REPLY)
Q22 You're nodding your head.
A Yes
…
Q24 Now Anthony, why did this happen?
AI I don't really know. He was pilled off his, he was drugged up and he
was shooting up there this afternoon, and drugged up and just
arguing. I was packing up 'cause I wanted to move out. I've been
waiting to get out of there.
Q25 And why was that?
A Because he keeps like putting it on me and stuff like that.
Q26 When you say putting it on you what are you referring to?
A Like sexual advances and shit like that, mate.
…
Q29 How many times did you stab Dale, Anthony?
A Just once.
Q30 And what did you stab him with?
A A knife.
Q31 And where did you get that knife from?
A I grabbed it off him.
Q32 And can you tell me how that took place?
A Oh, we were just going everything was just going mental and he
slashed me a couple of times and I just didn't know what to do, I just
didn't know whether to keep on letting him slash me or not.
Q33 Right.
A You know what I mean? I tried to take it but I just didn't know what to do.
Q34 How many times did he slash you?
A Maybe about three or four times.
Q35 All right. And do you agree that you've got some white crepe
bandages on both your forearms?
A Yes.
Q36 And how did they come to be there?
A Um, the ambulance lady just done it.
…
Q40 And do you recall what time this happened this evening?
A Oh, probably about, I don't know, about three quarters of an hour I'd
say before youse come.
Q41 All right. And what did you do after it happened?
A I come up here to see me neighbour.
…
Q49 …Now Anthony we were talking about what you said to Alan, Alan Jones.
A Yep.
Q50 Now what was it that you said to him when you got to his
place?
A Exactly what I said to you.
Q51 And can you repeat for me what that was?
A That Dale was going off his head and slashed me a couple of times
and I took it a couple of, like I took a couple of slashes because I
didn't know what to do. I didn't know whether to respond or just to
take it.
Q52 Yep.
A And then after a couple of times I seen this one was really open.
Q53 Yep.
A And I thought it was a bit too dangerous to be just copping it.
Q54 Yep.
A So I grabbed it and stabbed him.
Q55 All right. So are you telling me that you were just standing there
taking it?
A Yeah.
Q56 And whereabouts in the house was this happening?
A In the lounge room.
Q57 O.K. And where did, where did Dale end up?
A Fell on to the lounge.
Q58 Did he?
A (NO AUDIBLE REPLY)
Q59 All right. How on the lounge? I haven't seen him so -
A He just fell back all over the lounge.
Q60 All right. Now the, the knife that you used to stab Dale, was
that the same knife that he attacked you with?
A Yeah.
Q61 Where did that come from?
A I don't know.
Q62 Do you know where Dale got it from?
A It was in, it was in the house.
Q63 Do you know whereabouts in the house?
A No, I wouldn't have a clue, mate. He was going off his head going
right through the house, tearing the house up and stuff like that. You
know what I mean?
Q64 Yep. So is there damage up at the place is there?
A Yeah, the whole house has been trashed. He was trashing it all
afternoon, mate.
Q65 Oh, O.K. How long had the two of you been at home together this
afternoon and tonight?
A Not long. He had other people up there like taking drugs and stuff.
So I come down here and just to avoid it, mate, I didn't like the, you
know, the situation.
…
Q73 O.K. All right.
A 'Cause I stayed in me room 'cause he was going, I knew he was
going off his head and blah, blah, blah and you know what I mean, I knew, I started packing me stuff and that. And um, you know what I mean, I don't think he wanted me to move out. And he was just-going off his head, you know, it was more like, it was really hard to read, it was like um, he was jealous that I was moving out or something, man. You know what I'm saying?
…
Q78 O.K. And when did this problem start between you and Dale today?
A When he come home this afternoon in a mood.
…
Q83 O.K. All right. And can you tell me how it was that you stabbed Dale
with the knife?
A What do you mean?
Q84 How did you do it?
A I just grabbed it and went like that.
Q85 All right. So you've indicated with your right hand.
A Yeah.
Q86 Are you right handed or left handed?
A Yeah, right handed.
Q87 O.K. Did you have the knife in your right hand?
A Yep.
Q88 All right. And you indicated just then a type of sideways motion.
A Yeah, I just, sort of like swung it at him.
Q89 O.K. And what was your um, what were you trying to do by doing
that?
A I didn't really have any intentions to do anything really.
Q90 All right.
A It was just, it was reflex really.
Q91 Yep.
A It was just, I don't know, I was scared, I was confused. I didn't know
really what to do, man.
Q92 All right.
A Honestly, I didn't know what to do, mate.
Q93 And how were you sort of feeling at the time that you stabbed him
with the knife?
A Fucken terrible, mate.
Q94 And, you right? What was it that you were trying to do with the knife?
A Just protect meself.
Q95 All right. And how many times did you swing it at him?
A Just once.
Q96 How close together were the two of you when you did this?
A Probably the same as me and you.
Q97 All right. And how were, how were each of you positioned in relation
to each other?
A Sitting, standing facing, like -
…
Q101 I think you said before you stabbed him in the left side of his body as
he was facing you. Is that right?
A Yep.
Q102 You're nodding your head back and forward.
A Yes, yes, yep.
Q103 Yep. O.K. Now what was it that you were trying to do by trying to get
him with the knife?
A I was just trying to swing it around and like just scare him back. But I
think he stepped in or something. He was just going wild, mate. I
don't know what really happened, mate, it just went so quick. I just
don't know what happened.
Q104 Yep. How does he compare in size to you?
A We're about the same size I think.
Q105 All right. O.K. Now -
A But mate, he goes right off his head, when he's on pills and shit,
mate. When he's on drugs he goes right off his fucken head, mate.
He come down here and he attacked me down here the other night
and shit like that, mate.
Q106 Yep.
A He's done it, he's done it a few times, man.
…
Q113 Yep. All right. What were you intending to do by trying to get him
with the knife?
A Keeping a distance, get him away. You know what I mean? Like -
Q114 Were you trying to injure him?
A No way, man.
Q115 Well if you weren't why would you do that?
A I was just trying to like swing it in front of him.
Q116 Yep.
A But he's gone like that.
Q117 Yep.
A Like grabbing -
Q118 You're sort of indicating that he, that he sort of jumped at you with his
arms up?,
A Yeah, he just went like that. And I went … and I just went to swing it
like that.
Q119 Yep.
A And I think I got him in here somewhere.
Q120 So it's gone into his side under his left arm has it?
A (NO AUDIBLE REPLY)
Q121 That's what you're sort of indicating to me.
A Yeah.
Q122 Yep. All right.
A And he just fell back on the lounge and I grabbed him, I grabbed him
and I just didn't know what to do for Dale.
Q123 Did he say anything to you?
A (NO AUDIBLE REPLY)
Q124 No. How hard did you stab him with the knife?
A It didn't feel hard.
Q125 Sorry?
A It didn't feel hard.
Q126 O.K. Was it your intention to kill him?
A No way, man.
Q127 I've got to ask you, Anthony.
A No way, man. I wouldn't kill no-one.
Q128 Yep. Was it your intention to injure him?
A No. No.
Q129 Did he say anything to you after he got stabbed with the knife?
A No.
Q130 Anthony?
A No.
Q131 No. What happened to him after you stabbed him with the knife?
A He just laid down.
Q132 Did he lay down of his own accord or did he fall down?
A He fell back and I just grabbed him. I said, Dale, Dale, what's going
on? What's going on? What's happening?
Q133 Yep.
A And I grabbed him and I tried to feel him to see what happened.
Q134 And was the knife still inside him or did you pull it back out?
A I, I don't know … fell out or something. I don't really know, man, it
just happened so quick. I don't know.
Q135 Mmm. So after he fell down on the lounge what did you do then?
A I shit meself. I just didn't know what to do, man. I was bleeding so I
wrapped the shit around my arm just panicking, I didn't know what to,
I didn't know what to do, man.
Q136 Yep.
A I just didn't know what to, I didn't know what to do, man. I didn't know
what to do.
Q137 Yep. Did you make any phone calls?
A I come down here, I rang, I didn't know who to ring, I didn't know what
to do.
Q138 So you came down to Alan's.
A I rang my Pastor.
Q139 Yep.
A From church and that to come and -
Q140 Did you ring the ambulance?
A No. They, they rang up.
Q141 All right. Did you ring the ambulance or the police?
A No. They did.
…
Q146 Yep. All right. Is there anything, at this stage is there anything further
you wish to say about the matter that we've spoken to you about?
A I'm so sorry, man. I'm just fucken so sorry.
Q147 All right. When, just one other thing -
A Please forgive me, man. I'm so sorry. I'm so -
Q147 …when, when Dale fell back on the lounge, did you know he was
dead?
A He started bleeding from the mouth and I was shaking him, Dale,
what's happening. He wasn't moving."
Dr Shamim Farooq
Dr Farooq did not give evidence but his statement was read. He was the treating doctor at Blacktown Hospital, who examined the applicant. He noted three lacerations to the right forearm that required stitches, and one laceration to the left forearm that required stitches and complaints of neck pain. Dr Farooq said that he was unable to obtain a history from the applicant because he was "in shock and too distressed".
Dr Riane Van Vuuren
Dr Van Vuuren was the forensic pathologist who conducted the post-mortem examination of the deceased. She determined that the cause of death was a single stab wound to the left posterior lateral aspect of the chest and that moderate to severe force would have been required to inflict the wound. She agreed that swinging the knife around in a sideways action could be consistent with the wound and that it was possible that the deceased's arm was raised at the time the wound was inflicted.
In addition to the stab wound to the chest, Dr Van Vuuren observed that the hyoid bone was fractured and that there was a small contusion over the fracture. She said that this injury is usually caused by manual strangulation and said that moderate to severe force would be required to inflict it. She said that a contusion was like a bruise. She could not rule out the possibility that this injury occurred as a result of squeezing and pushing in a defensive action.
Her evidence on this issue under cross examination was:
"Q. But again I put a proposition to you, or an action to you, could you tell me whether or not you agree or disagree about the likelihood of the injuries having occurred in that manner?
A. Okay.
Q. My left arm out, because these are injuries to the right side of the deceased. Assume for a minute that the accused has a knife in his right hand?
A. Yes.
Q. And his left arm is free. If his left arm is out, if he were to grab the deceased underneath the chin --
A. Mmm.
Q. -- and push or squeeze. So I am talking about an action where my hand is outstretched, the palm is open, and the thumb and the index fingers are splayed out if you like, or at their widest?
A. Yeah.
Q. And grabbed the neck of the deceased, or even grabbed the neck and the clavicle, the area between your shoulder and the neck?
A. The clavicle is the bone.
Q. What is the stringy bit in between?
A. We call it that the super clavicle area.
Q. Grabbing around the neck first and squeezing and/or pushing, could that explain some of the injuries that you saw?
A. The squeezing would more account for the injuries, not the pushing.
Q. There could have been squeezing and pushing?
A. Yes.
Q. And you cannot rule out the possibility that if the injury occurred in the manner I suggested with the arm out and the fingers are under the neck and the hand under the neck, you cannot rule out the possibility that that occurred in a that defensive motion or defensive action, can you?
A. No, you cannot.
Q. Indeed, I think you said a few moments ago, or you volunteered a few moments ago, the observation that it is unlikely, very unlikely, that the deceased and the accused would have been standing still during the struggle?
A. Yes.
Q. And I respectfully suggest that it is highly likely that they were exerting pressure on perhaps - sorry, that it is likely that they were moving around either forward to back or side to side, when these injuries occurred?
A. That's right.
Q. Do you agree with this as a general proposition; I think you said the hyoid bone it is a small bone above the Adam's apple?
A. Yes.
Q. The bone calcifies as you get older?
A. Yes, it does.
Q. So it is easier to injure that as you get older?
A. It is easier to break it, yes." (T.318.19 - 319.41)
Dr Van Vuuren observed other injuries on the deceased comprising superficial injuries to the left palm, thumb and index finger which she said were consistent with self defence wounds. There was a 3mm abrasion under the jaw, a cut on the lip and nose and an abrasion above the left eyelid. She said that also present on the deceased's body were both recent and old injection marks and that during the post-mortem examination, she observed changes in the body consistent with intravenous drug use. She said that the methylamphetamine level found in the deceased was potentially toxic.
Dr Judith Perl
Dr Perl was the forensic pharmacologist who analysed the findings at post-mortem in relation to drugs. Present in the deceased's blood was amphetamine at .003 mg/l, methylamphetamine at .24 mg/l, seven-aminoxlonazepam .07 mg/l and delta-9-THC. Dr Perl said that the level of methylamphetamine was in the toxic range and was consistent with the deceased having used the drug that day. She said that the methylamphetamine was partly metabolised which requires the consumption of methylamphetamine at least two to four hours before his death. She was not able to comment on the level of intoxication from the blood reading alone.
Dr Perl described the various stages of the effects of methylamphetamine. She could not rule out the possibility that the deceased had had more than one dose of methylamphetamine. Based on Mr McCluskey's statement, if the use of methylamphetamine had occurred around midday, the deceased would have been past his peak level of intoxication and would have been commencing his withdrawal stage. If, however, the deceased's use was later in the afternoon, he may have been at around his peak level of intoxication at the time of his death. With such a high methylamphetamine concentration, it was possible that the deceased would have been displaying argumentative and possibly aggressive behaviours.
Dr Perl gave evidence concerning the intoxication of the applicant based on samples taken on 27 May 2011. The applicant's samples contained .03 mg/l methylamphetamine, the bi-products of valium and anti-depressants and a low level (.01 mg/l) delta-9-THC. Based on the level of methylamphetamine in his system and the ERISP, Dr Perl did not expect the applicant to have had any significant impairment of his cognitive function at the time of the incident.
Alan Jones
The deceased's next door neighbour, Alan Jones, did not give evidence but his interview with police was played and the transcript became MFI 18. He knew the applicant quite well and the deceased as an acquaintance. The applicant used to mow the lawn and assist him and his brother with the car. The applicant did not have a good relationship with the deceased, due to friction over money, and he had wanted to move out of the property. He recounted an incident when he saw the deceased throw "a hunk of timber" at the applicant while the applicant was working on his van at the Jones house. On 26 May 2011 the applicant had been working on a car for him. He returned to his house promising to return. That evening the applicant returned to the Jones house shaking and crying and asked him to call Pastor Johnson. When asked what had happened, the applicant told him "I've hurt Dale". Mr Jones saw a cut on the applicant's arm. When Pastor Johnson arrived, he told Mr Jones to ring the police and Mr Jones rang 000. In that call he said "Tony's murdered someone".
Robert Jones
Robert Jones is the brother of Alan Jones. He did not give evidence but his interview with police was played and the transcript became MFI 19. He had known the applicant for approximately 30 years and had met the deceased a couple of times. He recounted an occasion when the applicant had been working on the car in the Jones' driveway when the deceased "picked up a stick and well about six foot long, seven foot long, threw it at Tony". He said that he had seen the deceased "have a go at him out the front twice".
On 26 May 2011 the applicant had been working on the car in the Jones' driveway and had left at approximately 5pm. When the applicant returned to the Jones' house, he was asleep and woke up to his brother speaking to the applicant. He had never seen the applicant so upset. He noticed that the applicant had a bloodied bandage around his arm.
Exhibit F comprised coloured photographs of the applicant's arms, taken on the night of the incident. The left arm shows a very large and deep cut. The right arm shows three cuts which are deep but not as deep or as long as that on the left arm. There are also other smaller scratches on the right arm.
THE APPEAL
Ground 1 - The verdict was unreasonable and cannot be supported having regard to the evidence.
In his submissions, the applicant divided the evidence into four categories. The following is a summary of the submissions made in relation to each of those categories.
The relationship evidence
The relationship between the applicant and the deceased was a volatile one. There was evidence, mainly based on hearsay complaints by the deceased to others, especially his family, that the applicant had been violent towards him. There was only limited evidence from witnesses who had actually seen the applicant act violently towards the deceased.
There was evidence that the deceased had acted violently towards the applicant. Peter Rofe gave evidence of seeing the deceased chase the applicant around a car with a piece of wood and the Jones brothers witnessed conduct to similar effect. There was evidence of the deceased chasing a man, who loosely resembled the applicant, down the street with a Samurai sword or a machete (evidence of Blake Pardey, Julie Pardey and Kirralee Howley). This observation was made only two days before the incident. Given the evidence as to the deceased having a ponytail, it is difficult to imagine who the person being pursued could be other than the applicant. Ms Pardey recalled the man she had seen pursued by the person with the ponytail was the same person she had previously seen looking at scrap metal in a truck. There was evidence from a number of witnesses that the applicant had an interest in scrap metal.
There was evidence that the deceased was asking the applicant to move out. There was some ambivalence in this evidence, particularly in the light of the letter found in the deceased's bedroom (exhibit G). The suggestion in that letter was that the deceased was hopeful of the relationship with the applicant continuing. There was evidence that the deceased was very angry with the applicant on the day that he was killed. Sandra Crawford said that she had never seen him so angry as on that night.
The deceased's amphetamine use
The deceased had a high level of methylamphetamine in his blood at the time he died. Dr Perl agreed that at such a high methylamphetamine level, it was possible that the deceased would be displaying argumentative and possibly aggressive behaviour. There was no evidence at trial that the applicant had consumed amphetamine that day.
The deceased's and the applicant's injuries
The deceased had a broken hyoid bone, which was consistent with manual strangulation. In cross-examination Dr Van Vuuren could not rule out the possibility that this injury occurred as a result of the applicant using his left hand to hold and squeeze the deceased's neck while he was attempting to fend off the deceased with his right hand or, had the knife in his right hand.
Dr Van Vuuren's opinion was that the direct cause of death was a single stab wound to the left posterior side of the chest. The deceased's other injuries were described as "superficial". The injuries to the deceased should not be considered in isolation, but in the context of the injuries to the applicant. The wounds to the applicant's arms, in particular the left arm, could not be described as superficial. There was no suggestion that they were self inflicted, nor could there be.
The injuries to the deceased and the applicant did not support the Crown scenario that the applicant attacked the deceased, that the deceased had slashed out at him with the knife and that the applicant had wrestled the knife from him and stabbed him. Not only was there no evidence to support this hypothesis, there were some obvious difficulties with it. The injuries to the deceased, leaving aside the fatal stab wound, were quite limited. The applicant posed the question "If he was the aggressor and was strangling the deceased in the lounge room, how did the deceased get access to a knife?" More consistent with the physical evidence and the pattern of injuries to the applicant and the deceased was that the deceased had attacked the applicant with a knife, which he had brought with him into the lounge room, probably from the kitchen. The deceased inflicted injuries to the applicant's arms as the applicant attempted to ward off the blows. The applicant managed to wrestle the knife from him and in the course of what in effect was a life and death struggle, he inflicted a single knife wound to the applicant which was fatal. In the course of that struggle, the applicant had grabbed the deceased around the neck with his left hand fracturing the hyoid bone.
The applicant's account
The preceding hypothesis is essentially what the applicant said to those persons to whom he spoke on the night of the incident and in his ERISP, i.e. the deceased had attacked him with a knife, that he had no intention of injuring or killing the deceased but was simply acting to protect himself.
Crown submissions
The following is a summary of the submissions by the Crown.
The effect of the relationship evidence was that over a long period of time, the applicant had acted violently towards the deceased. The deceased wanted the applicant to leave his home but the applicant was unwilling to do so. On the day of the incident, these matters had come to a head. The relationship evidence showed that the applicant was not only capable of acting violently towards the deceased but had done so.
The injuries suffered by the deceased supported the Crown case. A single stab wound to the left back side of the chest, which required "moderate to severe force" to inflict, was not consistent with the applicant just trying to get the deceased away from him and was more consistent with a deliberate swinging of the knife with an intention to injure the deceased.
The Crown relied upon the fracture of the hyoid bone on the right side of the deceased's neck. Dr Van Vuuren said that normally a fracture to the hyoid bone is occasioned by manual strangulation because the bone is protected by other tissue. She did not agree that a simple pushing action would be sufficient to cause such a fracture. There were other superficial injuries to the palm of the left hand of the deceased, consistent with defence wounds. This was indicative of the deceased grabbing at the knife trying to deflect it from his body. The Crown submitted that these injuries were not consistent with the version given by the applicant in his ERISP.
The applicant was unable to explain why he waited approximately two hours before the police were contacted. He said nothing about trying to render assistance to the deceased. The DNA evidence in the house showed that the applicant must have at least gone into the bathroom after the killing and before the police arrived. It was not the applicant who contacted the police, but other people.
The Crown submitted that the applicant gave a number of accounts of his version of events after the death, which were not consistent. The Crown relied upon the evidence of Pastor Johnson that when he asked the applicant what had happened, he was told "I lost it then. I took the knife and I stabbed him". The Crown submitted that the distress of the applicant, which was observed following the incident, was not inconsistent with an intention to inflict serious bodily harm upon the deceased. The Crown submitted that the distress was equally consistent with the applicant realising the consequences of his actions and likely punishment.
The Crown relied upon the following topics in order to prove beyond reasonable doubt that the applicant intended to inflict grievous bodily harm when he stabbed the deceased and to negate self defence beyond reasonable doubt. These were the relationship evidence, the fact that the applicant had a "black belt", the recreational drug use, that the deceased wanted the applicant to move out, that the applicant had brought a knife into the house when he moved in, the details of the machete/Samurai sword incident, the events on 26 May 2011 before the killing, the events after the killing, the versions given by the applicant, the post-mortem evidence and the evidence of Dr Perl. The Crown particularly noted that the version of events in the ERISP had not been tested by cross-examination or otherwise.
The Crown submitted that there were a number of good reasons why the jury would not have accepted the truthfulness of what the applicant said in his ERISP. The applicant's statement that he was the one who wanted to move out was inconsistent with the deceased's complaints about him not moving out and the evidence of family members concerning their attempts to eject him. The Crown relied upon exhibit G (the letter found in the applicant's bedroom) which in its terms told the applicant to leave the premises. The Crown relied upon the denial by the applicant of any homosexual relationship with the deceased, which was clearly false. His stated disapproval of the deceased's drug use was inconsistent with the evidence that both he and the deceased were drug takers and with his blood test results.
The Crown submitted that there was an inherent implausibility in the account given by the applicant of what happened. The Crown submitted that had the applicant been attacked by the deceased wielding a knife, he would not have remained still or inactive while the deceased slashed his arms. The Crown submitted that such a version would be difficult for a jury to accept, i.e. that a person would stand still while being repeatedly slashed with a knife. This was particularly so when he was reported as having told people that he was black belt qualified in karate.
The Crown submitted that the alternative theory as to what occurred put forward by the applicant was clearly not accepted by the jury. The Crown case in its turn relied upon the nature of the injury, the strength required to inflict it, its location and the weapon used, to establish beyond reasonable doubt that the act of stabbing the deceased was done with an intention to inflict grievous bodily harm. The Crown relied upon, inter alia, the relationship evidence, the relative size and weight as between the deceased and the applicant, and the fact that the applicant had disarmed the deceased before his death, to establish beyond reasonable doubt that the applicant did not act in self defence. The Crown submitted that the jury was not bound to accept the applicant's version of events in his interview with police and that there was a proper basis for the jury to reject his version.
Consideration
The question for this Court 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 applicant was guilty of murder. This is a question of fact. In considering this ground, the Court must undertake its own assessment of the sufficiency and quality of the evidence. In M v The Queen [1994] HCA 63; 181 CLR 487 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said:
"7 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."
This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act 1912 in MFA v R [2001] HCA 53; 213 CLR 606 at [58]. McHugh, Kirby and Gummow JJ said that the reference to "unsafe or unsatisfactory" in M v The Queen 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". These principles were more recently re-affirmed by the majority of the High Court in SKA v The Queen [2011] HCA 13; 243 CLR 400.
For the reasons which follow, I have concluded that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder.
The relationship evidence did not establish that the applicant had a propensity to act violently towards the deceased. Rather, it established that the relationship between them was volatile and had resulted in physical violence being directed by each of them against the other. The effect of the relationship evidence was that the deceased was just as likely to act violently towards the applicant as the applicant would towards the deceased.
There was undoubtedly a body of evidence to the effect that the deceased told members of his family and Mr McCluskey that he wished the applicant to leave his home. The balance of the evidence on this subject is at best equivocal. Despite the actions of the deceased's family, following the night of the cocktail party, the applicant was still residing in the home at the time of the incident. Of particular significance is the deceased's letter, exhibit G. Regardless of whether that letter was ever read by the applicant, it highlights the ambivalent nature of the deceased's feelings towards the applicant. At one level the letter was telling the applicant to leave the premises and at another, it expressed an expectation that having discovered his wife's duplicity, the applicant would return. In my opinion the relationship evidence, while providing support for the Crown case, provides equal support for the applicant's description of what occurred.
The pharmacological evidence from Dr Perl does not assist the Crown case. It makes clear that the deceased had consumed a substantial quantity of methylamphetamine during the day which had the potential to give rise to argumentative and possibly aggressive behaviours. The observations of Stavan Vora on the day of the incident supports other persons besides the applicant being in the deceased's house during the afternoon of 26 May, which is consistent with the applicant's description of the deceased's drug taking. There is the evidence of Ms Crawford as to the deceased's enraged state when she saw him on the afternoon of 26 May.
These matters favour the version of events given by the applicant, rather than the Crown case theory.
The Crown's criticism of the applicant's ERISP does not withstand scrutiny. The applicant's disapproval of the deceased's drug taking is not surprising in circumstances when he was making a statement to the police. His denial of being "gay" is equally understandable. While in many areas of society such an admission is common place, it regrettably continues to be the case that for many people such a circumstance constitutes a stigma and is a source of prejudice.
I have already commented about the ambivalent nature of the deceased's relationship with the applicant. Given the content of exhibit G, which refers to the applicant returning to his wife, it may well have been the case that by 26 May it was the applicant who intended to leave the premises, rather than the deceased wishing to eject him.
The Crown's submission as to the "inherent implausibility' of the applicant's version of events is not made out. If the applicant were suddenly and unexpectedly attacked by the deceased wielding a knife, there would be an initial reaction of shock and disbelief during which wounds could be sustained before the applicant initiated a response. When one keeps in mind that this was a dynamic event with actions occurring rapidly in the course of a violent struggle, there is no inherent improbability in the applicant's assertion that there was an initial period of shock and surprise before he responded to the attack.
Similarly, the delay between the death of the deceased and contacting the authorities is explained by the highly emotional reaction by the applicant to what had occurred. One gains an insight into the depth of that emotional distress when one listens to the ERISP. It is not unreasonable to accept that for a period of time following the deceased's death, the applicant was so overwhelmed as to be incapable of acting logically. It should be kept in mind that far from seeking to hide what had happened, the applicant contacted Alan Jones and his pastor and sought guidance and advice. It is also not without significance that everyone including police officers, who had any contact with the applicant in the hours following the deceased's death, commented on how distraught he was and on his inability in some cases to communicate. I am not persuaded that what happened in the hours following the deceased's death should be given a sinister connotation, rather than the equally plausible, if not more likely explanation, that the applicant was so grief stricken by what had happened that he was unable to think clearly and was seeking assistance and moral support from his religious advisor.
In its submissions the Crown relied upon what it described as discrepancies in the various descriptions given by the applicant of the circumstances of the deceased's death. To the extent that there are discrepancies, they are minor. There is otherwise a remarkable consistency in what the applicant said in answer to the question which was frequently put to him, i.e. "what happened". He consistently said that the deceased had unexpectedly attacked him with a knife and that he had defended himself. I do not see that the use of the phrase "I lost it" when he spoke to Pastor Johnson gives rise to a discrepancy or places any doubt on that fundamental proposition. The phrase is at best ambiguous in its meaning. It could mean he lost control (such as occurs in the defence of provocation) or that in the course of the struggle with or for the knife, he inadvertently stabbed the deceased.
The evidence which causes me most concern in relation to the applicant's conviction for murder is that relating to the injuries suffered by the deceased and him. There is no evidence to support the proposition put to the jury at trial that it was the applicant who was the aggressor and who attacked the deceased. The genesis of that scenario seems to be the fracture of the hyoid bone on the right side of the deceased's neck. In that scenario, the applicant is said to have been in the process of throttling the deceased when the deceased retaliated by stabbing at him with a knife.
Apart from this involving speculation rather than inference, the scenario fails to explain how the deceased could have gained access to a knife if, as the Crown submitted, the attack took place in the lounge room. The problem with this scenario was appreciated by the Crown during the running of the appeal.
The alternative scenario put in the appeal was that the deceased had attacked the applicant with a knife, there was a struggle during the course of which the applicant disarmed the deceased and then no longer being at risk himself had proceeded to stab the deceased with the intent to inflict grievous bodily harm. What that scenario fails to take into account is the violent nature of the struggle which must have occurred, in the course of which the applicant received the deep wounds to his arms, the deceased's hyoid bone was fractured and the applicant received superficial scratch marks to his chest and a sore neck and the deceased received superficial injuries to his left palm, thumb and index finger. During the course of that struggle, which appears to have happened very quickly, the applicant was able to take the knife from the deceased and stabbed him with it.
On that latter scenario in which the deceased was the aggressor armed with a knife, it is difficult to see how on the available evidence the offence of murder could possibly be made out to the necessary standard, i.e. beyond reasonable doubt. The hypothesis consistent with the applicant not being guilty of murder is that the stabbing of the deceased occurred in the course of a violent struggle in which the applicant was seeking to defend himself. That hypothesis has not been negatived by the Crown.
As was said in M v The Queen (Mason CJ, Deane, Dawson and Toohey JJ) at [9]:
"9 … 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."
In this case, except for what happened at the time when the deceased was killed, there were few issues which required evaluation by the jury. The evidence was relatively straightforward and uncontroversial. The crucial evidence was the medical evidence as to the injuries sustained by the two protagonists. There was nothing controversial about that evidence. The only controversy was the inferences capable of being drawn from it. The jury was in no better position than this Court to assess that evidence. In this case the inference of murder, drawn by the jury as a finding beyond reasonable doubt, was not open to it.
Conclusion
It follows that the verdict of guilty of murder cannot stand. This is not the sort of case where the matter should be referred for a retrial for the offence of murder. The Crown case will never improve and the evidence available cannot support a verdict of guilty for that offence. In those circumstances, the conviction for the offence of murder should be quashed and a verdict of acquittal of that offence should be entered. That, however, does not end the matter. There is sufficient evidence, in my opinion, to support on a retrial a conviction for the offence of manslaughter, based on excessive self defence.
The question then arises as to what order this Court should make. The relevant provision is s 8(1) of the Criminal Appeal Act 1912. The application of that section in a context similar to this was considered by this Court in R v PL [2009] NSWCCA 256 where Spigelman CJ (McClellan CJ at CL and R A Hulme J agreeing) held that in circumstances where the Crown case for murder was exceptionally weak so that on a retrial for the offence of murder, an appeal from a conviction would be upheld, an unqualified order for a retrial should not be made. The Court held that in such circumstances it was appropriate to order a retrial but that such a retrial should be restricted to the offence of manslaughter. That is the order which I consider is appropriate in this case.
In view of that conclusion, it is not necessary to consider Ground of Appeal 1A nor the applications for leave to appeal against sentence.
The orders which I propose are as follows:
1. In relation to the application for leave to appeal against conviction, leave to appeal is granted and the appeal is allowed.
2. The verdict of guilty of murder is quashed and an acquittal on the charge of murder is entered.
3. There should be a new trial limited to the charge of manslaughter.
HALL J: The applicant was charged on indictment that on 26 May 2011 at Doonside he did murder Dana Lomas: s 18(1)(a) Crimes Act 1900. The applicant entered a not guilty plea on 24 June 2013. He was tried by judge and a jury of 12 between 24 June and 9 July 2013. Dana Lomas was also known as "Dale" Lomas.
On 9 July 2013, the jury returned a guilty verdict. The applicant was sentenced on 25 October 2013 to a term of imprisonment with a non-parole period of 16 years commencing on 9 December 2012 and expiring on 8 December 2028 with a balance of term of 5 years to expire on 8 December 2033.
On 13 October 2014, a Notice of Appeal or Notice of Application for Leave to Appeal was filed. The Notice contained the following three grounds of appeal:
1. The verdict was unreasonable and cannot be supported having regard to the evidence.
2 Her honour erred in not taking into account the appellant's onerous bail conditions for 18 months, which were akin to house arrest.
3. The sentence was manifestly excessive.
At the hearing before this Court on 24 April 2015, the Notice was, by leave, amended to plead the following additional ground:
Ground 1A: Her Honour the learned trial judge erred in not leaving provocation as a partial defence to the jury.
In the Crown case at trial a number of lay witnesses, police witnesses and two expert witnesses were called to give evidence, the lastmentioned being Dr Van Vuuren, Forensic Pathologist and Dr Judith Perl, Forensic Pharmacologist.
The applicant did not give evidence at trial. He was interviewed by police on 26 May 2011. The ERISP in relation thereto was tendered at the trial (Exhibit H).
[3]
Background
The deceased (who was 41 years of age at the time of his death) and the applicant had shared a duplex together at an address in Doonside ("the Doonside premises"). The applicant moved into the premises shortly after the deceased's birthday in May 2010.
Evidence called by the Crown from a number of witnesses established that the relationship between the applicant and the deceased had been, at times, a volatile one. However, with the exception of some relatively minor assaults, there was no evidence of any violent assaults having occurred which resulted in very serious physical harm to either one of them. Members of the deceased's family and other witnesses gave evidence to the effect that they had seen marks, bruises or other signs on the deceased which on the basis of hearsay evidence was attributed to him having been struck by the applicant.
The deceased had a drug taking habit up to the time of his death. There was evidence of him having ingested prohibited drugs on the day of his death. The applicant had also consumed drugs from time to time.
There were no witnesses to the stabbing of the deceased by the accused on 26 May 2011, which occurred at the Doonside premises. The applicant when interviewed admitted to police, and gave a history to hospital personnel after the stabbing incident, of having stabbed the deceased.
His defence at trial was one of self-defence. No other defence was raised. As discussed below, the alternative of manslaughter was left to the jury on two specific bases.
[4]
Relationship Evidence
The applicant's written submissions contained a summary of the evidence constituting the Crown case, including the evidence as to "relationship" of a number of witnesses to whom I have referred above. The latter was in the nature of background and context evidence of the relationship between the deceased and the applicant which included instances of domestic violence and arguments. Some of the evidence indicated an ambivalent and in certain respects a contradictory attitude by the deceased towards the applicant. Despite the turbulent relationship, with instances of assault said to have been committed by the applicant, there was evidence that the deceased still professed love for him.
The deceased's sister, Bella Winikerei and her partner were living in the abovementioned Doonside premises with the deceased when the applicant (who she referred to in evidence as "Tony") moved in. Ms Winikerei said when the applicant moved in he brought with him, along with other possessions, a knife with a brown handle: T 81. She described it as in the shape of a machete "but a smaller version": T 81. Sometime later she said she saw it in the kitchen. She drew a sketch of it which was admitted at the trial (Exhibit B).
During the period she lived in the Doonside premises up until October 2010, she said she heard the deceased, Dale, and Tony arguing at times. She said on those occasions Tony would be swearing at Dale in an abusive manner and in an angry voice: T 82. When asked "Did Tony tell you anything about these arguments with Dale?" she answered "He just said he loves him": T 83.
She said that after she moved out of the Doonside premises she lived close by and would see the deceased most days. In November 2010 she said she saw that he had scratches and bruises to his face on one occasion: T 84. She said the deceased said "Tony did it" referring to those marks. He was crying. She said he was sore, in pain: T 84.
Later in the same year, she said she saw her brother, the deceased, on an occasion on which he said to her that he was in pain. She lifted his shirt and said "he was bruised": T 85. There was a bruise on his back which looked like a welt. She described it as big and black: T 85. She said that he told her Tony had hit him: T 83. She said she saw an injury, a bruise, on his chest.
She said there was another occasion when her brother had burns on his arms and his hands: T 86. She said that he told her "Tony put a cigarette out on me": T 86.
Ms Winikerei gave evidence about a cocktail party in 2011. She said that her brother left the party at about 2:20am and returned at about 3:30am. She asked what he was doing coming back. He said: "The f'ing C chased me down the road with a knife out of my own home": T 87.
She said about a week before Tony's birthday in May 2011, he said he had given Tony seven days to move out: T 88.
Eileen Winikerei, the niece of the deceased, gave evidence that the deceased had told her that Tony was a black belt and that he was scared of him: T 99. She referred to the events of the same cocktail party in 2011 described by her mother, Bella Winikerei. The cocktail party was at her house and was to celebrate her birthday. She gave evidence that the deceased had been at the party and had left before returning in the early hours of the next morning and that he was 'crying and hysterical' and had said that 'Tony had chased him out of his own home with a knife': T 100.
She gave evidence that the next day she, her mother and a friend had gone to the deceased's house and her mother had told the accused to 'get out': T 101. She said that the deceased had told her that he was scared of the accused 'because if there was no food or no sugar and coffee and stuff he would cop it from him': T 102.
Ms Winikerei gave evidence that on 22 May 2011 the deceased went to her house and showed her bruising on his back in a diagonal line which she indicated was about 20cm long: T 102. She said the deceased told her the accused had 'struck him with something' and that he was crying at the time: T 103. She said in cross-examination that she had never seen the accused injure the deceased: T 104.
Sandra Crawford lived in the same street as the Doonside premises and she knew the deceased. She said that for a couple of months (later changed to four or five months: T 111) after the applicant moved in with the deceased "they were very happy" and then things went downhill: T 110.
She said on one occasion she saw the deceased crying. He would tell her how Tony used to abuse him and physically hurt him: T 111. He told her of an occasion when Tony held a knife to the deceased's throat and threatened to cut his throat: T 111.
She gave evidence of an occasion when she saw Tony with a bed slat. He went to hit the deceased once, which missed, but she said she saw he hit him a second and third time, on his back: T 112.
A few minutes later she saw the deceased, Dale, walk past with a pole in his hands, but he did not do anything with it. He was crying. She rang the police. She said it took seven hours for the police to come. In the meantime Dale asked her to "cancel" the police but she refused: T 113. She said Dale showed her his back - a deep imprint was on his back "where you could see it got him twice"; a reference to the bed slat: T 114.
She last saw the deceased at about 5:00pm on 26 May 2011. He mentioned "how he told Tony that he had to be out by Tuesday": T 115.
Mr Peter Rofe lived about 30 metres away from the house where "Dale and Tony" lived: T 121. As at 2011 he had known Tony for about five years.
He gave evidence that on about 20 May 2011, he saw the applicant working on his van next door to his place. He saw Dale approach him. Dale was yelling and screaming. He said he saw them arguing. Dale said something to the effect of "I want you out of my house, I want you to leave": T 122. He said Tony was not aggressive "he was just dodging him. Dale had a piece of wood ... At one stage he pursued Tony and they ran around the van twice": T 122-3. Dale threw the stick at Tony but he did not hit anyone: T 123. He said that Dale then walked back away.
Mr Rofe said he saw Tony the day Dale died. The last time he saw him was about 2:30 to 3:00pm that day: T 124.
In cross-examination, he agreed he told police the applicant appeared to be normal, nothing out of the ordinary: T 128. He told them he was in good spirits and had been doing manual work on his car: T 128.
Ms Julie Pardey gave evidence that at 3:00pm on 24 May 2011 she was driving home when she saw a male running, chased by another male who was holding a machete in his right hand level with his head: T 142-3.
She described the male who was being chased as medium to solid build wearing a turquoise jacket and long pants. She said "he was running for his life": T 143. The male who was chasing was described by her as being medium build wearing a dark top and jeans. He had a ponytail. She had seen this male before saying that he often tied his hair in a ponytail. It was contended at trial by counsel for the applicant that the person who was chasing the other person was the deceased.
Ms Gloria Anderson, sister of the deceased, lived ten minutes away by car from him. She said some time after the applicant moved in with Dale she visited Dale and noticed a bruise on his arm. He told her he had got hurt but said nothing about how it happened: T 61.
Ms Anderson stated that on an occasion after Bella and her partner moved out of the Doonside premises, Dale went to Bella's house and showed them bruising on his body - on his back, left side and ribs: T 61. He had a scratch down the left side. He had trouble breathing. He could not sit down properly. She said "He told us that Tony belted him": T 61.
On the night of Eileen Winikerei's birthday, in March 2011, there was a cocktail party. Dale had left the party and returned. She said "he said Tony told him to fuck off out of his house; it was his house and chased him down the street with a knife": T 62. She said Dale appeared agitated, scared, angry: T 62.
Between the cocktail party and 2 May 2011 she said Dale lost weight. In that period she also said Dale had bruising, that "he had been hurt from Tony" - he told her he loved Tony. She added "… and I believe he did love Tony because he would do anything for Tony": T 63.
Ms Anderson stated that on 2 May 2011 she and her sister Bella had been standing outside the Doonside premises when she heard Tony say to the deceased, "You're a dog". She said he sounded "Really angry at Dale": T 64.
In relation to an incident on 25 May 2011, she said she went to the deceased's place in the afternoon and she said that as she hugged him he lent away and she said "What's the matter?". She said that the deceased told her that he had been "beaten with a 4 x 2". He said that the applicant had done it: T 64. She said she saw a massive bruise on his back and that the deceased said his ribs were "really sore": T 64.
In the course of her evidence she also stated that she recalled an occasion when the applicant said that he had a black belt in karate: T 63.
In cross-examination she stated that she understood her brother, the deceased, had suffered from paranoid schizophrenia and from depression: T 65. However, as at the date of his death he was not being medicated for those conditions: T 65.
Ms Anderson also stated that in the months leading up to his death she became aware that the deceased had been using drugs and that he had had a previous problem with prescription drugs: T 66. The latter problems had resolved.
Ms Anderson said that she understood that the deceased was using "harder drugs" around the time of his death: T 66. This was based upon what others had told her and also she said that she had found syringes in his house both before and after his death: T 66.
As to the deceased's condition before his death, she said that he was not looking after himself and she thought that he might sell household items to pay for drugs: T 66.
She agreed in cross-examination that she never saw the applicant physically mistreat her brother: T 67.
Kirralee Howley, daughter of Ms Pardy, gave evidence of an incident she said she saw on 24 May 2011. She was then driving her mother and others home from the IGA Supermarket. As she approached a vacant lot of land she saw a man being chased by another man. The man who was doing the chasing was holding a samurai sword over his head. She said the blade was "pretty long": T 148. She said the person being chased was "a bigger boy sort of thing": T 149. She described that person as 160-170cm tall, similar to her own weight with fair skin and very short light brown hair, wearing a grey jumper. She said she had seen him around before: T 149-150.
Ms Howley described the man with the samurai sword as being 170-180cm tall, of very skinny build, with tan coloured skin and black hair in a ponytail, which she referred to as a "piggytail": T 150. She said she had seen this man a number of times in the street: T 150.
Ms Hediye Sonmez gave evidence. She was a resident of Doonside. She had seen the deceased, who was a neighbour. She described him as slim, approximately 5 foot 8 inches in height with long brown curly hair to his shoulders and olive skin: T 151. She said he was clean shaven and had brown eyes and she believed that he was from New Zealand.
She also saw another male who was living at the Doonside premises about whom she gave evidence. She had seen that there had been a yellow combi-type van regularly parked in the driveway of the house where he and the deceased lived: T 152.
She found out through a neighbour that this man was named Tony. She described him as of medium build, with light brown hair, and blue-green eyes but was not sure as to whether he was a little taller than the deceased: T 152.
In March 2011, she had been sitting out the front of her house with a neighbour, Sam Crawford, when the deceased walked past. That was the first day she actually met him: T 152.
In about the middle of April 2011 at 11:30pm she was out the front of her home having a cigarette and saw the deceased in the street. She said he looked as though he was hurt or maybe drunk. She thought that because he was "all over the place": T 153
She said he appeared unsteady on his feet and looked as though he was in pain, and was making groaning sounds: T 153.
She said that one Friday afternoon the deceased came up to the letterbox of her place and "lifted up his shirt and said look at my back because we had just been fighting or something": T 153.
She said that he said that "we just had a fight". She said this occurred with the person he was living with and he mentioned his name, "Tony": T 153. Ms Sonmez later agreed that this was likely to have been Friday, 20 May 2011, one week before the deceased's death.
She described what she saw when the deceased lifted up his shirt. She said it looked red and bruised and that there were "bits of blood on the back": T 154.
In cross-examination she agreed that on the occasion when she was in the front of the house with her neighbour in March 2011, and the deceased had walked past, she told police that Sam Crawford had invited the deceased up and that was when she was introduced to him. She agreed that in her statement to police she had said that the deceased appeared upset due to not making eye contact with her or Sam. She asked if he was okay. He replied something similar to "Tony keeps going back to his wife". T 155.
She further agreed that she told police the deceased had said, "and if he wants to keep going back to his wife I want him to leave me": T 156. She agreed that the deceased said those things in her presence. She agreed that she responded with words to the effect that he should ask Tony to leave as it was his house, that he was not happy or words to that effect. She agreed: T 156.
It was put to Ms Sonmez, and she agreed, that she said that the deceased expressed to her feelings that he was "sick of Tony not treating him like a partner in a relationship because he kept on seeing his wife": T 156.
She also agreed that the deceased said to her that Tony's wife lived a few streets away: T 156.
In relation to the incident in about mid-April 2011 at about 11:30pm when she said she saw the deceased unsteady on his feet and groaning, she said that about a week later she spoke to the deceased about it and he told her that he had been mugged: T 157. She agreed that he said he had been walking down Kildare Road in Doonside with a backpack and had been mugged by a number of men in a car: T 157. He told her that they had bashed him and took his bag: T 157-8.
A statement of Raylene Gregg dated 27 May 2011 was read to the jury during the trial. Ms Gregg gave evidence that she lived in the same street as the deceased. She had seen a man living at the deceased's address who she described as between 40-50 years old, of small build and with dark skin and dark hair worn in a ponytail. She gave evidence that about two weeks prior to the date of her statement she saw this man chasing a yellow ute, 'yelling words fast and loudly.' She could not see who was driving the yellow ute: T 163.
She also gave evidence that on 26 May 2011 she witnessed what she believed to be two males having a heated conversation in the front yard of the deceased's address though she could not identify the men: T 164.
A statement of Constable Alan Franklin was read to the jury. Constable Franklin had attended the deceased's residence on 20 May 2011 at around 7:56pm in response to a call. He said that he spoke to a male who he now knows to have been the deceased. The deceased told him that he "had an argument with his friend that resulted in his friend hitting him on the back and then chasing him down the street…Lomas refused to reveal the identity of his friend and denied having any fears for his safety": T 165. He gave evidence that he told the deceased to contact the police again if his friend returned or if he had any problems, to which the deceased replied "Everything's fine, don't worry about it": T 166.
[5]
Evidence as to the Events of 26 May 2011
The statement of Michael McCluskey dated 3 June 2011 (MFI 9) was read to the jury: T 172. Mr McCluskey had known the deceased for about ten years and had known the applicant for about twenty years. He described the deceased as being a "Kiwi with long black hair". The applicant was said to have had short hair and a fair complexion. He said that he had not seen the applicant being violent in his presence, nor had the seen the deceased being violent. He said, "They were just argumentative with each other."
On Thursday, 26 May 2011, he said he met the deceased in Blacktown. He said this was for the specific reason of talking about whether Tony "was going to move out of the deceased's place and whether he was still going to move in": at [5].
They returned to the deceased's home where he said the deceased had "a bag of speed". He said that the deceased mixed his "speed" up in the bag and he went and injected himself in the bathroom. He said that they had "a couple of cones of pot".
About fifteen minutes after the deceased and he took the speed the applicant came out of his room and there was a conversation about McCluskey saying to the applicant that he would have kept some speed for him had he known he was in the house. He said he could see that the applicant was angry about not getting any of the speed: at [8].
McCluskey said that he knew that the deceased had told the applicant about three weeks before that the applicant "had to go". He said that the deceased had previously told him about the applicant "giving him a clip across the earhole": at [9]. He said that the deceased wanted the applicant to go "… as quick as possible because Tony wasn't paying any rent and was spending all his money on drugs ...": at [9].
He said that after the applicant came out of his room on 26 May 2011, the applicant and the deceased were arguing continuously while he was there: at [10].
Later that day he said goodbye to the deceased and the applicant and heard the deceased saying to the applicant "you've got to go you're not paying your way": at [14].
Mr Vora, who was working for a sales and marketing company that worked on behalf of AGL, gave evidence of visiting various residents in Doonside on 26 May 2011. At 5:15pm on 26 May 2011, he went to the residence of the deceased and the applicant: T 174.
He spoke to the deceased. He gave a description of the deceased at that time: T 175.
Mr Vora's evidence was firstly relevant to the deceased's cognitive condition in the period immediately prior to him being stabbed by the applicant. On the evidence, the stabbing incident occurred not long after Mr Vora left the deceased. His evidence was that he left two or three minutes after 5:57pm. The Crown in their closing address put the time as being slightly after 6:00pm. Mr Vora's evidence was also, in part, relevant to a question as to whether the deceased had ingested drugs with two males during the afternoon of 26 May 2011 (in addition to drugs ingested earlier that day.)
Conversation turned to the question of a discount being available and Mr Vora commenced filling out some paperwork whilst he was outside the house. The deceased said that he had gone to find his wallet but had lost it and that all he had was his bank keycard. He showed the keycard to Mr Vora: T 176. Mr Vora said at that time he did not notice any injuries or anything unusual about the deceased.
At the time of filling out the paperwork Mr Vora saw two other men at the house: T 177. Mr Vora said he made a verification call which involved somebody from Mr Vora's company talking to the customer to verify details. The first of two verification calls ended at 5:36pm. The recording of the calls were played in court: T 178.
After the call was terminated at 5:36pm Mr Vora said he spoke to the deceased who said "I used to live at my sister's for four years and I am the one who pays the bills for that property, so can you set up a discount thing?": T 178.
Mr Vora asked him for the address and he gave an address in Castle Hill. He did not have a postcode so the deceased said that he would go inside and look in the Yellow Pages. He then went inside. About three or four minutes later he came out and told him the postcode. Mr Vora then completed the second contract and a communication form: T 179.
He said the deceased signed the documents. Mr Vora then made the second verification call. The deceased also spoke to the operator during the second call: T 179.
Mr Vora said that before he left the deceased, the deceased said to him "do you smoke?". Mr Vora replied in the affirmative. Mr Vora said the deceased asked "can you give me one cigarette?" Mr Vora said that it was in his car which was parked away. He then left the Doonside premises.
The second verification call, played in court, finished at 5:57pm.
In cross-examination Mr Vora confirmed that the two other men who he referred to in evidence had been inside the house: T 182.
He agreed that one of them said goodbye to the deceased. They then walked outside the gate: T 183.
Evidence was given by Eddy Johnson who had been practicing as a Pastor for about 40 years: T 187. He worked in an office in Blacktown. The premises were a community centre.
Pastor Johnson said he first met the applicant five or six years before May 2011. He said the applicant had been attending counselling, not with him but with somebody else at the community centre.
He said that at about 9:30am on Thursday, 26 May 2011, he was at the Blacktown office. The applicant dropped in to use his phone, apparently for a job application. He remained there for about thirty minutes. He said he appeared "happy, glad, normal": T 188.
Pastor Johnson arrived home that night at about 7:00pm and received a call on his mobile phone at about 7:15pm: T 188. He recognised the applicant's voice. He said that he was sobbing. He asked the applicant where he was. He said he found it difficult at first to understand him because the phone was fading. He told the applicant to calm down. The applicant said "please come, please come I need you Pastor Eddy". The phone dropped out and he rang the applicant back. The applicant said he was at Alan Jones' place.
Pastor Johnson said that he contacted other members of the support group and made his way to the Doonside premises: T 190.
He said that he knocked on the front door calling out to the applicant but there was no answer. He said he looked down the driveway and saw some dark splashes of liquid and recalled saying to the others "this looks like drops of blood". This was about one metre from the front door: T 192.
Pastor Johnson said he then saw the applicant out on the road. He approached him and said "What's going on, what's happened Anthony?". He said the applicant was sobbing and was incoherent to some extent. He asked him to tell him what had happened. They moved away from the house and across the road. The applicant said "I want to die, I want to die. Give me a rope, find me a rope": T 192. He asked the applicant what had happened and he said "he came at me with a knife and slashed my arm. So I let go, I think because of the words he used and the wrestling I stopped him": T 192. Mr Johnson said he kept repeating "I want to die, I want to die": T 192.
He said he asked the deceased to show him his arm. He said he saw blood on his sleeves and said "Anthony, let me see what's there": T 193. The applicant rolled up his sleeve and he could see a slash on his left arm. When asked whether the applicant said anything about what had happened, Pastor Johnson said that he did not, other than saying "I stabbed him, I stabbed him" but that he appeared very distraught: T 193.
When again asked whether the applicant disclosed information as to what had happened, Pastor Johnson said that the applicant said "somehow I got the knife away from him and I took the knife and then I stabbed him": T 196. He was not sure as to what else he said although he said there may have been something like "we struggled a little bit".
Pastor Johnson was taken to his statement, at paragraph [12], where he referred to the applicant saying something about a knife and an arm. He was asked, having read the statement, whether there was something said about which he did not give evidence, namely, the applicant saying "I lost it". Pastor Johnson confirmed that he had said those words. Pastor Johnson said that the applicant said the deceased slashed his arm with a knife and "I lost it then, I took the knife and I stabbed him": T 197.
[6]
The ERISP
Police interviewed the applicant on Thursday, 26 May 2011 at Doonside commencing at 9:10pm. The interview was conducted by Detective Sergeant Bristow. Detective Senior Constable Scott-Mahjet was present.
The ERISP dated 26 May 2011 was admitted into evidence and played at the trial.
The ERISP took place in a police caged vehicle in the deceased's street approximately three hours after the death. This was relied upon by the applicant as important evidence due to the fact that the recording of the interview revealed the applicant to have been genuinely distraught over the death of the deceased. Relevant extracts of the ERISP are reproduced below. In summary, the applicant's answers to police questions included reference to the following matters:
The applicant and the deceased had a fight;
The deceased, according to the applicant, was "going off his head because he (the applicant) was packing up:;
The applicant said he did not know what to do;
The applicant said the deceased had been shooting up and he was "drugged up";
The applicant said he grabbed the knife off the deceased and stabbed him once on the left side of his chest;
The applicant said "everything was going mental" and the deceased slashed him a couple of times - that he just did not know what to do - "whether to keep letting him slash him or not";
The applicant said he tried to take the knife but "I just didn't know what to do";
The applicant said earlier in the afternoon the deceased and other people were in the house taking drugs;
The applicant told police he didn't think the deceased wanted him to move out;
When asked what his intention was when he stabbed the deceased, the applicant said he didn't have any intention, and that it was reflex;
When asked what he was trying to do with the knife, he replied "Just protect myself";
When asked whether it was his intention to kill, the applicant replied "No way, man".
The applicant agreed that he had told the police at the scene "We had a fight": ERISP, p 2, Q.13.
At Question 14 he was asked, "Who had a fight?". He answered:
"A Me and Dale. He was going off his head because I was packing up and then he um, went off and he had a knife and he slashed me. And I just don't know what to do next so I just, I took it a couple of times."
Q15 What did you take a couple of times?
A A couple of slashes to me arms.
Q16 Yes.
A 'Cause I didn't really want to fight, mate. You know what I mean? And then after a couple of times I just didn't know what to do, man. I just, I didn't know what to do.
Q17 And what happened from there?
A I just stabbed him, stabbed him."
A little later he was asked:
Q24 Now Anthony, why did this happen?
A I don't really know. He was pilled off his, he was drugged up and he was shooting up there this afternoon, and drugged up and just arguing. I was packing up 'cause I wanted to move out. I've been waiting to get out of there.
Q25 And why was that?
A Because he keeps like putting it on me and stuff like that.
Q26 When you say putting it on you what are you referring to?
A Like sexual advances and shit like that, mate.
Q27 All right. And is he a homosexual?
A Yeah, I think so.
Q28 All right. Are you?
A No.
Q29 How many times did you stab Dale, Anthony?
A Just once.
Q30 … And what did you stab him with?
A A knife.
Q31 And where did you get that knife from?
A I grabbed it off him.
Q32 And can you tell me how that took place?
A Oh, we were just going everything was just going mental and he slashed me a couple of times and I just didn't know what to do, I just didn't know whether to keep on letting him slash me or not.
Q33 Right.
A You know what I mean? I tried to take it but I just didn't know what to do.
Q34 How many times did he slash you?
A Maybe about three or four times."
The applicant was asked the following questions and gave the following answers:
"Q40 And do you recall what time this happened this evening?
A Oh, probably about, I don't know, about three quarters of an hour I'd say before youse come.
Q41 All right. And what did you do after it happened?
A I come up here to see me neighbour.
Q42 And who did you see?
A Al.
Q43 And has Al got a last name?
A Um - - -
Q44 Do you know what - - -
A - - - Jones.
Q45 Jones is it. Do you know what number Al lives at?
A [address provided]
Q46 And how do you know him?
A I've known him for years.
Q47 And what did you say to him?
A I told him what happened.
…
Q50 Now what was it that you said to him when you got to his place?
A Exactly what I said to you.
Q51 And can you repeat for me what that was?
A That Dale was going off his head and slashed me a couple of times and I took it a couple of, like I took a couple of slashes because I didn't know what to do. I didn't know whether to respond or just to take it.
Q52 Yep.
A And then after a couple of times I seen this one was really open.
Q53 Yep.
A And I thought it was a bit too dangerous to be just copping it.
Q54 Yep.
A So I grabbed it and stabbed him.
Q55 All right. So are you telling me that you were just standing there taking it?
A Yeah.
Q56 And whereabouts in the house was this happening?
A In the lounge room.
Q57 O.K. And where did, where did Dale end up?
A Fell on to the lounge.
Q58 Did he?
A (NO AUDIBLE REPLY)
Q59 All right. How on the lounge? I haven't seen him so - - -
A He just fell back all over the lounge.
Q60 All right. Now the, the knife that you used to stab Dale, was that the same knife that he attacked you with?
A Yeah.
Q61 Where did that come from?
A I don't know.
Q62 Do you know where Dale got it from?
A It was in, it was in the house.
Q63 Do you know whereabouts in the house?
A No, I wouldn't have a clue, mate. He was going off his head going right through the house, tearing the house up and stuff like that. You know what I mean?"
A little later the following questions and answers were recorded:
"Q65 Oh, O.K. How long had the two of you been at home together this afternoon and tonight?
A Not long. He had other people up there like taking drugs and stuff. So I come down here and just to avoid it, mate. I didn't like the, you know, the situation.
Q66 Yep.
A So I come down here and did a little bit of work with the boys down here on the car.
Q67 And do you know what time that was?
A No, I couldn't tell you what time it was, man.
Q68 O.K. How long before Dale got stabbed was that?
A When we finished doing that I went up and locked meself in the room because there was, you know, he still had a mate and that there.
Q69 Do you know who that was?
A Um, no, I didn't know the bloke, mate.
Q70 O.K. When you went back up to the unit where Dale was, was it daylight or dark?
A I think it was just on dark.
Q71 All right. So before you stabbed Dale how long had you been back home?
A Um, a little bit 'cause I laid in the room and watched a um, video. It was Missing In Action, so, you know - - -
Q72 Like a DVD or something was it?
A Yeah, just a video.
Q73 O.K. All right.
A 'Cause I stayed in me room 'cause he was going, I knew he was going off his head and blah, blah, blah and you know what I mean, I knew, I started packing me stuff and that. And um, you know what I mean, I don't think he wanted me to move out. And he was just going off his head, you know, it was more like, it was really hard to read, it was like um, he was jealous that I was moving out or something, man. You know what I'm saying?
Q74 All right.
A Like - - -
Q75 And do you know why that would have been?
A I don't know.
…
Q78 O.K. And when did this problem start between you and Dale today?
A When he come home this afternoon in a mood.
Q79 You were already there?
A Well I was there but I just walked out and come down here and, you know what I mean - - -
Q80 What time was that that he come home?
A I'm not too sure, mate.
Q81 All right. Was it still daylight?
A Yeah, yeah.
Q82 Yeah. All right. Was it still daylight when you came down to your friends place here?
A Yeah, 'cause I worked on the car with them."
The applicant was then questioned about the stabbing incident:
"Q83 O.K. All right. And can you tell me how it was that you stabbed Dale with the knife?
A What do you mean?
Q84 How did you do it?
A I just grabbed it and went like that.
Q85 All right. So you've indicated with your right hand.
A Yeah.
Q86 Are you right handed or left handed?
A Yeah, right handed.
Q87 O.K. Did you have the knife in your right hand?
A Yep.
Q88 All right. And you indicated just then a type of sideways motion.
A Yeah, I just, sort of like swung it at him.
Q89 O.K. And what was your um, what were you trying to do by doing that?
A I didn't really have any intentions to do anything really.
Q90 All right.
A It was just, it was reflex really.
Q91 Yep.
A It was just, I don't know, I was scared, I was confused. I didn't know really what to do, man.
Q92 All right.
A Honestly, I didn't know what to do, mate.
Q93 And how were you sort of feeling at the time that you stabbed him with the knife?
A Fucken terrible, mate.
Q94 And, you right? What was it that you were trying to do with the knife?
A Just protect meself.
Q95 All right. And how many times did you swing it at him?
A Just once."
The applicant was then asked the following questions and gave the following answers:
"Q103 Yep. O.K. Now what was it that you were trying to do by trying to get him with the knife?
A I was just trying to swing it around and like just scare him back. But I think he stepped in or something. He was just going wild, mate. I don't know what really happened, mate, it just went so quick. I just don't know what happened.
Q104 Yep. How does he compare in size to you?
A We're about the same size I think.
Q105 All right. O.K. Now - - -
A But mate, he goes right off his head, when he's on pills and shit, mate. When he's on drugs he goes right off his fucken head, mate. He come down here and he attacked me down here the other night and shit like that, mate.
Q106 Yep.
A He's done it, he's done it a few times, man.
Q107 And when he's attacked you before have those matters been reported to the police?
A (NO AUDIBLE REPLY)
Q108 You're nodding your head from side to side.
A No, I didn't worry about it.
Q109 O.K. Have you ever reported any attacks by him on you to the police?
A There was one incident yup here where he was smashing up some timber.
Q110 Yep.
A And he was throwing it at me so I picked up a bit of timber and just slapped him on the side.
Q111 Oh, O.K.
A And he rang the police, but he was throwing shit at me and hit me in the head like, I don't know what it was, mate, he was just throwing all me shit at me and hitting me in the head with like, I think it was a bag of old remotes or something, you know.
Q112 Yep. TV remotes and stuff like that.
A Yeah.
Q113 Yep. All right. What were you intending to do by trying to get him with the knife?
A Keeping a distance, get him away. You know what I mean? Like - - -
Q114 Were you trying to injure him?
A No way, man.
Q115 Well if you weren't why would you do that?
A I was just trying to like swing it in front of him.
Q116 Yep.
A But he's gone like that.
Q117 Yep.
A Like grabbing - - -
Q118 You're sort of indicating that he, that he sort of jumped at you with his arms up?
A Yeah, he just went like that. And I went … And I just went to swing it like that.
Q119 Yep.
A And I think I got him in here somewhere.
Q120 So it's gone into his side under his left arm has it?
A (NO AUDIBLE REPLY)
Q121 That's what you're sort of indicating to me.
A Yeah.
Q122 Yep. All right.
A And he just fell back on the lounge and I grabbed him, I grabbed him and I just didn't know what to do for Dale.
Q123 Did he say anything to you?
A (NO AUDIBLE REPLY)
Q124 No. How hard did you stab him with the knife?
A It didn't feel hard.
Q125 Sorry?
A It didn't feel hard.
Q126 O.K. Was it your intention to kill him?
A No way, man.
Q127 I've got to ask you, Anthony.
A No way, man. I wouldn't kill no one.
Q128 Yep. Was it your intention to injure him?
A No. No.
Q129 Did he say anything to you after he got stabbed with the knife?
A No."
On Friday, 27 May 2011 at 2:45am, Detective Senior Constable Harris interviewed Alan Jones. The record of interview became Exhibit M in the proceedings. Mr Jones said that the night before the applicant came to the door and came into his house. He said he looked agitated and upset (A11). In Answer 12 the following was recorded:
"I asked him what was the matter. He came and sat down where my shoulders are on this chair, on the lounge, it's a bed really, and sat down here and just rocked around a bit. He was shaking. I said, 'What have you done now?' And he just didn't give me an answer. Then he started crying. And then he got up, went to the kitchen, come back out again and he sat down there and he said, 'I've hurt Dale.' I think it's Dale isn't it? I'm not sure. Dale. I said, 'What did you do?' And I got no answer from him at all. He said, 'I want to ring Pastor', Pastor Eddie."
In relation to the relationship between the deceased and the applicant, he was asked:
"Q51 O.K. And do you know what relationship that Tony has with Dale?
A Well it wasn't very good.
Q52 What do you mean by that?
A Well every time he come up he said I can't handle this cunt I'm living with.
Q53 Yep.
A But he was going to go and live with his brother, but apparently that fell through.
Q54 Yep.
A And after that he was really upset about that. But he said, I've got to move. Well, the end result …. But he was agitated for weeks before, before this happened."
Mr Jones was recorded as saying that the applicant indicated to him that he and the deceased did not have a good relationship (Q58) and that he did not get along with the deceased "'cause he used to knock off his cigarettes and all that" (Q59). Additionally, the applicant had said to him a couple of weeks before the incident "If I don't move from this prick something's going to happen between us" (Q 62). He was asked:
"Q64 So what, what was that all about a couple of weeks ago?
A Oh, it was over money or something."
In answer to Question 69 he said that the applicant showed him a cut. He said "He had a really nasty cut".
[7]
The Expert Evidence
The medical evidence established that the cause of the deceased's death was a single stab wound to the left posterior lateral aspect of the chest. Other injures were noted on the deceased, the most significant of which was a fractured hyoid bone. This was consistent with manual strangulation: Dr Van Vuuren at T 307. In cross-examination, Dr Van Vuuren agreed, however, that she could not rule out the possibility that the injury occurred as a result of squeezing and pushing in a defensive action: T 319.
Evidence given by Dr Perl, pharmacologist, was directed at establishing the level of methylamphetamine in the deceased's body and the possibility that this may have caused the deceased to have acted aggressively.
Dr Perl gave evidence that a number of substances were found in the deceased's blood including amphetamine, methylamphetamine, clonazepam and delta-9-THC acid (which is commonly found in cannabis). Dr Perl gave evidence that the concentration of methylamphetamine found in the deceased was in the toxic range which would generally mean that the user would experience adverse effects and impairment, but that these effects would vary according to the user's level of tolerance: T 325.
Dr Perl gave evidence that the drug must have been used at least two to four hours prior to death because it was partially metabolised. She said that the drug may have also been used at other times during the day: T 326.
The effects of the drug on the deceased would have varied, according to Dr Perl, depending upon what time of the day the drug was used. She described two phases of expected effects of methylamphetamine use - the first being excitability, increased alertness, hyperactivity, talkativeness, agitation and paranoia which would occur after use. The second was a phase of withdrawal which would occur as the drug wore off. The effects on the user in this phase would include sleepiness, fatigue and slow movements. The intensity of the experience would depend upon the blood level and the user's level of tolerance: T 326.
Dr Perl gave evidence that the deceased, based on his interactions with the AGL representative, did not appear to be grossly impaired: T 330. On the assumption that the deceased had used methylamphetamine around midday, consistent with the statement of Mr McCluskey, Dr Perl gave evidence that he would have been in the withdrawal state. However, there could not be excluded the possibility that there may have been usage of methylamphetamine on more than one occasion during the day. If the deceased had taken a knife to the accused, Dr Perl stated such aggressive behaviour would be consistent with methylamphetamine use: T 339.
[8]
Applicant's Submissions
Mr Stratton SC, who appeared on behalf of the applicant, submitted that the injuries taken in isolation, especially given that there was only one stab wound, did not establish an intention to either kill or inflict grievous bodily harm. If that were the applicant's intention, the question was posed, 'Why stop at one stab wound?'
It was submitted, however, that the injuries to the deceased should not be taken in isolation. They should be considered in the context of the injuries to the applicant, in particular, the injuries depicted in Exhibit F. The wounds to the applicant's left arm, it was contended, could not be taken as superficial wounds and there was no suggestion that they had been self-inflicted.
It was submitted that there was no evidence to support the Crown hypothesis put to the jury, namely, that the applicant first attacked the deceased and the deceased then lashed out at him with the knife, before the applicant wrestled the knife off him and stabbed him. A difficulty with that hypothesis, it was submitted, was that, apart from the stab wound, the injuries to the deceased were quite limited.
The events all occurred in the lounge room of the Doonside premises where the deceased's body was located and where all of the deceased's blood was located. The applicant's submissions posed the question "If the applicant was [on the Crown case] strangling the deceased in the lounge room, how did the deceased get access to a knife?"
It was submitted that taking into account the physical evidence and the pattern of injuries on the applicant and the deceased, the following was the more consistent course of events:
"The deceased attacked the applicant with a knife which he had brought with him into the lounge room, probably from the kitchen": (Applicant's Written Submissions at [141])
Reference was made to Exhibit A, a photograph that appeared to show a knife block in the kitchen with empty spaces for knives.
The submission for the applicant continued:
"The deceased inflicted the injuries on the [applicant's] arms as the [applicant] attempted to ward off the blows with his hands and arms. The [applicant] managed to wrestle the knife off him. Taken by surprise, and in what was in effect a life and death struggle, the [applicant] inflicted a single knife wound to the [applicant], which was tragically fatal." (Applicant's Written Submissions at [142])
[9]
The Crown Submissions
The Crown case at trial was not that the applicant intended to kill the deceased or that the offence was premeditated. It was that the applicant intended to inflict grievous bodily harm.
The central issue at trial, the Crown observed, was whether the Crown had established that the act causing the death of the deceased was not done in self-defence.
The Crown relied at trial upon the following matters to establish that the applicant must have intended to inflict grievous bodily harm:
The nature and extent of the injuries received by the deceased;
The weapon used; and
The placement of the injury. (Crown Written Submissions at [8])
The Crown also relied upon:
1. The relationship evidence between the deceased and the applicant, including the evidence as to the observations of friends and family of injuries said to have been inflicted on the deceased in the past as outlined above at [136]-[188];
2. The fact that one of the applicant's first accounts after the killing was to tell Pastor Johnson that he "lost it" as part of his explanation for killing the deceased and the fact that the deceased had been trying to get the applicant to move out of the premises for some time to no avail: (Crown Written Submissions at [8])
There were, the Crown submitted before this Court, a number of "compelling reasons" why the jury rejected the applicant's account at least in part: (Crown Written Submissions at [9]).
The Crown first drew attention to the medical evidence of Dr Van Vuuren that indicated that the track of the wound extended through the left lung to the heart and was about 24 cm deep. This was put to the jury by the Crown as being inconsistent with the applicant simply trying to get the deceased away from him. It was more consistent with an intentional swinging of the knife with an intention to injure the deceased: (Crown Written Submissions at [12].)
The Crown, secondly, drew attention to the fracture of the hyoid bone which the evidence indicated would have required "moderate to severe" force to cause. This was consistent with manual strangulation. It was submitted that Dr Van Vuuren had not agreed in cross-examination that the fracture could have been caused by force to the front of the neck in a pushing action, as someone may do if defending themself, but only by squeezing (T 319:12). As noted above, the applicant's submission relied upon evidence of Dr Van Vuuren at T 319 for the contrary proposition, ie, what was said to have been a concession by her that she could not rule out the possibility that the fracture occurred as a result of pushing in a defensive action.
It is convenient to refer at this point to the evidence of Dr Vuuren in cross-examination, as follows (T 319:10-21):
"Q. Grabbing around the neck first and squeezing and/or pushing, could that explain some of the injuries that you saw?
A. The squeezing would more account for the injuries, not the pushing.
Q. There could have been squeezing and pushing?
A. Yes.
Q. And you cannot rule out the possibility that if the injury occurred in the manner I suggested with the arm out and the fingers are under the neck and the hand under the neck, you cannot rule out the possibility that that occurred in a that defensive motion or defensive action, can you?
A. No you cannot."
The Crown also pointed to evidence as to other injuries suffered by the deceased that were said to be indicative of the use of force by the applicant and consistent with being "defence wounds": (Crown Written Submissions at [14].) These included superficial wounds to the palm of the left hand of the deceased consistent with defence wounds. Reference in this regard was made to Dr Van Vuuren's evidence: "It would indicate that the deceased was grabbing the knife, trying to deflect it from his body": T 308:36-37.
It is convenient at this point to extract Dr Van Vuuren's evidence in chief on this point:
"Q. Doctor, in your post-mortem examination you also noted what you have referred to as superficial injuries present on the palm of the left hand consistent with self-defence wounds?
A. Yes.
Q. Are you able to indicate where those superficial injuries were on the left palm of the left hand?
A. There was a small cut to the left thumb, and also the left index finger.
Q. Doctor, are you able to give an opinion as to whether those superficial injuries you have indicated to the thumb and the index finger, could they have been occasioned at the same time as that stab wound?
A. Yes they could be.
Q. Why do you say that?
A. Well they had a similar appearance like a recent cut, as the stab wound. They appeared to be the same.
Q. And considering it was the deceased's left hand, and the wound was to the left back, what do you say about that as being indicative of occurring at the same time as the stab wound?
A. it could indicate that the deceased was grabbing the knife trying to deflect it from his body, and then the cuts could appear.
Q. But it's also possible they could have occurred at another time, but from what you have seen, and from your experience it's your opinion that they occurred at the same time; is that right?
A. Yes, that's correct." (T 308:15-42)
In the cross-examination of Dr Van Vuuren on the subject of the left hand injuries the only question put to Dr Van Vuuren was whether she agreed that the wounds to the left palm and left thumb were "superficial": T 313:10-30; 315:1-6.
In addition to the left hand, other injuries to the deceased included an injury under the jaw consistent with some force applied to the neck and an abrasion to the nose: T 311. There was also a cut inside the mouth apparently caused by a tooth. These injuries would have required some force according to Dr Van Vuuren: T 312:13. There were cuts above the left eyelid and an abrasion in that area: T 312.
As mentioned, the Crown submission was that there was sufficient evidence at trial to establish an intention in the applicant to inflict grievous bodily harm upon the deceased - particularly the moderate to severe amount of force required to cause the fatal stab wound, the nature of the weapon used and the location of the stab wound in the chest: (Crown Written Submissions at [15].)
The Crown also submitted that whilst the injury to the hyoid bone and the other injuries were not as significant as the fatal stab wound, they were not consistent with the version given by the applicant in the ERISP: (Crown Written Submissions at [16].)
The relationship evidence, the Crown submitted, provided relevant context. The jury had been instructed that they were not to use the evidence as tendency evidence and were given appropriate directions as to its use as context evidence. The Crown referred in summary form to the evidence given by family members and friends: (Crown Written Submissions at [19]-[20].)
The Crown also referred to the evidence as to instances relied upon by the applicant as revealing violent conduct by the deceased: (Crown Written Submissions at [21]-[22].)
Reference was made to the evidence of Sandra Crawford (T 115) to the effect that that the deceased on the day of the stabbing was angry with the applicant. The Crown noted that this was relied upon by the applicant as undermining the relationship evidence. The Crown submitted, however, that this was consistent with the deceased becoming increasingly frustrated over the fact that the applicant would not move out and his desire for him to do so: (Crown Written Submissions at [24].)
The Crown set out in its Written Submissions at [25]-[34] a summary of relevant events after the applicant stabbed the deceased. It was noted that the time of the stabbing could be narrowed down to the period 6:02pm to 6:08pm by reason of the evidence of Mr Vora who left the premises at about 6:02pm and the evidence of the telephone call of Mr Matthew Holmes at 6:08pm. The Crown submitted that the delay that followed the incident before it was reported to police was significant.
The Crown referred to the statements made by the applicant after the incident to a number of persons noting that there was no evidence that the applicant had tried to contact police or triple-zero.
The Crown submitted that whilst the applicant relied upon the distress he demonstrated to others (including police) as being inconsistent with an intention to inflict grievous bodily harm upon the deceased, this was equally consistent with the applicant realising the consequences of his action and likely punishment: (Crown Written Submissions at [34].) Additionally, the distress was not inconsistent with the subsequent development of remorse for what he had done.
[10]
Evidence Relied Upon to Support the Crown Case
The jury's guilty verdict indicates that, having rejected the defence of self-defence, it was satisfied beyond reasonable doubt that the applicant intended to inflict grievous bodily harm on the deceased.
The Crown case, inter alia, relied upon the following factual matters:
1. The proposition that the deceased wanted the applicant to move out of the house in circumstances in which the deceased held the lease of the premise. This was relied upon by the Crown at trial as a basis for rejecting the applicant's version of events.
2. The evidence of Gloria Anderson (T 71-2), Ms Bella Winikerei (T 87-88, 92), Ms Eileen Winikerei (T 101), Peter Rofe (T 121-2) and the Statement of Michael McCluskey (T 171) as support for the proposition in (1) above along with Exhibit G, a note found at the premises written by the deceased which included the statement "… I am tired of you kicking me in the teeth all the time" and a statement to the effect that the applicant had seven days to get his stuff out: Constable Jorgenson (T 267). I note that there was no evidence that the applicant had seen the note.
3. An SMS message from the deceased to the applicant on 20 May 2011 stating, inter alia, "You have until 2pm to get my money to me [before] my family chucks your things on the road dale": Exhibit L.
4. The fact that certain evidence contradicted the applicant's own version which was that he and the deceased had had "a fight", that the deceased was "going off his head" because the applicant was "packing up" and the deceased then attacked him with the knife. The Crown properly noted, however, that the applicant also relied upon particular aspects of the relationship evidence, in particular, the evidence of the deceased's actions on other occasions that involved violence or that evidenced a violent disposition by the deceased towards him. Reliance was also placed upon Exhibit G, a handwritten note by the deceased, as to a suggestion that he, the deceased, was trying to continue the relationship. Exhibit G stated in part: "…I've told you before that if you and Kathy get back together I want you to move out …"
5. The evidence of Dr Van Vuuren, in particular, upon the matters referred to above in [252] and [254].
6. That on the applicant's version, once he had disarmed the deceased by taking the knife from him, there was no need to stab him in the location he did and using the force he did.
7. As to the evidence concerning the likely cause of the fracture of the hyoid bone, the applicant's account recorded in the ERISP did not refer to him "squeezing" or "pushing" the deceased's throat in self-defence", both of which Dr Van Vuuren had been asked to assume occurred during the course of her cross-examination.
8. The applicant's statement to Pastor Johnson in which he said he "lost it".
In relation to the relationship evidence referred to in (2) above, I consider that such evidence was of limited probative value as context evidence. As I have earlier stated, the evidence as to the relationship between the deceased and the accused was ambiguous and contradictory as illustrated by Exhibit G and the evidence of the deceased being angry on the day he was killed.
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Whether an Unreasonable Verdict
The determination of whether the verdict is unreasonable involves a question of fact and, inter alia, involves a determination whether notwithstanding that there is evidence upon which the jury may convict, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand: M v The Queen [1994] HCA 63; 181 CLR 487 at 492-3 referred to in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14] per French CJ, Gummow and Kiefel JJ.
This Court, of course, 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 had the benefit of having seen and heard the witnesses.
Whilst as a matter of law there was evidence in these proceedings to support a verdict of murder, the question for this Court on appeal is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The physical evidence that establishes that the applicant was seriously wounded by the deceased with a knife, together with the applicant's version in the ERISP that indicated a continuing or further attempt by the deceased to assault him after the knife was taken off him, are of central importance in the assessment of the whole of the evidence. Whilst there is evidence upon which a jury might convict, when all the matters established in evidence are considered I have concluded that it would be dangerous to allow the verdict of guilty to stand.
A reasonable doubt as to the applicant's alleged state of mind (intent to inflict grievous bodily harm) in my assessment of the evidence, inescapably arises on the evidence at trial. It established that in the course of a fight between the applicant and the deceased, the deceased attacked the applicant by deliberately inflicting serious injury to his left arm using the knife. Whilst in the course of the continuing violent struggle the applicant forcibly took the knife off the deceased, that did not stop the deceased from physically confronting the applicant in what by then had become a chaotic and violent situation culminating in the applicant holding the knife and swinging it in a type of sideways motion before he stabbed the deceased. The evidence establishes, as a matter of strong inference, that all such actions represented a continuous and rapidly unfolding series of events leaving very little time for reflection.
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Order Granting a New Trial
The power of this Court on an appeal against conviction to order a new trial is provided for in s 8 of the Criminal Appeal Act 1912. That section is in the following terms:
(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.
(2) Provision shall be made by rules of court for detaining the appellant until the fresh trial has terminated, or for ordering the appellant into any former custody.
The section gives a wide discretionary power to order a new trial but it in every case requires a sound exercise of the discretion: Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317, 321 per Gibbs J.
In the present proceedings I propose below a new trial order. On that basis, whether a second trial should proceed for manslaughter can be safely left to the discretion of the Director of Public Prosecutions, a discretion which it may be assumed will be exercised responsibly, having regard to this Court's observations before framing an indictment which the evidence is capable of supporting.
I propose that the appeal be allowed, that the conviction and sentence below be quashed and that a new trial be ordered.
WILSON J: I have had the advantage of reading in draft both the judgment of Hoeben CJ at CL and that of Hall J.
The facts of the matter and the evidence that was before the jury have been fully set out in both judgments, and I do not propose to repeat them.
Ground 1: The verdict was unreasonable and cannot be supported on the evidence
In considering this ground this Court must make its own assessment of the evidence in order to determine whether, on the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the murder of Mr Lomas: M v The Queen [1994] HCA 63; 181 CLR 487; SKA v The Queen [2011] HCA 13; 243 CLR 400.
The Crown argues that it was open to the jury on the evidence before it to conclude that, in inflicting a single stab wound to the deceased, the applicant intended to inflict grievous bodily harm upon him. It relies upon the nature, extent and placement of the wound to establish the existence of that intention. Reliance is also placed upon evidence of the nature of the relationship between the applicant and the deceased, and upon purported inconsistencies in the accounts the applicant gave to others of what had taken place in the hours after the stabbing.
Having reviewed all of the evidence, and particularly, those aspects upon which the Crown principally relies, I am left with a reasonable doubt as to the applicant's guilt for the crime of murder. In my view, none of the aspects of the evidence cited by the Crown have the significance that the Crown argues for.
I agree generally with the analysis of Hoeben CJ at CL, and so my comments will be brief.
I do not think that the evidence of the injuries to the deceased can be made to do the work the Crown suggests it can. That is particularly so having regard to the qualifications to the evidence of the forensic pathologist who conducted the post-mortem examination of the deceased in cross-examination. Both Hoeben CJ at CL (at [89]) and Hall J (at [251]) have referred to the doctor's evidence on the possible significance of the broken hyoid bone. In short, Dr Van Vuuren could not exclude the possibility that the injury was inflicted during the course of a defensive action by the applicant. Similarly, whilst the evidence was that the fatal stab wound was inflicted with a moderate to severe degree of force, that does not of itself preclude it from having been inflicted as the applicant swung out with the knife in his own defence, as he said he did (at Q&A88 of the ERISP), and as Dr Van Vuuren conceded was possible.
That the deceased had some minor lacerations, interpreted as defence wounds, has to be viewed in the overall context of what occurred. The physical evidence points clearly to a struggle between the applicant and the deceased for possession of the knife. Such injuries as the deceased displayed are readily attributable to this struggle. They do not, in my view, point without doubt to an attack upon the deceased by the applicant, which the deceased unsuccessfully tried to defend himself against.
Both Hoeben CJ at CL (at [106]) and Hall J (at [267]) have considered the significance of the relationship evidence and concluded that it could do no more than establish the volatile nature of the relationship between the applicant and the deceased. I agree with those conclusions. It would appear that there were incidents of violence between the applicant and the deceased, but such violence was by no means entirely attributable to the applicant. There was a reasonably significant body of evidence that established that the deceased had assaulted the applicant, on occasion with weapons including a knife. The relationship evidence could do little or nothing to support a conclusion that it was the applicant who wielded the knife with murderous intent on this occasion.
Whilst the Crown relies upon asserted inconsistencies in the accounts given by the applicant of the stabbing in the hours immediately following it to suggest that the jury was entitled to reject the applicant's claim of self defence, what seems significant to me is the degree of consistency in his accounts. There was certainly a delay in the applicant summonsing help, but that may indicate nothing more than the applicant's state of shock and distress following the stabbing. That he was extremely distressed is not in issue; that is the evidence of all witnesses who spoke with the applicant in those first hours, and it is very clearly his presentation in his recorded interview with police.
Despite the shock and distress under which the applicant was clearly labouring when speaking with his pastor and with police, he was entirely consistent in his assertions that the deceased had attacked him with a knife and, after being seriously injured, he had defended himself. Those accounts were available to the jury to use as some evidence of the facts asserted, given that the representations were made at a time when they must have been fresh in the applicant's mind: s66 of the Evidence Act 1995; Graham v The Queen [1998] HCA 61; 195 CLR 606.
Such inconsistencies as exist are minor, and do not detract from the overall consistency of the applicant's account. Having regard to the terrible wound inflicted to the applicant's arm, and the other physical evidence, the most likely scenario in my view is that the deceased attacked the applicant with a knife (perhaps in a drug fuelled rage given the level of methylamphetamine in his blood) and injured him; there was a struggle for the knife, during which the deceased sustained the "defence" wounds; and, having gotten possession of the knife, the applicant swung out believing it was necessary to do so in his own defence.
These events have to be considered in context: this was a violent and rapidly moving altercation between two individuals who had shared an emotionally fraught and perhaps ambivalent relationship. The incident was not one that would have lent itself to rational analysis of the options available to diffuse the situation.
Although I am loathe to disturb the verdict of a jury, a body which is almost always in a superior position to that of this Court to assess evidence given in its presence, in this case I am left with a pervasive doubt as to the applicant's guilt for murder.
Since there was no real dispute about the objective evidence, the advantage usually enjoyed by the jury over this Court is not an advantage that can address that doubt.
In my view, the evidence adduced in the Crown case was capable of establishing manslaughter by excessive self-defence, but it could not establish murder to the criminal standard. I therefore agree with the Chief Judge at Common Law that the verdict cannot stand.
I also agree with his observations (at [121]) that the Crown case will not improve if placed before a jury for a second trial. On all of the evidence there must be a doubt of the applicant's liability for murder. Accordingly, I would set aside the verdict of the jury, quash the conviction, and enter an acquittal in the applicant's favour.
Should the Crown decide to do so, there is sufficient evidence for the applicant to be tried for the manslaughter of Mr Lomas. In that regard, I agree with the observations of Hoeben CJ at CL at [121] - [123], and do not propose to address the remaining grounds.
Conclusion
I agree with the orders proposed by the Chief Judge at Common Law.
[13]
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Decision last updated: 29 May 2015