McDougall v R [2013] ACTCA 14

Court of Appeal (ACT)|2013-03-25|Before: Burns JJ

APPEAL AND NEW TRIAL - Appeal against conviction by single judge of ACT Supreme Court - Murder s 12(1) Crimes Act 1900 (ACT) - whether error in trial judge's finding beyond a reasonable doubt act or acts causing death of deceased not in self defence -whether error in addressing pathologist's evidence of cause of death -Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 -actions after constituted a substantial or significant contribution to the death of the deceased - trial judge entitled on evidence to find acts not in self defence - appeal against conviction dismissed

APPEAL AND NEW TRIAL - Appeal against conviction by single judge of ACT Supreme Court - Murder s 12(1) Crimes Act 1900 (ACT) - whether failure to take into account relevant consideration - no failure to acknowledge intoxication, knowledge of deceased's violent tendencies and deceased's possession of weapons - information correctly used as background and state of mind - trial judge entitled to give considerable weight to actions of appellant in the period after he killed deceased in determining the extent of intoxication upon cognitive faculties -appeal against conviction dismissed

APPEAL AND NEW TRIAL - Appeal against conviction by single judge of ACT Supreme Court - Murder s 12(1) Crimes Act 1900 (ACT) - whether failure to give adequate reasons for decision, s 68C(2) Supreme Court Act 1933 (ACT) - no failure in findings of fact and application of law - no failure to avert to subjective elements of self defence test - no error in summary of appellant's evidence - trial judge's reasons show clear rejection on the basis of the evidence of other witnesses - trial judge entitled, on witness evidence, to reject the appellant's evidence of circumstances of deceased's death - appeal against conviction dismissed

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438

R v Scott Alexander McDougall [2011] ACTSC 51

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

Zecevic v Director of Public Prosecutions [1987] HCA 26; (1978) 162 CLR 645

Crimes Act 1900 (ACT), s 12 (1)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 45 - 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appeal against conviction and sentence for the murder of Struan Bolas is dismissed.

2. The appeal against sentence for the murder of Julie Tattersall is dismissed.

IN THE SUPREME COURT OF THE ) No. ACTCA 45 - 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. Just after 10:30pm on Wednesday 10 September 2008, members of ACT Emergency Services Fire and Rescue were called to attend a house fire at 4 Raine Place Downer. Inside those premises they located the bodies of Struan Bolas and Julie Tattersall, both deceased. The appellant was charged with their murder. On 25 March 2011, after a trial by judge alone, he was found guilty of two counts of murder by Gray J. Subsequently he was sentenced to imprisonment for life with respect to each count of murder.

2. The appellant has appealed from his conviction and sentence for the murder of Mr Bolas, and from the sentence imposed for the murder of Ms Tattersall. Senior counsel for the appellant, Mr Hastings QC, informed the Court that the prosecution of the sentence appeal with respect to the murder of Ms Tattersall is contingent upon the appeal against conviction for the murder of Mr Bolas being successful. If his appeal against the conviction for murder of Mr Bolas in unsuccessful, the appellant does not press his appeal from either of the sentences imposed by Gray J.

3. The grounds of appeal from the conviction for the murder of Mr Bolas, as they appear on the Notice of Appeal dated 17 August 2011, are:

His Honour failed to give adequate reasons for his finding of guilt in relation to count 1.

His Honour was bound by section 69C [sic] of the Supreme Court Act 1933 to include the principles of law applied by the judge and findings of fact on which the judge relied. His Honour either failed to do so or did so in a way that involved contradictory findings of fact in relation to matters central to the issue of self defence.

His Honour erred in finding beyond a reasonable doubt that the acts committed by the appellant which caused the death of Mr Struan Bolas were acts not done in self defence.

His Honour placed unreasonable weight on the evidence of the witness Djokic in arriving at his decision in respect of the issue of self defence.
if the evidence of Djokic was to be accepted as the appellant's literal explanation of events, the account given by the appellant suggested that the blow that may have caused the death was a blow struck in self defence. His Honour failed to address the evidence of the pathologist Dr Dodd in determining whether the blow that caused the death was beyond what was necessary in self defence.

His Honour erred in not placing sufficient weight on the evidence of the accused.

His Honour made inconsistent findings of fact as to the circumstances surrounding Mr Bolas' possession of a meat cleaver immediately before the appellant committed the acts causing Mr Bolas' death.
His Honour in light of certain findings he made was obliged to consider matters subjective to the appellant in deciding whether or not he acted in self defence. These matters included the appellant [sic] level of toxication, his knowledge of Mr Bolas' violent tendencies and Mr Bolas' possession of weapons other than the meat cleaver. His Honour failed to consider these matters.

4. Whilst pleaded as separate grounds, the above are, for practical purposes, closely linked. The appellant's complaint with respect to the first ground of appeal is that the trial judge did not engage in a "transparent process of reasoning" in finding that the appellant had not acted in self defence in killing Mr Bolas.

5. We are satisfied that the appeal cannot succeed. It is convenient to begin with the second ground of appeal.

6. The appellant accepts that the trial judge correctly directed himself on the law of self defence as set out by the High Court in Zecevic v Director of Public Prosecutions [1987] HCA 26; (1978) 162 CLR 645, in the context of the definition of murder in this Territory found in s 12 (1) of the Crimes Act 1900 (ACT). Rather, the appellant complains that the trial judge found as a question of fact that the appellant was not acting in self defence when he struck the blow or blows that caused the death of Mr Bolas. There are a number of facets to this submission, as set out in the particulars pleaded by the appellant in support of it. In order to understand this ground of appeal it is necessary to refer to the evidence of the events surrounding the death of Mr Bolas, and of his personality and relationship with the appellant.

7. A number of written statements by friends or acquaintances of the participants in the events of 10 September 2008, which shed light on the character of Mr Bolas, were tendered by consent. In addition, oral evidence on this issue was given by David Castles, who had known Mr Bolas for some 25 years before his death and his Honour found that their friendship involved the consumption of alcohol.

8. The evidence, as summarised by the trial judge at [38]-[48] of his Honour's reasons, was:

Mr Bolas has been in a motorcycle gang and had "a few of his own issues with amphetamines" when he was "a lot younger" (18 to 20 years before his death);
He would drink alcohol heavily, and it was possible for him to become violent when he was drunk;

When he was intoxicated he may antagonise others or "have a bit of a stir with them";

When Mr Bolas was involved with the motorcycle gang he would "dabble in a bit of business with amphetamines and so on" and used to carry a knife;
For the last nine years of his life he stopped dealing drugs and was trying to get his life back in order;
He had, at some point, been in possession of weapons including firearms, a machete and an axe. He kept some weapons at his front door as a result of being attacked in his home, including a baseball bat;
He was a collector of Indian memorabilia and had a tomahawk hanging on the wall. He also had a meat cleaver hanging on the wall in the kitchen, which he used to cut up chicken carcasses;
Case notes and police reports demonstrated Mr Bolas had a disposition to aggressive and threatening behaviour involved with heavy drinking;
In a report relating to an incident in 2003, he was reported as being in possession of a knife, and is reported to have said to police "the knife is for self protection. What do you expect with the line of work I'm in".

9. Based upon this evidence the trial judge said at [48]-[49]:

Although I can accept that Mr Bolas had a violent disposition when affected by alcohol and had the capacity to make threats to inflict serious injury, I do not inevitably infer that on the occasion with which I am concerned, he behaved in that way. On the other hand the evidence lends support to the accused's evidence that it was Mr Bolas who came at him with the meat cleaver during the course of a drunken altercation.

It was also submitted on the accused's behalf that the past incidents that were the subject of two of the police reports, indicate that Mr Bolas persisted in struggling against police notwithstanding he was being overwhelmed in the struggle. This was said to show a propensity to continue in any struggle in which he might be involved. Apart from the significant circumstance that the struggle involved police officers to whom Mr Bolas had a particular attitude, that particular situation is so different as not to give me any confidence that Mr Bolas would have inevitably behaved in that way on this occasion. I do not, however, accept the proposition put on behalf of the accused that I can readily draw the inference that once Mr Bolas had begun his attack on the accused, he would "engage in that attack with considerable and sustained ferocity". That said, I accept the accused's account that Mr Bolas was first in possession of the meat cleaver and that he advanced towards the accused at the time of the event that resulted in his death.

10. His Honour found that the only evidence of a physical confrontation between Mr Bolas and the appellant came from a statement provided by a friend of Mr Bolas, Janette Collins, which was tendered by consent. His Honour stated that the aggression on that occasion seemed to be all on the appellant's part.

11. There was no eyewitness evidence of the events leading up to the death of Mr Bolas. There were three occasions when the appellant gave an account of what happened. The first account the appellant gave was to Stanley Djokic on the night of 10 September 2008. The second was given to Mr Castles when he visited the appellant at the Belconnen Remand Centre in March 2009. The third was given under oath at trial.

12. As at 10 September 2008, the appellant was living with Mr Djokic and his family in Queanbeyan, New South Wales. At about 10:00pm on 10 September 2008, the appellant returned to Mr Djokic's residence, awakening Mr Djokic. At that time the appellant was very agitated. Mr Djokic gave evidence of a conversation with the appellant:

What did you say to him?---What did I say? I said well what did you wake me up for, what's going on?

What did he say?---Am I allowed to use the same - - -

Yes?---I fucked up, I fucked up, I fucked up. And I said what do you mean, what do you mean? What are you talking about, what are you talking about?

Did he respond when you asked him that?---Yes.

What did he say?---He killed two people, they were murder [sic].

Did you ask him anything else about - - -?---Yes I asked him what do you mean, what do you mean? Yes.

Did he respond?---Yes.

What did he say?---He said we were fucking around if I remember correctly. Sorry about the language everybody. They were fucking around playing, just guys being guys I suppose on the piss. I don't know, they were just mucking around and one of the other, the other gentleman that passed away he had some object - yes.

HIS HONOUR: Yes. Perhaps - - -

MR HASTINGS: I object to the form of this, your Honour.

HIS HONOUR: Mr Djokic, what we want to know is exactly what he said. It doesn't matter what the language is?---Okay

But we do need to know the exact words that you say that Mr McDougall said at that time. So just try and concentrate on the exact words and just tell us what he said. Don't worry about the language?---Yes okay, thank you.

MR TODD: You indicate something about murdering two people. Did you ask him what he meant by that?---I asked him what happened, yes.

And he told you certain things?---Yes.

Can you tell the court what he told you happened?---He told me both of them were pretty blind and one guy, the guy that he murdered was swinging a meat cleaver, machete thing. I can't recall exactly that he said. He was just swinging it around and I said well what happened? And he said I blocked it and I said well what do you mean? He said I blocked it, I grabbed it and I swung it that way. And I said well what happened? He said he cut his throat.

We just need to put on the transcript the demonstrations you have made in respect of what Mr McDougall told you?---M'mm.

Earlier you indicated that the other gentleman was swinging the cleaver around or the machete?---Well he said he was mucking around.

Mucking around?---Yes.

Mr McDougall showed you how that gentleman was mucking around?---Yes.

What did he do when he showed you, that's Mr McDougall? Can you demonstrate for us what Mr McDougall demonstrated to you?---Well the other guy was swinging it around. Like he reckons he went like this. He kind of blocked it, he's grabbed it and he's swung it like that.

HIS HONOUR: Just pause there, Mr Djokic.

Thank you, Mr Todd, you can try and describe that.

MR TODD: I will.

We just need to get, Mr Djokic, each sequence onto the transcript so it [sic] someone reads it at a later time they know what you were doing?---Yes okay.

You said that Mr McDougall described the other person swinging the meat cleaver or machete around. Did Mr McDougall demonstrate in what hand the other gentleman had it?---No.

Did he use, did Mr McDougall use a particular hand when he was demonstrating that?---Yes.

What hand did he use?---Left.

When he was demonstrating with his left hand what was the action that Mr McDougall was demonstrating. Can we just show it? Now stop there. All right. I know this is difficult?---Yes, swinging it across this way at the gentleman that he took the object off, and straight in front of him.

All right. That's what Mr McDougall indicated to you, as I understand it, when he'd taken the weapon from the other gentleman?---Yes.

Right. If we can go back a couple of steps, where Mr McDougall said the other gentleman was swinging the meat cleaver or machete around?---Yes.

Mr McDougall demonstrated that?---Yes.

How did he demonstrate what the other man was doing? Right, stop there.

Did Mr McDougall use his left hand in demonstrating that, can you recall?---Yes.

When he was demonstrating that, you've indicated he had his left hand up in the air?---Yes.

And was moving it around in a circular motion?---Correct.

All right. Now, Mr McDougall then told you something about what he did - that is, what Mr McDougall did?---Yes.

What did he tell you he did?---He got it off him and swung it straight at him.

Right. Now, go back to the point where he took it off him - that is, Mr McDougall took it off the other gentleman. Did he demonstrate how he took it off him?---Yes, he just went like this, grabbed it like that.

Now, you are demonstrating what Mr McDougall showed you, with both hands up in the air?---Yes.

Just do that again, freeze it there. You have your left hand out extended, slightly bent at the elbow, and your right hand bent at the elbow, but over the top of the forearm of your left hand?---Yes.

That's what Mr McDougall demonstrated?---Yes.

MR HASTINGS: Level with his face?

MR TODD: Sorry?

MR HASTINGS: Level with his face?

MR TODD: Approximately level with your face?---Yes. He was standing right there, right next to me when he was showing me.

Now, Mr McDougall then told you something about what he did with the meat cleaver?---Yes.

What did he do?---He swung it straight at him.

First, before that, he took it from Mr - from the deceased man?---Yes.

Did he describe how he did that?---He blocked it, that's what he said, like, with his hands, and then somehow got it off him and then swung it straight back at him.

Right. And you are demonstrating, using your left hand?---Yes.

Is that the hand that Mr McDougall demonstrated to you?---Correct.

And it has a backward motion. If we would just start it again in slow motion, and it is a bent elbow around about your forearm around about slightly chest height?---Yes.

And you demonstrated moving in a backhand motion?---Yes.

Out to full extension or only part extension, did he describe?---Well, what he showed me was full extension.

All right. You just show me that for the purpose of this then. All right, and it's up in the air, slightly above shoulder level?---Yes, like that.

An upward swinging backhand motion?---Yes.

...

MR TODD: Thank you. What did he say?---Straight after, he said basically - I said to him, if I remember, "Did you try to help him" after he cut him. And he said, "He was fucked." I said "What do you mean he was fucked?" He said, "He was fucked. He was dead" He said, "I finished him off."

Now, before that, when he was "He was fucked", did he describe why?---Because he said blood was pissing out of his throat. He said he cut him. I said, "Well, didn't you try to help him?" He said, he goes, "He was fucked. Blood was just pouring out of his throat."

And was this after he demonstrated to you what he did with that backhand motion?---Correct.

That you described to the court. Did he mention something about the man's throat?---There was blood pissing out of it.

And then he said something about he had to finish him off, I think your words were?---Yes.

All right. Did he say anything else?---No, he just - he went over and over - well, after when he said he finished him off, he basically dropped down and he just - you know, just showed me what he did.

What did he show you?---he hooked in, you know, like maybe 10 blows, just, yes, just went off his head.

You say he went to the ground when he showed you that?---Yes, yes.

What position was he in when he went on the ground?---Who, the - Scott?

Yes, when he was demonstrating to you what he did?---He was just leaning over like that.

All right. When you say "leaning over"---? ---Because the other gentleman had hit the ground basically, that's the way I looked at it, yes.

All right. And Scott was demonstrating something with his hand?---Yes.

Which hand was that?---Left.

And what was he doing?---Swinging downwards.

And was that - where was - was his arm above the shoulder?---Yes.

And coming down to what point?---Basically to the ground.

How many times did he do that?---Quite a few times when you look at the whole event when I had him in the house. Quite a few times. I don't know, 20, 30.

...

Now, did he tell you why he was hooking in?---Well, I did - if I remember correct, I said to him, "Why didn't you try to help him?" He said, "He was finished, he was finished. He was fucked," so I finished him off.

...

Did he saw anything else in respect of the deceased male at that time?---No, just "Fuck him".

13. Significantly, there was no cross-examination of Mr Djokic suggesting that this conversation did not occur, or was in different terms.

14. Whilst the appellant was being held at the Belconnen Remand Centre awaiting trial, Mr Castles visited him in March 2009. Mr Castles testified that he visited the appellant to try to gain some understanding of why the appellant had killed Mr Bolas and Ms Tattersall. Mr Castles gave the following evidence about this conversation:

What did he tell you?---He mentioned the snippets that he doesn't remember quite the full story. He said when he finds out more about it he'll give me more information but as far as he was able to remember Struan was playing with the meat cleaver in the kitchen. Scotty took the meat cleaver of [sic] Struan and was spinning it around and then he went to sort of lash with the meat cleaver and then realised what he'd done and got Struan across the throat and it went from there.

In respect of the talking of the meat cleaver, did he demonstrate to you what Mr Bolas was doing?---Just an arm signal, yes. No he was saying that Struan was more or less on the, sort of right side of him and he was playing with the meat cleaver and just went around to swing like that and didn't realise what it was until the last minute and got Struan across the throat.

You've indicated that Mr Bolas was playing with the meat cleaver, is that correct? Did Mr McDougall demonstrate how Mr Bolas was playing with it?---No, just sort of spinning it in his hand and playing with it.

Mr McDougall then told you about what he did in respect of the meat cleaver. What did he tell you?---That he was playing with it as well and he just went to swing it out and as he looked around he didn't realise it impacted on Struan's throat and it went from there. He didn't give me much more information or coloured details about that.

15. It was not suggested to Mr Castles in cross examination that this conversation had not taken place, or that it was in different terms. Indeed, the appellant gave evidence that he had been frank with Castles in this conversation.

16. The appellant presented a somewhat different picture of these events when he gave evidence. The appellant testified that he had had a problem with drinking since he was 18 years old. As at 10 September 2008 he was consuming alcohol. At that time he was living with Mr Djokic, whom he had known for six or seven years. He had known Ms Tattersall since he was 15, but had only met Mr Bolas in 2003 or 2004. He testified that he was introduced to Mr Bolas by Mr Castles, who warned him Mr Bolas could be violent and described him as "volatile", "dangerous" and "snappy". The appellant described observing an incident when Mr Bolas threatened someone with a knife at his house, in or before 2005. He also described Mr Bolas antagonising people and pushing them around, sometimes leading to physical confrontation. He said he saw "heaps of weapons" at Mr Bolas' house, including a taser, two shotguns, a tomahawk and a meat cleaver.

17. On the morning of 10 September 2008 the appellant commenced drinking alcohol at about 9:00am. In the next 40 minutes he consumed about 40 per cent of a bottle of bourbon. He arranged to meet Ms Tattersall at her home in Ainslie. He subsequently consumed further alcohol at her home. He then purchased a bottle of bourbon at a hotel. During the course of that purchase he assaulted an employee of the hotel. Subsequently, he and Ms Tattersall went to Mr Bolas' house.

18. At Mr Bolas' house he consumed further alcohol. The appellant described himself as "pissed" when he arrived at Mr Bolas' house, assessing his level of intoxication as eight and a half or nine out of ten. Mr Bolas consumed alcohol with the appellant, both of them consuming the bourbon the appellant had purchased. At this time they were seated in the kitchen. The appellant testified that the conversation between him and Mr Bolas became heated when he told Mr Bolas that he had heard that a person named Ellie, who had stayed with Mr Bolas the week before, was going to inform on someone to the police.

19. The appellant stated that in the circles in which he and Mr Bolas moved, cooperating with the police was considered "disgusting". He believed Ms Tattersall joined in this conversation, at which point he said that he'd "heard something about her as well", meaning that he had heard she was talking to the police. He said both Mr Bolas and Ms Tattersall became angry, to the point where Mr Bolas "was going to lose the plot".

Well then what happened - sorry, during the conversation that you've talked about, had you seen the cleaver?---Yes.

Where was that?---The table.

Had it been there all the time?---Yes, I think so. I think so.

When you say, "on the table", are you referring to the round table in the middle of the dining room?---Where we sit. There's all sorts of crap on there. It didn't - to me it didn't seem out of place at the time.

And did something happen as this argument escalated?---Yes.

What?---Well he's picked up the meat cleaver and come at me, simple as that. I don't know the words he used but it was in the middle of saying something towards me.

Were you sitting in the seat that you'd marked---?---At the time.

---on the sketch?---At the immediate time I was, yes.

And in what way did he come at you with the cleaver?---Like a standard come straight over at me [sic].

What did you do?---Defended myself, just blocked him at first.

Could you describe the movement?---I don't know.

His movement as he came towards you?---I don't really 100% recollect it but I do recollect just him coming down at me with it.

Was the cleaver down by his knees or somewhere or---?---No.

---what position was it being held by him?---Like anyone else would come at you with it, over your shoulder coming down.

When you say you defended yourself what did you do?---I just, I raised my hands and somehow I tried to grab his arm. Anything I could get hold of to stop it connecting with me.

What did you think his intentions were as he came towards you?---I just thought he was, I don't know, I thought I might get killed. I might get - I don't know. It's just too quick to think. All you know is that you react because you're in mortal fear, it's instant.

I think you've said you don't recall precisely but the end result was that you actually got the cleaver from him did you not? And then what happened?---Just started fucking lashing out, just lashed out.

Do you remember precisely what you did?---No.

Julie Tattersall, of course, was there and she ended up deceased as well. Do you remember what happened in relation to her?---No. I remember after it.

Do you have any recollection of her being there or being involved in the altercation that occurred between you and Mr Bolas?---Not so much. I thought there was [sic] other people in the room.

Well what do you mean by that?---Well, I just thought there was other people there, they may get involved. It's an instant thought. I just, knew there was more than one person coming at me sort of thing.

Did you think that included Julie?---I didn't think anyone's name, anyone in particular.

What about the two males who were there earlier as you described? Do you recall what happened to them or with them?---Not exactly. I do remember hearing a screen door vaguely at---

At what stage?---It's that hazy I don't 100% know. It's frustrating myself.

When you say the screen door, is there a screen door on the front door of the house?---Yes, yes.

Do you recall at what point in the altercation you remember that screen door sound?---No.

What do you remember next?---I was sort of on my knees.

Where?---yes, next to - in front of Struan.

Where was he?---On the ground.

Whereabouts?---Somewhere in front of the table.

What did you observe?---Death.

Did you see that he'd been badly injured?---He's dead, he's killed.

Did you see where Julie was? Where was she?---She was over the left a bit.

Did you see what condition she was in?---Yes.

What was your reaction to that?---Same reaction for both.

Which was?---It's a mixed, I mean, it's devastation, it's fear.

At any time had you intended to kill Struan Bolas?---No I never, no.

Had you ever intended to kill Julie Tattersall?---No way in the world.

21. The appellant testified that he had no recollection of demonstrating to Mr Djokic how he had used the cleaver on Mr Bolas, and also had no recollection telling Mr Djokic that, after he struck the first blow, Mr Bolas was "fucked" and he "finished him off". He denied having "finished off" Mr Bolas. He also denied other aspects of the conversation with Mr Djokic, including that blood had been "pouring out of the throat" of Bolas after he struck the first blow.

22. In cross-examination the appellant testified that he is about six foot tall and weighed about 100 kg. He accepted that he was taller than Mr Bolas. At that time Mr Bolas was 46 years old, weighed 83 kg and smoked a lot when he was drinking alcohol. The appellant accepted that he was a fit young man and did not cavil with the Crown prosecutor's description of him as a strong man. The appellant agreed that he disarmed Mr Bolas after a struggle, so that he then had the cleaver. It was put to him that, at that point, Mr Bolas was no longer a threat, and he replied "Well I can't - I honestly can't remember. After a particular point it's gone". When it was suggested to him that he lashed out at Mr Bolas on more than one occasion with the meat cleaver, he said "Like, it goes blank mate, I'm telling you".

23. There was other, important evidence relevant to the circumstances in which Mr Bolas met his death. The source of this evidence was the pathologist, Dr Malcolm Dodd. With respect to Mr Bolas, Dr Dodd's Autopsy Report dated 22 December 2008 detailed the following injuries:

A large injury complex measuring approximately 230 x 150 mm involves the entire left side of head, face and neck/jaw.

The injury complex consists of numerous intersecting incised injuries which involve in one plane, a vertically oriented incised defect measuring approximately 165 mm in length which extends through the left frontal cranium, orbit and left maxilla and an incised injury extending through the upper neck/mandible area in an oblique fashion which measures approximately 110 mm in length which has excised through [sic] the inferior one-half of the left mandible and chin.

A transverse oriented incised injury, measuring approximately 110 mm in length which extends over the right cheek to completely incise the nose and nasal septum in continuity with trauma involving the left maxilla.
The frontoparietal surface of the left cerebral hemisphere is on view in continuity with extensive disruption of the middle third of face and disarticulation of mandible.

Examination of the large complex area of trauma indicates at least five to six independent blows with very likely, a multiplicity of further blows superimposed over the cental [sic] region of maximal trauma.

Examination of the left auricular region discloses complete transaction of the outer helix of the left ear with shaving of the skin exposing the subjacent mastoid process.
A vertically oriented incised injury measuring 65 mm in length extends through the mid forehead between the eyebrows and over the left side of the nose.
Examination of the right cheek/ear region discloses a transverse oriented incised defect measuring approximately 55 mm in length which has transacted the pre auricular region and the entire outer helix, extending into the auditory canal with partial exposure of the mastoid process.
Examination of the apex of the scalp discloses a flap of skin in tandem with an incised injury measuring approximately 55 mm in length exposing a subjacent cranium.
Examination of the left parietooccipital region discloses a vertically oriented incised defect measuring approximately 60 mm in length exposing subjacent fractured cranium.
Examination of the anterior and left lateral surfaces of the neck discloses a transverse oriented incised injury measuring approximately 100mm in length overlying the laryngeal cartilage in tandem with transaction of subjacent strap muscles; the carotid artery appears intact.

A large somewhat irregular incised defect measuring approximately 200 mm in length is located over the elbow extending both medially and laterally, exposing subjacent incised musculature with a vertically oriented incised injury through the distal humerus/articulation with severance of the medical condyle and further slicing through the articulations of proximal heads of both radius and ulna.

Examination of the posterior forearm discloses a transverse oriented incised defect measuring 14 mm in length.
The dorsum of wrist, hand and fingers shows marked blackening.
Examination of the tip of the third digit shows an incised defect with full amputation through the distal phalanx and superior two-thirds of nail bed.
Examination of the fourth digit discloses an oblique orientated incised defect which has severed the middle phalanx dorsally.
Examination of the medial surface of the fifth digit shows a ragged irregular 50 mm incised defect exposing subjacent bone shafts.
Examination of the hypothenar eminence shows a shallow incised defect measuring approximately 25 mm in length.

24. The injuries spoke of a substantial and brutal attack on Mr Bolas by the appellant.

25. The first complaint by the appellant under the second ground of appeal is that the trial judge "placed unreasonable weight on the evidence of the witness Mr Djokic" in determining that the accused had not been acting in self defence when he did the act or acts that caused the death of Mr Bolas. This suggestion should be rejected.

26. The appellant did not make any written submissions as to why the evidence of Mr Djokic was unreliable or should not be given the weight his Honour gave it. This is unsurprising, given the absence of challenge to it in cross-examination.

27. The appellant's statements to Mr Djokic constitute his first, and most contemporaneous, exposition of the events of the evening in question. During the trial, the appellant professed no memory of many of the events of that evening, including events that he had described in some detail to Mr Djokic. The trial judge was entitled to give considerable weight to the evidence of Mr Djokic. In assessing the weight to be given to the evidence of Mr Djokic on the crucial point of the circumstances in which Mr Bolas was in possession of the meat cleaver immediately before his death, the trial judge was entitled to take into account the extent to which the evidence of Mr Djokic concerning the statements made to him by the appellant was supported by the statements later made to Mr Castles by the appellant at the Belconnen Remand Centre. Mr Djokic said the appellant described the circumstances as "fucking around playing, just guys being guys I suppose on the piss". To Mr Castles, the appellant said that Mr Bolas was in the kitchen playing with a meat cleaver when the appellant took the meat cleaver away from him and was spinning it around "and then he went to sort of lash with the meat cleaver and then realised what he'd done and got Struan across the throat and it went from there". In his evidence the appellant suggested that, in the conversation with Mr Castles, he was "just trying to give him an answer", by which we understand him to mean that the version he gave to Mr Castles was either fabricated or reconstructed. However, the similarity between the description of Mr Bolas and the appellant "playing around" with the meat cleaver in this version, and the description of them "fucking around playing" in the description he gave to Mr Djokic makes this implausible. In addition, in his evidence in chief the appellant said he had been frank with Castles during the conversation at the Belconnen Remand Centre. The trial judge was entitled to give considerable weight to the evidence of Mr Djokic, and to the extent it supported Mr Djokic's evidence, that of Mr Castles.

28. The second complaint made under the second ground of appeal suggests that the evidence given by Mr Djokic was consistent with "the blow that may have caused the death" of Mr Bolas being struck in self defence, and that the trial judge failed to address the evidence of the pathologist, Dr Dodd, in determining whether "the blow that caused death" was beyond what was necessary in self defence. We are of the view that there is no substance to these points.

29. If anything, the versions given by the appellant to Mr Djokic and Mr Castles of the events leading up to the appellant striking the first blow to Mr Bolas suggest the first blow may have, in fact, been accidental rather than being struck in self defence. The problem is that this version does not sit well with the physical evidence, as the appellant undoubtedly appreciates. If the appellant had injured Mr Bolas accidentally while they were both playing around with the meat cleaver, it is simply not credible that he did not try to assist Mr Bolas, or to call for assistance from Ms Tattersall or emergency services. The injuries to Mr Bolas speak of a sustained and frenzied attack, inconsistent with accident. Viewed in its entirety, the evidence of Mr Djokic is not consistent with the appellant's case that he lashed out at Mr Bolas with the meat cleaver in self defence.

30. In his reasons, the trial judge found that the appellant's account to Mr Djokic of Mr Bolas and the appellant just "fucking around playing" was an accurate account of what happened. The trial judge then went on to say at [113]:

If there was any fear of any threat to the accused as a consequence, I do not think the accused appreciated it as other than a need to take the cleaver from a drunken Mr Bolas. It should not have incited the accused's extreme reaction to it but having reacted as he did in disarming Mr Bolas of the cleaver and in then "lashing out", there was no further call for apprehension on the accused's part. Everything that the accused did from that point was not necessary for his self defence, nor do I accept as a reasonable possibility that he believed it to be so.

31. In this passage the trial judge has, perhaps generously, adopted the most favourable view of the facts consistent with his finding that the appellant and Mr Bolas had been "playing around" with the cleaver before the appellant gained possession of it. His Honour has approached what happened on the basis that the appellant had some apprehension for his own safety as a result of the cleaver being wielded, albeit in play, by a drunken Mr Bolas. In this approach, his Honour has included the initial "lashing out" by the appellant under the aegis of those acts that may have been committed by the appellant in self defence.

32. As we understand the second half of this complaint, the appellant suggests that the first blow delivered to Mr Bolas, during the lashing out, may have been the cause of death, in which case, he says, he was entitled to be acquitted. This submission depends upon the appellant showing that the evidence raised as a reasonable possibility that the first blow with the meat cleaver was the cause of death.

33. The pathologist, Dr Dodd, was unable to identify any single injury inflicted on Mr Bolas as the cause of death. Dr Dodd said in cross-examination:

MR HASTINGS: You said when describing the cause of death of the female deceased that it was a rather simplistic expression of your view to say that it was multiple application of sharp force trauma to the head and neck?---Yes, that's correct.

And I think you've used essentially the same formulation in relation to the male deceased, have you not?---Yes, I have.

Did you describe that observation as simplistic because it, in fact, is a quite complex task to endeavour to specify a particular blow or injury which might have been the cause of death?---Yes. Yes, that is exactly right. When you have multiple applications of sharp force trauma to this degree you've got immediate and acute blood loss to the external environment, blood loss internally as in both cases, aspiration of blood into the major airways so that creates a degree of asphyxia if you like. We have bruising and bleeding around the brain, in one case, at least and certainly in Bolas' case bleeding around the brain stem which can lead to cardiac arrest and also blood within the ventricle system which can lead to sudden death as well. So there are many, many things that come from the applications of these forces. But to try to divide them up, even give them priority, is very difficult, so it's best to deal with them in within [sic] a generic sense.

Yes. And is it fair to say that any one of a number of the blows could have resulted in bleeding which ultimately, if untreated, could have caused death?---Yes. In particular the severance of the carotid artery on the left side in the case of Bolas would lead to very, very extensive arterial spurting, very acute blood loss, loss of blood pressure and death. In both cases there is quite a lot of blood within the airways from the open wounds and bleeding internally so aspiration of blood is high on the list as an immediate cause of death as well.

Apart from that injury were there, in both cases, other injuries which alone could have caused death if untreated and bleeding allowed to result?---I think the most significant injuries are in isolation probably the ones to the front of the neck in both cases. Anything beyond that is very hard to decide. If you're taking each injury in isolation, one only, then potentially they are possibly survivable but as an aggregate they all add up to acute blood loss and all the complications that come from that.

34. In Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, Mason CJ addressed the issue of causation in the context of a jury trial in terms that are equally applicable to trial by judge alone (at 387):

The issue of causation was left to the jury to decide as one of fact. In this respect I agree with the statement made by Burt CJ in Campbell v The Queen that it is "enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter." (citations omitted)

35. Similar observations were made by Toohey and Gaudron JJ (at 423):

Burt CJ's comments have much to commend them. In particular, there is little to be gained, but there is a risk of confusion, if the members of the jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased's death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause; Reg. v. Butcher; Reg. v. McKinnon. In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death. (citations omitted)

36. Deane and Dawson JJ (at 411) used the formulation that the act of the accused must be "a substantial or significant cause" of death, while McHugh J (at 441) employed the phrase "sufficiently significant".

37. It appears to us that there is no real distinction between the tests as so expressed by the members of the Court in Royall, but if there is it is of no practical consequence in this case. The cause of the death of Mr Bolas was blood loss from multiple injuries inflicted by the appellant with the meat cleaver. Dr Dodd's evidence was that Mr Bolas may have survived any one of the injuries inflicted, if inflicted in isolation, but the first blow was not delivered in isolation. It was immediately followed by numerous further blows, the consequence of all of which was blood loss and death. Even if one accepts the proposition that the first blow was delivered in circumstances where the appellant was entitled to claim self defence, it is fanciful to suggest that his actions thereafter in "finishing off" Mr Bolas did not constitute a substantial or significant contribution to his death.

38. In the course of his submissions Mr Hastings criticised the finding of the trial judge that the appellant had not been acting in self defence after he delivered the first blow, pointing to the evidence that Mr Bolas had a violent disposition and access to weapons. We consider that the trial judge was entitled to find as he did. The appellant described to Mr Djokic the condition of Mr Bolas after that first blow in these terms: "He was fucked". Clearly, the appellant was conveying to Mr Djokic that, in his opinion, Mr Bolas was severely injured. Again, it is fanciful to suggest that the appellant, younger, taller, heavier and stronger than Mr Bolas, and possessed of a meat cleaver, saw the badly injured and unarmed Mr Bolas as a threat at that time, or that he thought it necessary for his self defence to engage in the further sustained attack on Mr Bolas that is revealed by the pathologist's report and other evidence.

39. The fourth particular to the second ground of appeal alleges that the trial judge made inconsistent findings of fact surrounding Mr Bolas' possession of the meat cleaver immediately before the appellant committed the acts that caused Mr Bolas' death. As we understand it, this is based upon the trial judge's findings that the beginnings of the incident leading to the death was "a game gone wrong", but at the same time acknowledging that the initial "lashing out" with the meat cleaver by the appellant could be characterised as an act done in self defence. In our opinion there is no inconsistency in these findings. The application of force by person A to person B may be excused as an act done in self defence where the act done by person B which provokes the response by person A is done without malice. In the present case, the trial judge found that Mr Bolas was not attacking the appellant with the meat cleaver. This is not inconsistent with the appellant being concerned for his safety in the presence of a drunken Mr Bolas wielding the meat cleaver. Whether that concern was about an attack by Mr Bolas or being injured accidentally is not to the point. The two findings made by the trial judge are not inconsistent.

40. The fifth particular of the second ground of appeal was not pressed in its original form. This is understandable, as a plain reading of the trial judge's reasons makes the appellant's complaint untenable. It is apparent that his Honour took into account the appellant's level of intoxication, the appellant's knowledge of Mr Bolas' violent tendencies and Mr Bolas' possession of weapons.

41. As finally argued, the appellant's complaint was that the trial judge did not "adequately acknowledge" these circumstances. This is not a fair assessment of the trial judge's reasons. His Honour gave over a considerable part of his reasons to an examination of Mr Bolas' personality and character, the relationship between Mr Bolas and the appellant, Mr Bolas' history of violence when drunk and his history of possession of weapons. His Honour, with respect, quite correctly used this material as background in evaluating what happened and the appellant's state of mind at the relevant times.

42. Mr Hastings stressed the necessity when evaluating the issue of self defence to take into account the appellant's level of intoxication. The pathologist estimated the appellant's blood alcohol concentration (BAC) at the time of the deaths as between 0.21% and 0.28%, based on the appellant's BAC of 0.162% some six hours later. The trial judge addressed the appellant's level of intoxication in his reasons at [100] and [106]-[107]:

The accused's evidence as to what he recollects of the events indicates the contrary. The accused's recollection of the altercation with Mr Bolas, his recall of what Mr Bolas did and his responses all indicate that his cognitive functioning was not materially impaired at the time. It may also be noted that the actions which he recalls after the event, in deliberately setting fire to the premises to try to get rid of the evidence, driving a motor vehicle to Mr Djokic's premises and giving an account of his actions to Mr Djokic, are all indicative of his cognitive functioning not being affected to any critical degree.

...

I am not, in the circumstances of this case, prepared to infer a consciousness of guilt as to the murder of the deceased from the accused's conduct. It seems to me that the accused's actions after the event are equally consistent with the accused's belief that no-one would believe him as to the circumstances as he says that he perceived them to be. Nevertheless, I consider that the accused's actions after the event demonstrate a degree of appreciation of what had happened and how it might be viewed by others. In other words, a process of rational reasoning.

I further think that the deliberate act of setting fire to the premises and his later actions, displayed a cognitive appreciation of the circumstances in which he found himself despite the considerable amount of alcohol that the accused had consumed. It is that appreciation and the conversation that he later had with Mr Djokic when he returned to the place where he was staying, that I find most telling in inferring what he knew and intended at the time he inflicted the blows on Mr Bolas and Ms Tattersall.

43. The trial judge clearly took account of the appellant's level of intoxication at the time of the deaths in determining whether the Crown had established that he was not acting in self defence when he killed Mr Bolas. His Honour was entitled to give considerable weight to the actions of the appellant in the period after he killed Mr Bolas in determining the extent that his intoxication affected his cognitive faculties. This complaint must be rejected.

44. We think it at least curious that the appellant would not clearly articulate to Mr Djokic and Mr Castles a claim that he acted in self-defence in killing Mr Bolas, if that was indeed the case. In his evidence at the trial he was able to clearly assert that he was acting in self defence when he struck the first blow to Mr Bolas, yet in neither of the versions that he gave to Mr Djokic or Mr Castles is this clearly raised. In fact, the version of events he gave to Mr Castles is inconsistent with self defence. The appellant testified that when he spoke to Mr Castles, he was trying to give Mr Castles an explanation for what he did. He said he was frank in what he said to him. A claim that he had acted in self-defence when he struck the first blow would have been an explanation. If it was true, why would he not have given that explanation to Mr Castles?

GROUND OF APPEAL 1 - FAILURE TO GIVE ADEQUATE REASONS

45. Turning to the first ground of appeal, the appellant complains that the trial judge's reasons were inadequate in that:

His Honour failed to direct himself sufficiently in relation to the application of relevant legal principle to the facts of the case at hand;
His Honour did not advert, or sufficiently advert, to the subjective aspects of the self defence test;

No reasoned assessment of the reliability of the appellant's sworn evidence was made; and

His Honour gave no reasons for preferring the evidence given by Djokic of the appellant's account of the events to the account given by the appellant in the witness box.

46. Section 68C(2) of the Supreme Court Act 1933 (ACT) provides:

The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.

47. The High Court considered provisions similar to s 68C(2) in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 and AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438. In Fleming the Court held (at [28]) that a provision in identical terms to s 68C(2) was not satisfied:

merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.

48. In the later case of AK, the Court considered s 120(2) of the Criminal Procedure Act 2004 (WA), a provision almost identical to s 68C(2) of the Supreme Court Act 1933 (ACT), and Gummow and Hayne JJ, citing Fleming, said (at [44]):

Section 120(2) requires that the judge's reasons include the principles of law that he or she applied. The principles of law that are relevant will be identified by reference to the issues in the case. Usually then a trial judge will be obliged to identify and record in the reasons what are the elements of the offence in question and which of these elements were in issue. Resolution of the issues in the case will then require not only statement in the reasons of both the principles of law that are applied and the findings of fact the judge makes, but also statement of "the reasoning process linking them and justifying the [findings of fact] and ultimately the verdict that is reached".

49. The appellant submits that the trial judge's reasons did not comply with the requirements of s 68C(2) in several respects, as set out in his written submissions on the appeal:

Firstly...His Honour failed to direct himself sufficiently in the application of relevant legal principle to the facts of the case at hand. His Honour did not advert, or did not advert sufficiently, to the subjective aspects of the self defence test. Secondly, no reasoned assessment of the reliability of the appellant's sworn evidence was made. Given the appellant has asserted a knowledge of the violent proclivities of Mr Bolas informed his response to the nature of the threat some findings as to that matter need [sic] to be made. Further, reasons were not given as to why His Honour preferred the account given to Mr Djokic (as that account was interpreted by His Honour) to the account given by the appellant in the witness box as to how the physical aspects of the fight between them began.

50. The first complaint by the appellant under this ground of appeal is unsustainable. The trial judge made findings of fact as to the events leading to Mr Bolas' death. He then applied the correct law to those findings of fact. The appellant's real complaint is that he is dissatisfied with the findings of fact made by the trial judge, but, as we have already noted, those findings were open to his Honour on the evidence.

51. With regard to the appellant's second complaint, it is quite clear from the trial judge's reasons that he was alive to those aspects of the evidence relevant to the subjective part of the self defence test. His Honour spent some considerable time examining that evidence in his reasons for that very purpose. After considering the relevant evidence, and correctly directing himself on the law of self defence, including the subjective part of the self defence test, his Honour found as a question of fact that the appellant did not hold a belief at the relevant time that it was necessary to do what he did to Mr Bolas in self defence.

52. Finally, turning to the appellant's final two complaints, the trial judge summarised the evidence of the appellant at [67] - [80] of his reasons. No complaint can be made about this summary. Whilst it is true that his Honour did not, in terms, reject the evidence of the appellant as to the circumstances surrounding Mr Bolas' death, it is quite clear that he did reject key aspects of that evidence. His Honour did, however, make comments on the reliability of the appellant's evidence when recounting it; for example, he rejected the impression given of the presence of other persons during the heated conversation. It is quite clear that his Honour rejected the implication in the appellant's evidence that Mr Bolas had attacked him with the meat cleaver in the course of a heated argument. Clearly, the trial judge rejected that evidence because of the evidence given by Mr Djokic and, perhaps, Mr Castles. In particular, the account of the events given by the appellant to Mr Djokic persuaded his Honour that the account given by the appellant should be rejected. This is not surprising, for, as his Honour said, the appellant did not dispute Mr Djokic's account of that conversation, and it was a nearly contemporaneous account given by the appellant to someone he trusted. His Honour expressly relied on this reason for referring to that evidence so extensively and, as his Honour also said, as it was unchallenged by the appellant. His Honour was entitled, in the light of Mr Djokic's evidence, to reject the appellant's evidence, as he did, on the vital issue of the circumstances leading up to the appellant striking Mr Bolas with the meat cleaver.

53. It was open to the trial judge to make the findings of fact that he did concerning the death of Mr Bolas. His Honour correctly identified the law relevant to the issues raised at trial, and in particular the law relevant to self defence. His Honour's reasons sufficiently identified the process of reasoning by which he founds the facts and applied the law to the facts as found, and concluded that the appellant was guilty. The appellant's appeal against conviction and sentence for the murder of Mr Bolas must be dismissed. The appeal against sentence for the murder of Ms Tattersall should also be dismissed, as the appellant made it clear that it was only to be pursued if his appeal against conviction for the murder of Mr Bolas was upheld.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: Mr P S Hastings QC with Mr K Archer

Solicitor for the Appellant: Legal Aid ACT

Counsel for the Respondent: Mr J White with Dr K Weston-Scheuber

Solicitor for the Respondent: ACT Director of Public Prosecutions

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