Mencarious v The Queen

Background

1. In the 2008 appeal judgment, McClellan CJ at CL (with whom James and Fullerton JJ agreed) outlined the events leading up to the victim's death, at [5], as follows: "[The applicant] and his wife were estranged. Because of [the applicant's] previous treatment of her Ms Youseff had obtained an apprehended violence order (the AVO). There was one child of their union. Notwithstanding their difficulties and in breach of the AVO [the applicant] and his wife arranged to spend the evening of 14 December 2004 together in an hotel. At the time Ms Youseff was staying at a refuge and [the applicant], concerned about the consequences of breaching the AVO, arranged to pick her up in his car at a bus stop. He had previously purchased some alcohol, including a bottle of Bourbon. They went to the hotel where they checked in. In their room they had some drinks, ordered and consumed pizza and watched some television. After a time they had intimate relations. There was also some talk between them about the possibility of a reconciliation in the future. However, the atmosphere changed when the discussion turned to the possibility of [the applicant] sponsoring Ms Youseff's brother to come to Australia. This subject had been the cause of substantial friction in the past. [The applicant] apparently believed that Ms Youseff's primary concern was for the welfare of her brother and this was the reason for her apparently affectionate response toward [the applicant]."
2. McClellan CJ at CL noted that the applicant gave evidence at trial. The applicant said that he told Ms Youseff that their relationship was finished. She started screaming for help in Arabic, although he was doing nothing to harm her. The applicant became alarmed and put his left hand over her mouth to stop her screaming, prompting her to bite his middle finger "furiously", causing him "enormous pain". They were "struggling" and "fell … off the bed and onto the floor" with his finger still in her mouth. He grabbed the bottle of bourbon and repeatedly struck her on the head with it. The applicant gave evidence that, at that point: "… my finger was still in her mouth. At that stage she - I was leaning forwards and she was leaning forwards, we were on our knees parallel to the bed and the bottle was no longer in my hand. I had assumed at the time that it had broken because I felt all wet, everything that was in the bottle was, I was covered in it. My finger was still in her mouth, my right arm was free, no longer with the bottle, and I just pulled my finger out after a while tearing the skin. … Once I released my finger I felt enormous relief, the pain was really excruciating at the time and within seconds I think of my finger coming out of her mouth with her on her knees, she was leaning forward that whole time with me leaning over her, I was actually leaning on top of her. I'm not sure how much pressure I was applying on top of her with my hand on her face and my finger in her mouth so that she was in a kneeling position, suddenly she just fell on her side and rolled on her back. Q: What did you do after that? A: Initially I didn't think anything but then when she was motionless I said: 'Nevine get up, Nevine get up'. I panicked, she was just not moving at all."
3. The applicant gave evidence that at that point he did not know if Ms Youseff had died. He did not touch her. He put his shoes on, walked down the fire escape to the car park and drove to a police station to report the incident. The applicant stated that he did not intend to kill Ms Youseff, stating that, before she screamed, his intention was to leave as he felt that the marriage would not work and that he had been "used". When the applicant was cross-examined as to his intent, he accepted that he had lost control of himself when he was in "excruciating pain" but maintained that he had remained "quite calm" up until that point.
4. Grove J, in his remarks on sentence, made findings with respect to the applicant's conduct on the night of Ms Youseff's death. His Honour noted, at [22], that the applicant's account was the only available testimony regarding what occurred in the hotel room after he had "engaged in sexual intimacy" with her and that the applicant appeared to be "contriving [his] answers" when giving evidence.
5. Grove J then found that: "23 Your version is that Nevine again raised the question of her family's migration to Australia and that you then realized that she was not seeking genuine reconciliation. I do not find this credible, and even assuming it to be so, your subsequent behaviour cannot possibly be justified. I observe that there is evidence of your purchase of liquor in that afternoon, other than the bottle of bourbon which you later wielded as a weapon, and that the post mortem sample later analysed detected no alcohol in Nevine's blood. The probability was that you were disinhibited to an extent by your consumption of liquor but, whatever triggered your attack, you struck your wife severe blows to the head with the bottle. Your explanation is that you did this to force her to release a bite hold on your finger. No doubt at some stage of a struggle, Nevine did bite your finger but the seriousness of this can be gauged by the extent of treatment which consisted of application of antiseptic and a bandaid. 24 Of more critical significance to my mind is the fact that Nevine did not die as a result of the savage beating which you inflicted upon her with the bottle. She died of asphyxiation. To the extent that it was suggested, albeit somewhat faintly, that this may have occurred when you had your hand over her mouth and nose because your finger was in her mouth, I reject the suggestion. 25 I am satisfied beyond reasonable doubt that, after the attack with the bottle you applied something to Nevine's mouth and nose and thereby killed her by asphyxiation. I am conscious of the absence of precise evidence demonstrating what the implement was and that the evidence does not establish that it was the pillow which was found in the room, but that absence of precise identification of what you used does not create any doubt in my mind about it being your act which caused the death by asphyxiation. I am further satisfied in all the circumstances that at the time you caused the death, it was your intention to kill your wife. 26 I am fortified in reaching the latter conclusion somewhat by your subsequent conduct. You were familiar with the hotel, having stayed there some nine or ten previous occasions, although this was the first occasion that Nevine had been there. You left the hotel after killing her, avoiding those areas where you might have been filmed by security cameras which were installed. You did not seek to contact reception in order to summon an ambulance nor did you do anything yourself about summoning assistance although in addition to a hotel phone you had a mobile phone with you. … 33 Your act was deliberate and separate from the attack with the bottle and, as I have found, it was intentionally fatal."
6. As noted by McClellan CJ at CL in the 2008 appeal judgment, at [76], the Crown case was that the applicant committed the murder of Ms Youseff by a deliberate act of asphyxiation: "The Crown case was that the act of asphyxiation was deliberate and that it occurred after [the applicant] had placed his hand across Ms Youseff's mouth and she had bitten one of his fingers. The Crown case was that the bite was not a significant wound and was attended to by some antiseptic and a bandaid when [the applicant] surrendered to the police. The Crown submitted that there was a struggle in which [the applicant] inflicted significant injuries to the deceased's body including breaking ribs and smashing her head a number of times with a bourbon bottle. The Crown emphasised the sequence of events including the use of the bottle to establish [the applicant's] intention."
7. As such, an essential issue which arose at the trial, relevant to the present application, was whether the applicant had deliberately asphyxiated Ms Youseff with the requisite intent or whether her asphyxiation was an accident.
8. At trial, two experts gave evidence as to the cause of Ms Youseff's death. McClellan CJ at CL, in the 2008 appeal judgment, summarised the experts' evidence as follows: "9 The forensic evidence confirmed significant physical injury to Ms Youseff. Dr Little, who carried out the autopsy, found the direct cause of death to be asphyxia. However, she also found that the injuries to Ms Youseff's head could possibly have contributed to her death. Upon examination she found bruising to the face and nose, small lacerations to the lining of her lips, lacerations to the scalp and significant injuries to the head. There was also bruising of her body. Three ribs were fractured. 10 Associate Professor Hilton was called by [the applicant]. He did not examine Ms Youseff's body. He was asked his opinion as to the cause of death and indicated that he was not as sure as Dr Little that asphyxiation was the direct cause. He said 'I would not quite have put it in one word asphyxiation.' He believed that asphyxia combined with aspiration causing a spasm and concussion from the blows to the head may have in combination been responsible. However, of significance to the resolution of this appeal was his opinion that 'I think there is enough indication that asphyxiation was a significant element, yes.' His disagreement with Dr Little was as to her conclusion that asphyxia was the one and only cause of death.'"
9. The defence case at trial, as summarised by McClellan CJ at CL, at [53], was that the applicant "responded to his finger being bitten and without criminal intent attacked and killed the deceased".
10. McClellan CJ at CL, at [45], contextualised the reason for defence counsel at trial taking this position as follows: "… Because the asphyxiation was undeniably caused by [the applicant], whatever the particular means, defence counsel was confined to a submission that this occurred accidentally in the sense that although [the applicant] was responsible he had not intended to kill or inflict grievous bodily harm … The trial judge and defence counsel agreed that the jury should determine the cause of death and then determine whether it was occasioned by accident or being deliberate was accompanied by the relevant intention."
11. In considering the issues of "Accident and self-defence" raised on appeal, McClellan CJ at CL, at [77], elaborated further on the issues of causation and intent: "Defence counsel accepted that the issue at trial was whether the act or acts of [the applicant] which caused the death were deliberate … Although my reading of the transcript causes me some hesitation it is conceivable that counsel came to this position because of a thoroughly considered analysis of the forensic options. The Crown did not ultimately seek to sustain the position that the asphyxiation was caused by a pillow. It must have been caused by something else capable of shutting off the deceased's capacity to breath. It is difficult to envisage that this could occur by accident and [the applicant] did not suggest any mechanism by which accidental asphyxiation could have occurred."

Part 7: The relevant legislative provisions and principles

1. The relevant legislative provisions are ss 78 and 79 of the Act. Section 78 provides: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister."
2. Section 79 provides: "79 Consideration of applications (1) After considering an application under section 78 or on its own motion - (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if - (a) it appears that the matter - (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."
3. The test to be applied in determining an application pursuant to s 78 was set out by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251. His Honour stated, at [6], that: "The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]."
4. Johnson J elaborated on what constitutes a "doubt or question as to guilt" as follows: "7 Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. 8 There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]."
5. These paragraphs have been cited with approval by Beech-Jones J, as his Honour then was, in Gillies, Max Perry - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [9]; by Garling J in Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061, at [7]; and by N Adams J in Application by Yu Hai Li pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 544 at [25].
6. It should be noted that since the judgment of Johnson J in Holland the Court of Appeal has eschewed reliance on language such as "unease or disquiet" when considering the test in s 79(2) of the Act. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, Basten JA (with whom Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreed) stated, at [65]: "This language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question' …"
7. In Svanda, Garling J observed, at [8], that the doubt or question as to guilt "is not narrowly confined". In that case, Garling J cited Basten JA in Sinkovich, where his Honour made the following comment, at [27], as to the scope of the inquiry: "The content of the condition as to which the judge must be satisfied is somewhat obscurely worded. The necessary state of mind requires a 'doubt or question' as to (i) the convicted person's guilt, (ii) any mitigating circumstances in the case, or (iii) any part of the evidence in the case. However, neither the syntax nor the nature of the various elements permits any precise identification of the scope of the condition. Thus, a doubt or question as to a person's guilt could involve a doubt or question as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent. That includes a doubt or question as to the fitness of the accused to plead: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [125] (Heydon J, with whom members of the Court other than McHugh J each agreed)."

The present application

1. In essence, the applicant's application pursuant to s 78(1) of the Act is based upon two propositions. The first is that the applicant's evidence at trial established that, immediately before Ms Youseff became motionless, the two of them had been in a particular position which may have inadvertently fatally obstructed her capacity to breathe through a mechanism known as "positional asphyxia". The second proposition, which the applicant contends arises from a report prepared by Professor Peter S J Ellis, consultant forensic pathologist, is that "positional asphyxia" may have been a cause of her death.
2. The applicant filed additional material in support of the present application. This material comprised the report of Professor Ellis, dated 30 July 2018, and an excerpt of a newspaper article titled "Dead inmate held by untrained guards".
3. Although s 79(4) of the Act provides that these are not judicial proceedings, the Court may consider any written submissions made by the Crown with respect to an application. The parties exchanged the following submissions: 1. Applicant's written submissions filed 8 September 2021. 2. Submissions on behalf of the Attorney General for New South Wales dated 15 December 2021. 3. Further submissions on behalf of the applicant dated 28 January 2022.

The report of Professor Ellis

1. The applicant filed the report of Professor Ellis, dated 30 July 2018, on 8 September 2021. Professor Ellis stated in his report that he had been supplied with certain material by the applicant and the applicant's sister: 1. The autopsy report prepared by Dr Little and the trial transcript of her evidence; 2. A "diagram" prepared by the applicant; 3. The remarks on sentence; 4. The two appeal judgments; 5. An excerpt of the trial transcript of the applicant's evidence; and 6. An excerpt of the transcript of an undated interview on ABC News Radio.
2. Item (2) was not reproduced in Professor Ellis' report. For the purposes of this application, I presume it was identical to a sketch ("the sketch") that appears in the applicant's application to the Court. The sketch is annexed to this judgment (Annexure A) and described in the application as "a visual understanding of the physical confrontation that occurred on that night". The references to "injuries 11 & 12" presumably refer to paragraphs of the application, which are as follows: "11. A struggle ensued and the applicant hit the victim over the head with a bottle of bourbon in an attempt to force the victim to release his finger. The struggle continued for some time before the applicant was able to pull out his finger from the victim's mouth. 12. Medical evidence indicated that the victim died primarily of asphyxia, with other injuries contributing to her death."
3. As to item (5), it is not apparent from Professor Ellis' report what parts of the trial transcript of the applicant's evidence were provided to him.
4. Item (6) did not form part of the application. However, the application included transcribed excerpts of an interview that was broadcast on ABC News Radio in 2013, concerning the death in Sydney of Roberto Laudisio Curti, following him being constrained by police. I assume, for the purposes of the application, that item (6) was the same transcript. Its relevance is that the applicant stated that the interview alerted him for the first time to "positional asphyxia" as a means by which a person may die from asphyxia.
5. Professor Ellis was asked five questions, as follows: "1. Whether it is possible that positional asphyxia caused the death of [the applicant's] wife? 2. If the answer to question 2 (sic) is yes, how significant was positional asphyxia as a causative factor in the death of [the applicant's] wife? 3. Is it possible that the pressure placed on [the applicant's] wife's neck, particularly with reference to the sketch [the applicant] has caused to have drawn, caused a conjunctivae petechia haemorrhage? 4. If the answer to question 3 is yes, how likely was the pressure placed on [the applicant's wife's] neck to have caused a conjunctivae petechia haemorrhage? 5. If the answer to question 3 is yes, how significant was the conjunctivae petechia haemorrhage as a causative factor in the death of [the applicant's] wife?"
6. Professor Ellis identified certain limitations to his opinions. First, he noted that the autopsy report of Dr Little was "comprehensive" but contained "no photographic recording" to visualise her findings. Second, he noted that the sketch did not provide a clear, detailed, or objective representation of the "relative positions of the two bodies" or the strength with which the applicant gripped Ms Youseff. This was identified as a "significant disadvantage" given the importance of asphyxia in the case. Third, Professor Ellis noted that it would be inappropriate for him to comment on the evidence given by Associate Professor Hilton at trial, as Professor Ellis was "completely unaware of the information available to him at that time".
7. In his report, Professor Ellis provided some background on the meaning of the term "asphyxia" and the subcategories of this concept, which are classified according to the "underlying processes that are being hindered in the asphyxial event". Professor Ellis defined asphyxia as: "… the term used to cover all aspects of interference with the general process of respiration by which the body acquires oxygen in a form that it can be utilised to maintain normal metabolic processes."
8. The relevant subcategory of asphyxia identified by Professor Ellis was "mechanical asphyxia", in which oxygen is "hindered from travelling from the outside air into the lungs". Forms of mechanical asphyxia include that which is "positional in nature, due to strangulation, or… following a traumatic or crush asphyxial event".
9. Professor Ellis explained the concept of "positional asphyxia" as follows: "The term 'positional asphyxia' usually refers to that situation where asphyxia is either caused or worsened by the position of the body of the victim. In the context of the anatomical abnormalities described above … if the body of the victim is situated in such a way that the airway is compromised, this can be referred to as positional asphyxia. This can be seen in traumatic incidents in which the body of the victim ends up in such a way that the neck s bent thereby compromising adequate flow of air through the airway, larynx and trachea. Whether such positional asphyxia causes death depends on how long it lasts. Clearly it must be maintained for a sufficient period for the oxygen level of the body to be reduced to such a level that it affects core activities (such as cardiac or cerebra function). It is impossible to be specific as to how long this period would be but it would be longer than a few seconds. Stopping the effective supply of oxygen can cause loss of consciousness quite quickly (although this, too, is very variable and is dependent on the circumstances of the incident) but it is not inevitable that death will follow especially if the restriction is then immediately relieved."
10. With respect to the applicant's specific questions regarding positional asphyxia, Professor Ellis stated: "Considering the specific questions in your letter of instructions, it would be in my opinion, based on the simple diagram provided (and bearing in mind the limitations of the interpretation of that diagram mentioned above) that positional asphyxia could have been a component in the death of [the applicant's] wife. Considering the second question, namely the significance of this hypothesised positional asphyxia, there are several other factors that may have contributed to the asphyxia effect and realistically it is impossible for me to ascribe differing percentages of responsibility of these different effects. For example, I have mentioned the possible effect of potential traumatic/crush asphyxia (although without detailed knowledge of the exact relative positions of the two individuals and the weight of person 1 it is unclear how much of a factor this was, if at all). Additionally, there was evidence that person 1 had a finger within the mouth of person 2. It is unclear how far that finger penetrated and whether it did indeed itself contribute to limiting the passage of air through the airway of person 2. As indicated above, it is unclear what the rest of the left hand of person 1 is doing as it is possible that it obstructed the rest of the mouth of person 2 and possibly even the nose. So it is not possible to be specific about the significance of positional asphyxia as a causative factor in the death other than to say that it may have contributed." (emphases in original)
11. Professor Ellis opined that the presence of multiple "conjunctivae petechia haemorrhage[s]" which were found in Ms Youseff's eyes was consistent with "some form of mechanical asphyxia".
12. In response to the questions posed by the applicant, Professor Ellis stated: "Therefore, to answer your specific questions, it is possible that pressure placed on [the applicant's] wife's neck, especially with reference to the sketch prepared, can be associated with conjunctival haemorrhages … It is not possible for me to enumerate how likely it is that this so-called pressure on [the applicant's] wife's neck has caused the conjunctival haemorrhages as it is unclear from the diagram how severe the pressure was and whether the other factors I mentioned above … played any part in the development of the asphyxia. Essentially it is not possible for me to place any weight on the various differing possible factors. … Considering your last question, I would say that the conjunctival haemorrhages are not causative factors in death but are merely physical signs that may help understand the mechanism by which death has occurred. So it is the asphyxia that causes the death, not the conjunctival haemorrhage."

The newspaper article

1. The applicant's application also included a photocopy of what appears to be a newspaper article, undated and unidentified, titled "Dead inmate held by untrained guards". It describes an ongoing coronial inquest into the death of David Dungay at Long Bay prison hospital, in which counsel assisting the coroner made submissions that prison guards who restrained the deceased had not been trained in "positional asphyxia risk".

The applicant's submissions

1. In essence, the applicant submitted that Professor Ellis' report constitutes fresh evidence which: "… provides a compelling reason to accept that the death of Nevine Youssef was not by an intentional act of the applicant but rather the result of 'Positional Asphyxia'."
2. The applicant submitted that the report demonstrates that Professor Ellis "could not rule out positional asphyxia" as a cause of death.
3. The applicant extracted two passages from his trial evidence as to how he and the deceased were positioned during the struggle which, he submitted, were consistent with the sketch as to their respective positions. He continued: "24. The sketch … illustrates the positions in which the applicant and the victim ended up after they had fallen off the bed and onto the floor. The struggle continued for some time as the applicant was still trying to release his finger from the victim's mouth. 25. Unaware of this at the time, the applicant is now convinced that it was during this period that the victim was asphyxiated (as a result of positional asphyxia), when you consider the amount of pressure that was placed on her back with her legs folded underneath her, in addition to the pressure placed on her neck. 26. After some time the applicant finally released his finger from the victim's mouth and was able to sit up. This was followed by the victim rolling onto her side and then onto her back. This was her final resting position as seen in the police photographs." (emphasis in original)
4. The applicant submitted that the evidence given by Dr Little at trial is consistent with the applicant's own evidence at trial, such that unexplained injuries on the back of the victim's neck identified by Dr Little could have been caused by his belt buckle or jeans when the applicant and the victim were positioned on the floor.
5. The applicant submitted that the report of Professor Ellis demonstrated error which causes "unease or disquiet" in both the remarks on sentence and the 2008 appeal judgment.

Alleged errors in the remarks on sentence

1. The applicant submitted that Grove J erred in that, "in spite of the lack of evidence" as to the mechanics of how the deceased was asphyxiated, his Honour made findings as to the applicant's intent. The applicant placed emphasis on his Honour's statement, at [25] of the remarks on sentence, that the means of asphyxiation were unknown: "I am conscious of the absence of precise evidence demonstrating what the implement was and that the evidence does not establish that it was the pillow found in the room …"
2. The applicant submitted that Grove J "further erred" in his Honour's findings at [26] of the remarks on sentence, extracted above at [8], regarding the applicant's "subsequent conduct" following the offence. The applicant submitted that: "There is no evidence that the applicant had any knowledge of the area at the Mercure Hotel that would contain security cameras and then deliberately tried to avoid being filmed. This may suggest that the applicant, on his previous visits to the hotel had observed areas of the hotel for security cameras which would only be the behaviour of a person intending on committing a future crime. That was not the case in this trial …"
3. To substantiate this submission, the applicant reiterated his evidence at trial that he had "attempted to use the elevator to go down to reception and find help" for Ms Youseff, but that the elevator was not working.

Alleged errors in the 2008 appeal judgment

1. With respect to the 2008 appeal judgment, the applicant submitted that McClellan CJ at CL "noted the lack of evidence as to intent", at [11] of that decision, and that the absence of the "fresh evidence" concerning positional asphyxia at trial: "… demonstrated a challenging task to defend the applicant against 'intent' and therefore deprived the applicant of a fair trial."
2. To substantiate this proposition, the applicant referred to the comment of McClellan CJ at CL at [12] that: "At the close of the Crown case trial counsel for [the applicant] briefly opened. Nothing he said at that point would have assisted the jurors to understand the issue or issues which they would be required to resolve."

The respondent's submissions

1. The respondent submitted that the respective positions of the applicant and Ms Youseff in the sketch were inconsistent with the evidence led at trial and, in any event, implausible.
2. The respondent conceded that the sketch was "not necessarily inconsistent" with the applicant's two extracted passages from the transcript of his trial evidence as to his and Ms Youseff's relative positions on the floor during the altercation. However, the applicant has not explained how he shifted from being behind Ms Youssef while they were on the bed to being in front of her, as depicted in the sketch, without having removed his finger from her mouth. The respondent submitted that the minor injuries to the applicant's finger support this implausibility because movement of the kind inferred by the applicant would result in "considerable" injuries to his finger.
3. The respondent also submitted that the applicant's account is implausible, as he could not have caused the head injuries suffered by Ms Youseff from the position depicted in the sketch. Specifically, the respondent submitted that it is implausible for the applicant to have inflicted these injuries while his finger remained in Ms Youseff's mouth and while he was maintaining sufficient pressure on her back and neck area to cause positional asphyxia to occur.
4. Further, the respondent submitted that, even if positional asphyxia was a causative contribution to Ms Youseff's death, the totality of the evidence left no question or doubt as to the applicant's guilt.
5. In support of this submission, the respondent referred to the fractured nature of the relationship between the applicant and Ms Youseff, in which she had obtained an apprehended violence order applicable to the applicant, and the failure of the applicant to seek medical or other assistance for her following the altercation. The respondent additionally emphasised that the Crown case as put to the jury at trial "included an element of mechanical asphyxia" in the form of the applicant applying pressure to Ms Youseff's "rib area". The respondent submitted that this was significant because, in reaching a guilty verdict, the jury "evidently did not consider that the potential involvement of such a process gave rise to a doubt as to the applicant's intention".

The applicant's reply

1. The applicant's submissions in reply sought to clarify why Professor Ellis was provided with limited material upon which to base his report and to respond to the respondent's submissions regarding any doubt or question as to guilt.
2. First, in response to the respondent's submission that the material provided to Professor Ellis was limited, the applicant submitted that the material included the "fundamental evidence of the case". The applicant submitted that he was bound by "financial limitations" in preparing the application. He submitted that these limitations may be alleviated, and a "more comprehensive report" prepared by Professor Ellis based on "all the material presented at trial", if the present application was successful, due to the potential availability of Legal Aid funding.
3. Second, the applicant responded to the respondent's submission that there is no doubt or question as to guilt in the instant case. In response to the respondent's submissions regarding the limitations of the report of Professor Ellis, the applicant submitted that, despite the qualifications which Professor Ellis expressed, the availability of such evidence would have been "critical" and that it is unnecessary for the report to prove that positional asphyxia produced a causative effect with respect to Ms Youseff's death. The applicant submitted that the report would be "critical", in the sense that such evidence would have provided an alternative explanation to the Crown case regarding asphyxiation and would have prevented the Crown from "introducing intent as the only possible scenario". If this evidence was available, the applicant submitted, then it is possible that the jury could have held a reasonable doubt as to his guilt.
4. The applicant submitted that the sketch was consistent with the injuries outlined in Dr Little's autopsy report, which was available at trial, in that it depicted a "physical altercation … that began on the bed and ended on the floor". In response to the respondent's submissions regarding the deficiencies of the sketch, the applicant submitted that it is only intended to represent the position of himself and Ms Youseff at the "end of the struggle", as it would be "impossible" for him to give evidence as to their exact movements. In submitting that the sketch was consistent with Dr Little's autopsy report, the applicant stated that it is "possible and reasonable" that the injuries to Ms Youseff's face were caused by their fall from the bed onto the floor. The applicant further referred to an excerpt from Dr Little's evidence at trial, in which she gave evidence that a "very forceful punch" would have been required to produce a fracture to the ribs of the kind inflicted upon Ms Youseff.

The report of Professor Ellis

1. Professor Ellis' report was appropriately premised upon material that was provided to him, and in any event was, of necessity, qualified. Professor Ellis noted, in the preamble to his report: "1. Before specifically addressing the issue at hand, it is appropriate that I firstly make reference to the material that you have provided to me. I acknowledge that there is a limit to the available material at this stage but it must be recognised that any opinion that I form and prepare is limited by the evidence available to me. At this stage, while Dr Little's autopsy report is comprehensive, I am hampered by the absence of any visualisation of her findings other than in her written word. In particular, I have no photographic recording to observe and therefore when she makes reference to various abnormalities such as bruises or lacerations or other marks I am confined to her interpretation and description of those abnormalities. It is therefore inevitable that it is very difficult for me to form alternative opinions as to causation of marks for which I only have a verbal description. 2. This restriction also applies to consideration of the mutual position of the individuals involved in this incident as I have been provided with a sketch and, while I understand the principle behind its preparation, I am hampered by the consideration that without any other objective recording of the relative positions of the two bodies (and this may in fact not be in existence anyway), there is very limited detailed information as to exactly where individual parts of each body were located. For example, the exact positioning of the left hand of person 1 (presumably [the applicant]) is unclear and is only indicated by the labelling 'Middle finger of P1 caught in the mouth of P2'. The diagram shows another digit of the left hand, possibly the thumb, located apparently on the surface of the head of person 2 (presumably the deceased). It is unclear from this simple diagram as to how tightly that thumb (or any other digits) is gripping the region of the mouth, lips or even nose. Given that asphyxia is a major factor in this case, this is a significant disadvantage. 3. Given that I am not familiar with all the evidence presented at trial, it would be unwise and inappropriate for me to comment on any other general aspects of the case and therefore my opinion must be entirely restricted to consideration of the verbal description by Dr Little and the somewhat simplified diagrammatic representation of the mutual position of the two bodies that I understand has been prepared quite recently (and therefore subject to possibly misleading effects of the passage of time - especially as it endeavours to record some quite specific observations of a short lived dynamic event that occurred nearly 14 years ago). Additionally, reference is made in some of the Appeals Court judgements to evidence given by Associate Prof John Hilton and as I am completely unaware of the information available to him at that time, it is not appropriate I make any comment on his opinion."
2. Professor Ellis made the following observations about the possibility of positional asphyxia being indicated by the sketch: "8. It is potentially relevant in this case in respect of the diagram prepared on behalf of [the applicant] as the position in which person 2 is depicted is such that, especially with the increased weight of person 1 on the top of the trunk of person 2, it is possible that there would have been some limitation of respiration. This is potentially aggravated by the fact that person 2 appears to be kneeling with her legs underneath the torso and if person 1 is lying heavily on the body the compression of the body of person 1 may limit the expansion of the chest of person 2. It is possible, therefore, that an element of traumatic asphyxia may have contributed to death although it must be stressed that this opinion is based on the presentation of the diagram and this is a hand prepared diagram that, as I understand it, has been prepared nearly 14 years after the event. Therefore, its accuracy cannot presumably be guaranteed. 9. The term 'positional asphyxia' usually refers to that situation where asphyxia is either caused or worsened by the position of the body of the victim. … if the body of the victim is situated in such a way that the airway is compromised, this can be referred to as positional asphyxia. This can be seen in traumatic incidents in which the body of the victim ends up in such a way that the neck is bent thereby compromising adequate flow of air through the airway, larynx and trachea. Whether such positional asphyxia actually causes death depends on how long it lasts. Clearly it must be maintained for a sufficient period for the oxygen level of the body to be reduced to such a level that it affects core activities (such as cardiac or cerebral function). It is impossible to be specific as to how long this period would be but it would be longer than a few seconds. Stopping the effective supply of oxygen can cause loss of consciousness quite quickly (although this, too, is very variable and is dependent on the circumstances of the incident) but it is not inevitable that death will follow especially if the restriction is then immediately relieved."
3. Professor Ellis responded to the first two of the five questions that were posed to him, which concerned the likelihood that positional asphyxia caused Ms Youssef's death, as follows: "10. Considering the specific questions in your letter of instruction, it would be my opinion, based on the simple diagram provided (and bearing in mind the limitations of the interpretation of that diagram mentioned above) that positional asphyxia could have been a component in the death of [the applicant's] wife. 11. Considering the second question, namely the significance of this hypothesised positional asphyxia, there are several other factors that may have contributed to the asphyxial effect and realistically it is impossible for me to ascribe differing percentages of responsibility of these different effects. For example, I have mentioned the possible effect of potential traumatic/crush asphyxia (although without detailed knowledge of the exact relative positions of the two individuals and the weight of person 1 it is unclear how much of a factor this was, if at all). Additionally, there was evidence that person 1 had a finger within the mouth of person 2. It is unclear how far that finger penetrated and whether it did indeed itself contribute to limiting the passage of air through the airway of person 2. As indicated above, it is unclear what the rest of the left hand of person 1 is doing as it is possible that it obstructed the rest of the mouth of person 2 and possibly even the nose. So it is not possible to be specific about the significance of positional asphyxia as a causative factor in the death other than to say that it may have contributed." (emphases in original)
4. In response to the remaining three questions, which concerned conjunctivae petechia haemorrhages, which were haemorrhages that were observed by Dr Little in the lining of Ms Youseff's eyes during the autopsy, Professor Ellis discounted the relevance of that phenomenon in determining the mechanics of the asphyxia that was suffered by her. For the sake of completeness, I reproduce his response to those questions, as follows: "12. The next questions referred to the haemorrhage within the eyes. I should say that your letter makes reference to 'a conjunctivae petechia haemorrhage'. It is important to realise that this implies a single haemorrhage but Dr Little has clearly indicated in her report that there were multiple haemorrhages in both eyes. These have not been numbered or described but the presence of multiple haemorrhages in both eyes is significant. As Dr Little quite correctly commented in her evidence, conjunctival haemorrhages are not specific to asphyxia and can occur in other conditions including, rarely, sudden natural death. Essentially the entire circumstances of the case should be considered as contextual information in respect of understanding the implication of such haemorrhages. Therefore, in this case, sudden natural death would appear not to be an issue and the presence of significant conjunctival haemorrhages is consistent with some form of mechanical asphyxia as such haemorrhages are very common findings in mechanical asphyxia whether it be positional in nature, due to strangulation or even following a traumatic or crush asphyxial event. 13. Therefore, to answer your specific questions, it is possible that pressure placed on [the applicant's] wife's neck, especially with reference to the sketch prepared, can be associated with conjunctival haemorrhages. It should be noted that the pressure on the neck does not, of itself, cause the haemorrhages. It is the effect of congestion of the blood vessels within the head that results from pressure on the veins within the neck (thereby reducing blood flow out of the head) and that this congestion manifests itself by causing leakage of tiny blood vessels within the head and the most visible of these tiny blood vessels are those within the eyes (and sometimes in the skin around the eyes). 14. It is not possible for me to enumerate how likely it is that this so-called pressure on [the applicant's] wife's neck has caused the conjunctival haemorrhages as it is unclear from the diagram how severe the pressure was and whether the other factors I mentioned above (paragraphs 7 and 11) played any part in the development of the asphyxia. Essentially it is not possible for me to place any weight on the various differing possible factors. 15. Additionally, it must be acknowledged that at trial, other possibilities of the application of asphyxia were mentioned. I have no further information concerning these factors, whether proven or otherwise, and therefore it is not possible for me to say they were or were not relevant in this case. I can only comment on the information presented to me and acknowledge that if that information is incorrect or incomplete, that may materially affect and even negate any opinion that I may offer. 16. Considering your last question, I would say that the conjunctival haemorrhages are not causative factors in death but are merely physical signs that may help understand the mechanism by which death has occurred. So it is the asphyxia that causes the death, not the conjunctival haemorrhage." (emphases in original)

Consideration

1. The applicant contended that the expert opinion of Professor Ellis, as expressed in his report, raised a real possibility that Ms Youseff's death was due to positional asphyxia, consequent to the applicant placing pressure on her body that constricted her capacity to breathe. The applicant submitted that such pressure was applied by him unwittingly, as he attempted to remove his finger from her mouth, and therefore Professor Ellis' opinion raises a doubt as to the applicant's guilt for the offence of murder.
2. Professor Ellis' qualified opinion hinged upon the respective positions of the bodies of the applicant and Ms Youseff during their struggle, as evidenced by the sketch. Accordingly, it is appropriate to consider the extent to which the respective positions in the sketch are supported by the evidence that was adduced in the trial.
3. A photograph taken by police of Ms Youseff's body in situ in the hotel room depicts her lying stretched out on her back, parallel and immediately alongside the bed, with her head positioned approximately 500mm from the wall against which the bedhead was positioned.
4. An examination of the entirety of the applicant's evidence as to the respective positions of both him and Ms Youseff during the struggle, albeit with some repetition of extracted passages, is appropriate. The applicant's account in his examination in chief as to what occurred was to the effect that he initially grabbed Ms Youseff when she screamed. At that time, she was on the bed: "A. I naturally panicked, I panicked in particular with the AVO that was in place so I went back to her on the bed and I held her from behind, I held her with my hand over her mouth pleading for her to calm down. Q. Can you just describe what you did, you held her from behind did you say? A. Yes, she was on her knees on the bed, I put my arm, one of my arms around her waist and the other arm over her mouth pleading with her to calm down. I was frightened from her screams early in the morning, early hours of the morning. Q. What hand was it that you had over her mouth? A. My left hand. Q. Your left hand? A. Mm. Q. What happened after that? A. Suddenly she grabbed this middle finger and began biting at it furiously. Q. [Did] you feel anything when she had bitten your finger? A. Enormous pain, enormous pain. I began to struggle and my finger was between her teeth. Q. Could you get your finger out of her mouth? A. No, as we were struggling then we both fell off the floor and - sorry, off the bed and onto the floor. Q. Your finger was still in her [mouth]? A. It was. Q. What happened then? A. As we fell on the floor beside the bedside table we actually bumped the bedside table away from the wall and the bottle of bourbon that I purchased was sitting on the actual coffee table. As I panicked I guess without control just with her teeth grinding against my bone I actually grabbed that bottle and was striking her with it. Q. So do you know where you stuck her? A. It would have been on the head. Q. After you stuck her with the bottle was your finger released? A. No, my finger was still in her mouth. At that stage she - I was leaning forwards and she was leaning forwards, we were on our knees parallel to the bed and the bottle was no longer in my hand. I had assumed at the time that it had broken because I felt all wet, everything that was in the bottle was, I was covered in it. My finger was still in her mouth, my right arm was free, no longer with the bottle, and I just pulled my finger out after a while tearing the skin."
5. And later: "Q. After you felt the contents of the bottle - sorry, you felt the substance on you and your finger was still in Nevine's mouth? A. Yes, it was. Q. Was she still biting it? A. Yes, she was. Q. What happened after that? A. Once I released my finger I felt enormous relief, the pain was really excruciating at the time and within seconds I think of my finger coming out of her mouth with her on her knees, she was leaning forward that whole time with me leaning over her, I was actually leaning on top of her. I'm not sure how much pressure I was applying on top of her with my hand on her face and my finger in her mouth so that she was in a kneeling position, suddenly she just fell on her side and rolled on her back. Q. What did you do after that? A. Initially I didn't think anything but then when she was motionless I said: 'Nevine get up, Nevine get up'. I panicked, she was just not moving at all."
6. The applicant explained what he did immediately after this point: "Q. How did you feel at that stage? A. I never felt anything like it. I repeated and asked her to get up and she just remained motionless on her back and - excuse me - I remember trying to get up and not being able to feel my legs at all. It was like I was paralysed from the waist down. Again I asked her: 'Nevine get up, get up' but she was motionless, not moving at all. Q. What did you do next? A. I didn't know what to do, everything became a blur. I actually thought I was having a nightmare and I was in shock. I didn't know what to do and it was more surreal. I was trying to comprehend whether this was real or whether it was just a bad dream. Eventually I got up again. I'd come back towards her and asked her to get up, she remained motionless. I put my shoes on and raced out of the room and I headed towards the elevator hoping to go down and get some help. I wasn't thinking. Well, all I knew was I needed to get some help. The elevators were not working at the time, it was that time of the morning where I think the elevators shut off so I headed back towards the room and outside our room there is an exit, a stairwell, so I raced down that stairwell which led me to the car park and from there I found myself into the street opposite the Mercure Hotel, the car park that led to the street."
7. The applicant was extensively cross-examined as to his and Ms Youseff's respective positions while they were struggling on the floor. At no point in his evidence did he describe positions that could reasonably be interpreted as those portrayed in the sketch, although he did say that he could not recall their positions throughout the struggle; for example: "Q. She is on the floor, you say, face down? A. We both fell off the bed and there was still a struggle. I don't know how we ended up. We struggled."
8. The applicant described how at one point Ms Youseff was kneeling forward and he was on top of her. However, that description is strongly suggestive of their bodies both facing in the same direction and his body being on top and further forward than her body: "Q. Is it the case that you were in fact on top of her at some point? A. At the fall from the bed to the floor and throughout the struggle her body had turned so I wasn't actually facing her as opposed to - Q. Was there an occasion you were on top of her and she was facing looking up to you? A. No. Q. Never? A. No. Q. Was there an occasion [when] you were kneeling on her body? A. No. Q. When you were on top of her when you say she's on the floor was your hand over her mouth or around her mouth? A. My finger was at the time still in her mouth. Q. Were you going to say something? A. She was leaning forward and I was on top of her so my chest was on her back and my shoulder was immediately above the carpet and I was trying to pull my finger out of her mouth. Q. So it's not the case that you were pushing against her mouth with your hand? A. No, my whole body was on top of her. Q. But you were not pushing your hand against your mouth? A. No, I was trying to pull my finger free." And later: "Q. Do you say that at no stage were you on top of her body with her head facing you and looking at you? A. Looking at, correct."
9. The applicant's evidence was that Ms Youseff moved around while they were on the floor: "Q. So, basically she has rolled off the bed, correct - - A. No, we both did. We were both locked together, I would say. Q. Was her head towards the wall where the bed head was? A. Immediately after falling off the bed, we were struggling. She was facing the wardrobe at one stage, the bedside table at one stage. We were in a struggle. We were struggling from the moment we fell from the bed. Q. Is it the case that whatever position she was in, you were on her back? A. Not the entire time. Initially, yes. Q. Were you facing in the same direction she was facing? A. Yes."
10. The autopsy revealed five lacerations to Ms Youseff's scalp. The largest was star-shaped with four radiating branches, the longest being 63mm long. The applicant's evidence was that, with his right hand, he repeatedly struck her on the head with the bottle. Ms Youseff continued to bite the middle finger of his left hand until, "not long" after he last struck her on the head, she let go and rolled over on her side: "Q. Was she still, as far as you could see, breathing? A. I couldn't see her face at that time. It was not long before she fell on her side and on to her back and that's when I saw her- - Q. So, how did she get on her back? A. She was on her knees, forward. Her face was on the carpet and I slid finger out from her mouth. Shortly after that she rolled onto her side and onto her back and remained in that position. Q. In one action? A. From what I remember. From what I remember. Q. So, she is basically tilted to her left or right? A. To the bed."
11. As noted earlier, Dr John Hilton, an Associate Professor in pathology, was called by the defence to give evidence, which he did after having sat through the applicant's evidence. An aspect of his evidence cast doubt on the applicant's account of the struggle. Dr Hilton noted that blood was located on the weight-bearing part Ms Youseff's right foot. He was asked: "Q. What would that tend [to] indicate? A. Well it indicates the foot was in contact with some blood, possibly in a standing position but it doesn't have to be that way but certainly the foot had been in contact with blood."
12. In cross-examination, he was questioned further on this issue: "Q. Did you say that that would be consistent with the deceased having stepped in some blood? A. Again, the distribution of the blood would appear to be on the weight bearing area on that sole of the foot, and I think there is an almost irresistible inference that she slipped in a puddle of blood. Q. And in order for that to have happened, she must have been standing at a point where there was blood on the surface? A. Yes, (a) blood on the surface and, (b), her foot had been placed - whether she was standing or bent over, I can't say - but the foot would have been applied to a puddle of blood. Q. So, the blood must have existed before the pressure was applied by the foot? A. Yes. Q. Is there anything in the accused's evidence which explained how that came about? A. No."
13. In re-examination he was asked: "Q. Kneeling on one knee, and standing on the other foot, would that be consistent with getting blood on the area that you were talking about? A. Yes, certainly the weight taken on one knee, and that right foot being placed into the ground, yes, it would, or it could."
14. The evidence at trial included photographs of the laceration to the applicant's left middle finger. It was minor in nature. I conclude that the likely source of "a puddle of blood" on the floor was the lacerations to Ms Youseff's head. I note that Dr Hilton's deduction that Ms Youssef placed her right foot on the ground after she was hit on the head is inconsistent with the applicant's account at trial that, following the blows to her head, at which point she was on her knees, the applicant withdrew his finger and she rolled forward and onto her back.
15. The applicant submitted that the positions depicted in the sketch accord with his evidence at trial as to the positions of his and Ms Youseff's bodies during the struggle. However, a reading of the entirety of the transcript of the applicant's evidence at trial as to how he and she were positioned during the struggle does not assist his submission that they were positioned as depicted in the sketch at any point during their struggle.
16. I note that the applicant's evidence at trial was that there were movements during the struggle which he did not precisely recollect. His evidence was given approximately 15 months after the incident. For the sake of completeness, I find that it is not reasonably likely that he subsequently recalled the positions that appear in the sketch.
17. As noted, the applicant made complaints concerning the trial judge's findings in his remarks on sentence. Those complaints are findings that the applicant does not accept, but do not raise fresh matters of evidence or unavailable inferences that were found to the requisite standard of proof. In particular, in relation to his claim that the elevators had been turned off, I note that this proposition was not put to the hotel manager, who gave evidence at the trial.

Conclusion

1. A reading of the entirety of the transcript of the applicant's evidence at trial as to how he and Ms Youseff were positioned during the struggle does not assist the applicant's submission that they were positioned as depicted in the sketch at any point during their struggle.
2. I conclude that the respective positioning of the applicant and Ms Youseff in the sketch is contrary to the applicant's evidence in that respect at his trial and accordingly, in my view, the sketch should be disregarded. Since Dr Ellis' opinion depended upon the positioning in the sketch, his opinion is of no weight in my consideration of the application. There is no other aspect of the case that causes me to entertain a doubt as to the applicant's guilt of the crime of murder.
3. Accordingly, pursuant to ss 79(3)(a)(i) and (b) of the Act, I decline to further deal with the application.

Order

1. I make the following order: (1) The application of Ashraf Mencarious filed on 8 September 2021 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.

Annexure A (128037, png) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2022