Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Criminal law - Murder - Whether conviction unsafe and unsatisfactory - Whether sufficient foundation of fact for a reasonable jury to be satisfied that the relevant acts causing death were done with intent to cause really serious injury - Whether an inference of such intention may be drawn from all the circumstances.

BRENNAN CJ, TOOHEY, GAUDRON, GUMMOW AND KIRBY JJ. The appellant and his girlfriend, Ms Tracey McNamara, had been associating for about three years prior to her death. Their relationship was turbulent, especially when both of them were drinking. She lived with her parents but was accustomed to spend about 4 nights every week at the appellant's residence.

On the night she received her fatal injuries, 2 March 1992, she waited for the appellant to return home from work for a barbecue. He was out drinking and was late getting home. She had been drinking too. They quarrelled. The neighbours heard screaming and yelling. They heard thumps or bangs and other sounds of violence. The appellant's brother-in-law received a telephone call from the appellant asking him to come down to the appellant's place. The brother-in-law declined to come. The appellant then called his brother, who arrived with his mother. The police were summoned. When the appellant's brother and mother and the police arrived, Tracey McNamara was lying on the floor on her back. The appellant told them she was "faking it" and that "She is only doing it to get sympathy." The ambulance officers who arrived subsequently saw no obvious signs of external injury other than hair on the floor but they perceived that she was in a serious condition when she failed to respond to light and to painful stimuli. She was admitted to hospital in the early hours of 3 March 1992 and died on 4 March 1992.

In fact she had sustained injuries to various parts of her body and, in particular, to her head. Several clumps of hair had been pulled out, injuries from blunt impacts had been inflicted on virtually every part of her head, she had subdural and subarachnoid haemorrhages and her brain was oedematous. She was bruised on every part of her body. However, no bones were broken and, apart from some abrasions on her elbows, no skin was broken. Nevertheless, the intra-cranial pressure killed her. The pathologist who was called by the prosecution to describe the injuries he had found on post mortem examination agreed that the fatal intra-cranial injury could have been caused by only one of the blows that she had sustained but the injuries to the head external to the cranium would have required at least 2 or 3 blows of at least moderate force.

The live question for the jury and the question canvassed on appeal before the Court of Criminal Appeal of the Supreme Court of Victoria was whether the appellant had the intention to cause really serious injury to Tracey McNamara at the time when he inflicted the blow or blows which caused her death[1]. If that question be answered adversely to the appellant, he was guilty of murder. The jury found him guilty of murder and his conviction was upheld by the Court of Criminal Appeal. It was submitted to that Court that an adverse finding on the issue of intent was unsafe and unsatisfactory. By majority (Brooking and Teague JJ, Coldrey J dissenting), that submission was rejected. This appeal is brought by special leave against the order of that Court dismissing the appellant's appeal against his conviction for murder.

Brooking J, with the concurrence of Teague J, said:

" The real question for the jury was that of the intention with which the applicant did the acts which caused the fatal head injury. But that injury was not to be considered in isolation from the other injuries. The whole altercation was one episode. The fatal head injury, and its infliction, were not to be considered in isolation from the other injuries sustained by McNamara and indeed the whole course of events in the applicant's home that night, although the ultimate question for the jury was whether the Crown had proved beyond reasonable doubt that the acts causing death were accompanied by the necessary specific intent. The infliction of injuries other than the fatal injuries was to be taken into account by the jury in considering that ultimate question."

His Honour was right to hold that the whole of the circumstances can be looked at in order to determine whether "the acts causing death were accompanied by the necessary specific intent" (that is, an intent to cause really serious injury). But it would not be correct to assume that the act which caused death - there may have been only one such act - was accompanied by the intent which accompanied all the other acts that occurred in the course of the fighting. Although an intent to inflict really serious injury could reasonably be inferred from the totality of the injuries inflicted on Tracey McNamara, it does not follow that the appellant had that intent at the time when he did the particular act which resulted in her death.

An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide[2]. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.

In the present case, the appellant's version of the relevant events included an account of Tracey McNamara's breaking a ceramic pot containing an artificial plant set in plaster over the appellant's head, his pushing her away in order to get to the phone and the possibility of her falling and fatally striking her head on a low table or on the floor. Whatever intent might otherwise be attributed to him in relation to other acts of assault such as the pulling out of hair, so the argument ran, it was impossible to attribute to him in merely pushing Tracey McNamara away the intent thereby to cause her really serious injury. This hypothesis derives an air of verisimilitude from his statement to his brother and to the police that Tracey McNamara, who was then lying on the floor, was "faking it". On this hypothesis, the question would not be whether he had recanted some intent to cause really serious injury but whether such an intent must be attributed to him in the act of pushing Tracey McNamara away. If, adopting this hypothesis, he pushed her away merely to get to the phone and she fell and hit her head on the table or the floor and thereby sustained her intra-cranial injuries, the appellant would be guilty of manslaughter but not of murder.

The evidence of the appellant's neighbours and of one of their visitors clearly showed the course of the altercation between the appellant and the deceased. The altercation, which contained a lot of yelling and shouting, came to an end with a series of thumps or bangs, the number of which were put variously between 3 and 7. They were loud thumps or bangs and during the time when they occurred the appellant was heard to call out: "I'll fix you, you ..." followed by some unintelligible words. The deceased was heard to say at some stage during these thumps: "Stop, stop, you're hurting me." After the banging noise ceased, the appellant was heard to say: "Get off the fucking floor, you weak bitch" but there was no reply. When the ambulance removed Tracey McNamara from the floor they found a large clump of her hair which had been pulled out underneath her head. She had been lying on her back.

Although a chair had been pushed over, a pot plant had been knocked out of its stand, telephone books had dropped on the floor and perhaps a hole had been made in a plasterboard wall during the altercation, these events would not have produced the series of thumps or bangs which brought the altercation to a close. Similarly, if Tracey McNamara had been merely pushed away and fallen onto the carpeted floor, her fall would not have accounted for the series of thumps or bangs. Nor is it likely that the clump of hair which had been pulled from her head by the appellant would have simply come to rest under the head of her inert body. The question is whether evidence of this sequence of events provided a sufficient foundation of fact for a reasonable jury to be satisfied that the act or acts which caused the death of Tracey McNamara was or were done with the intent to cause her really serious injury[3]. That is to say, was that the only rational inference to draw from the proved circumstances[4], considered together with the appellant's assertion that he had merely pushed her away to get to the phone. The carpet on the floor of the room in which the altercation occurred, the sounds that were heard by the neighbours, the temporal correlation of those sounds with the voices of the appellant and the deceased, the injuries sustained by Tracey McNamara and the presence of the clump of hair under her head when she was lying unconscious on the floor were sufficient, in our view, to support an adverse verdict. The jury were entitled to reach the conclusion that the appellant had repeatedly banged the deceased's head against a flat surface - wall, table or floor - with the intent to do her really serious injury and that after she pleaded with him to stop she was lying on the floor, provoking his command to get up. In other words, the jury were entitled on the evidence to discard the hypothesis which the appellant advanced and which otherwise might have precluded the appellant's conviction for murder.

[1] The formula of "really serious injury" seems to have been substituted in Victoria for the traditional "grievous bodily harm", apparently as a modern synonym for the traditional term. It was accepted as the appropriate formula for the resolution of the present case. It is unnecessary to consider the accuracy of the formula in the present case.

[2] Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 at 217-218; Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 393, 401, 414, 421, 453.

[3] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495.

[4] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104.