(2) It was not put to the applicant in cross examination that he ever had that intention.

(3) The learned trial judge's directions to the jury on the use that could be made of certain lies said by the applicant presupposed that the lies could be used as evidence of the applicant having an intention to kill, but that inference is not reasonable.

(3A) The learned trial judge did not direct the jury that before they may use the evidence of the fact that the applicant hid the knife as evidence of consciousness of guilt, they will need to be satisfied beyond reasonable doubt that -

(a) that act sprang from a realisation or consciousness of being guilty of intending to cut or harm; and

(b) that act was not ambiguous or capable of innocent or alternative explanation,

and that they could not use that evidence against the applicant to inculpate him on the charges of wilful murder or murder.

(4) The burden of proof, of the allegation that the applicant had an intent to kill, was transferred away from the prosecution, and onto the defence, when the learned trial judge, in his charge to the jury -

(a) raised, when he should not have, the concept that a man is presumed to intend the probable result of his act; and

(b) did not (either adequately or at all) warn the jury against using that presumption.

(5) The learned trial judge's comments on the contents of the video record of interview were not fair and balanced: he failed to (either adequately or at all) put to the jury the response of the defence to the prosecutor's reliance on things said by the applicant in the video recorded interview with police.

(6) The learned trial judge wrongly allowed into evidence, over the objection of defence counsel, evidence of the fact that the body of the deceased had a number of bruises, none of the cause of which the Crown could explain, the evidence therefore had no probative value but was highly prejudicial against the applicant."

It was the Crown case that the applicant killed the deceased by cutting her throat with the intention of killing her. The evidence, relevantly, was as follows. At about 1 to 1.30pm on 16 September the applicant called out from his home to one Graham, who was walking past the house, to get the police and ambulance. At the time he was naked and his front was covered in blood. Ambulance officers Hoare and Holliday arrived at about 2pm, approximately 10 minutes after receiving the call. The applicant was standing on the verandah with a police officer. He was then wearing a pair of shorts. He called to Hoare and told her to hurry, telling her that the deceased had been cut from ear to ear and making a slashing motion across his throat. The deceased was lying on a doona on the floor in the lounge of the house, still alive, with a very large traumatic cut across the throat. She was covered in blood and there was blood on the ground, the walls and the furniture. There was also blood in the kitchen. When asked by ambulance officer Holliday what had happened, the applicant replied that he did not know, that he had just arrived home and found her "like this". Asked whether the woman spoke to her, Hoare replied that the deceased was making lots of gurgling noises and indicating "help me", trying to grab her in a manner that gave the indication of "help me". Holliday testified to attempting to speak with the deceased whilst in the ambulance on the way to the hospital. He said she was trying to speak but the nature of the wounds were such that just "a raspy little voice came out". He also described her as gasping and attempting to talk. It was the evidence of Dr Margolius, the forensic pathologist who conducted the post mortem on the deceased and to whose evidence I shall refer later in greater detail, that after sustaining the neck wound the deceased would probably be able to mouth words but not so that they would be recognisable as such but rather as gasping sounds and that, having regard to the cut through to the top of the throat, it would be impossible for her to make properly formed words. Dr Collins, a consultant forensic pathologist called by the defence was asked whether the deceased would have been able to speak and testified that he agreed basically with Dr Margolius. He said there was obviously disruption of the part of the airway that extends from the mouth down to the vocal cords so that proper sounds were not able to be formed but that the lips could still move and form quite normally the shape to make words. The air, however, was not coming through 100% efficiently, "so it's my view that this young lady could at least make some sounds and certainly form the correct shape with her tongue and her lips to produce the right sort of words which may well be understood as being words, but I don't believe she could speak an extended sentence, for example." Dr Collins' opinion was based on photographs of the deceased's injuries, a perusal of the post mortem report and the evidence given by Dr Margolius.

Detective Sergeant Hett arrived as the ambulance was leaving with the deceased. He asked the applicant what had happened and received the reply "I came home and found her bleeding, then I called the ambulance and the police". On being asked where was the knife, the applicant replied "I don't know about a knife. Ask the person who did it". A short time later the applicant was taken by Detective Sergeant Hett to the police station where he told the Detective Sergeant the location of the knife. This information was telephoned through to the officers searching the house and the knife and a sheath were then found under water in a drain at the back of the house.

Detective Sergeant Hett conducted a videotaped interview with the appellant. Following are relevant passages from that interview:

"A. Well, the -- to make the matter brief, after Miss Backshall and myself left court, we went and obtained a cask of wine which we took to a hill off Carnarvon Road where the tanks are, had a few drinks there, met some people there. Went to the next hill closer to Pincombe Street and we had some more drinks, and she left shortly before me. I don't know how long we were there. I guess we would have left about 12.00, 12.30. She and I arrived home about the same time. She'd already entered. She came abusive, upset, angry, violent, and for some time I contained myself and then I came just as upset and in the process - but I'm not really sure how - I injured her to the extent that leaves me now -- on your advice, that she subsequently died.

Q. Yeah. It wouldn't have mattered, mate. Can you -- can you tell me what you were arguing about? Can you remember?

A. No. It was something inconsequential. It was cigarettes or -- it was something inconsequential to start with and then she started on my family and started tell me my sisters were sluts and my mother was, no good and various other things and she always managed to bring out the worst in me and she did and -- I touched her once ... I touched her with a sharp knife and she's gone.

Q. Can you -- can you say how you caused the injuries, Murray?

A. She bit me on the arm once and -- she bit me on the arm once and I don't remember what happened after that. I think I struck out or --

Q. Were you -- were you standing in front of her or behind her?

A. No. She bit me up the arm here and -- she bit me on the arm here and I pulled her around like that. I don't know what happened after that. I'm sorry.

Q. In the kitchen. Okay. And was it just -- can you say -- can you say how you used the knife?

Q. All right. Can you say how many times you would have --

Q. Only once. And were did -- where did the knife come from?

A. I don't know. It was in the kitchen somewhere, I think.

Q. If it wasn't your knife. Do you remember what you did with that afterwards?

A. I've been asked - you've asked me before. All I remember was that I went outside and screamed out for people to call an ambulance, the police. I remember going out the back yard. I remember telling you where I would hide something if I went out in the back yard, but --

Q. All right. Can you -- can you say -- we spoke to someone earlier who said that when you ran out to get someone to call an ambulance or what have you, that you were naked, you had no clothes on.

A. When the police arrived before the ambulance, I ran out, um and -- I don't know. Till this day, I'll never know whether that minute, 2 minutes or 3 minutes is how much I actually caused her to ... (indistinct) ... I mean, I know I caused her to lose her life but I'd hate to cause her to lose her life from an act of omission.

A. And I never wanted her to -- to die or anything. I just wanted her to shut her whingeing mouth, the way she was carrying on. She was drunk and she was hitting me.

A. Um and instead of walking out the door I struck back.

Q. Mm. All right. When -- when I got there, you were dressed in a pair of shorts. Can you -- do you remember when you put them on?

A. No. After I ran out to call the ambulance, police, I ran out in the street and across the road to the -- to the person that was most likely to call the police --

A. So I hesitated there. In an Aboriginal neighbourhood in a fight where a woman gets bashed isn't considered serious. So I had to go to the white household. And he told me that he'd already responded to me coming out the first time.

Q. All right. Can you say where the injuries were that you caused?

Q. All right. Now, at the house, there was quite a big pool of blood in the kitchen.

Q. And then in the lounge there was some more blood. Now, what happened to -- you said that the incident happened in the kitchen. What did you do then? I mean, to --

Q. There was a fair bit of blood to get in the lounge.

A. There -- there must -- I know I moved Cindy from the kitchen to the lounge."

Dr Margolius testified to conducting a post mortem on 19 September 1996. She found the cause of death to be a penetrating wound to the neck due to a sharp force, being a type of cutting wound. That in that area of the neck force was only needed to cut through the skin, after which not much pressure or force was required. The wound was particularly high up in the neck and it was her conclusion that when the knife was drawn across the neck the deceased's head would have been "tilted back markedly". The wound started below the left ear on the left side of the neck and extended 14cm across the neck above the vocal cords, transecting the jugular vein and the strap muscles of the neck. It went through to the pharyngeal ball at the back of the throat and to the muscles at the back of the neck against the spinal column, cutting into those muscles. The wound commenced superficially, going in deep and coming out superficially. There was a second neck wound described by her as a linear incised wound, 4.5cm in length, superficial, cutting the skin and extending from the left side of the neck towards its front and joining the major wound already described. She could not say which wound was first inflicted but testified that the second wound indicated that the knife was out and created a second and different injury. She also noted skin tags at the edges of the neck injuries which could indicate another entry site of the knife into the wound or, probably, in the present case, movement in the neck due to the knife being pulled out in a sawing motion, or movement of the deceased in response whilst the knife was being drawn across the neck, or both. She testified to an abrasion below the deceased's right ear, in her opinion due to the hilt guard of the knife scraping the skin as the knife was drawn across and taken out of the neck. In her opinion, the nature of the wound suggested that it had been inflicted by a person standing behind or slightly to the right of the deceased. Fingernails on the deceased's left hand had been recently torn and there was a recent incised cut on her left index finger, these injuries, in her experience, indicating a struggle or defence. She testified further to bruises on various parts of the deceased's body and a recent laceration on the inside of the lower lip involving a tearing of the gum, with bleeding around the front of the mouth. The force involved to cause the lip and mouth injury was little more than a tap. A number of the bruises, including two on the face, two above the right breast, one on the left breast and some on the right leg were recent and would have required mild to moderate force. There were also three recent bruises on the back of the head which, in her opinion, resulted from a blunt impact. She had not tested all bruises found on the body to determine whether they were recent. In cross-examination she agreed that, at its deepest, the wound was no more than 1.5cm. It was put to her that the force of a woman twisting and struggling against a knife which is "firmly held" against her neck could have caused the neck injury. To this she replied "Part of it yes. We have got a cut from one ear to the other so she would have had to have twisted 180 degrees."

Relevantly the applicant's evidence-in-chief as to the events leading to the death of the deceased was as follows. The deceased had a problem with alcohol, more so when used with methadone, which both he and she used, in that she would become violent in language and behaviour and would push, hit and punch. He told of incidents of violent attacks by her on him. He described the occasions of violence as "normally a flash in the pan, 10 minute thing", which he would generally ignore. On 16 September they had both been before the court on charges arising out of a domestic argument. After court they indulged in drinking alcohol with others, in the course of which the deceased became upset and, as he and she walked home, more upset. Shortly after arriving home and after he had taken off his clothes, she became abusive when he started looking for her bag when she refused him a cigarette. On being told to "give it up", she got really angry, pushed him and shouted in his face, her anger increasing as he pushed her away, which he did a number of times. They were then in the kitchen. She turned her back as she stood near the kitchen bench. She then "came back" with the knife. As she pulled it out of its scabbard he told her "You don't pull a knife on somebody unless you intend to use it", to which she replied "I do" and charged towards him. He said he was scared, stepped to one side and grabbed the knife from her with his right hand, holding it in the air so she could not get it. She was jumping for the knife, kicking, grabbing, punching and yelling at him. He was of the view she was going to grab it back and "slice" him up. He grabbed hold of her with his left arm to hold and stop her. The transcript reveals his evidence then to be as follows:

"Can you indicate to the jury how you grabbed her with your other arm? --- I just grabbed hold of her hand like this.

And what happened? --- She (indistinct) latched her teeth onto my arm (indistinct) arm ---

So when she bit you on the arm and it hurt like hell, what did you do? --- Well, I couldn't pull away (indistinct) and I grabbed down with the other arm to hold her and ---

So while you pull that - the right-hand arm down, what's she doing? --- She's still got her teeth stuck in my arm.

Right? --- So as I'm pulling back up now to get - broken free, she's hanging on with her teeth.

So what happens to your right hand? --- My right hand has come down to about shoulder height and really the next thing I know is she has buckled at the knees.

Righto. So when you brought your right-hand down, did you connect with any part of her body? Did your hands touch any part of her body? --- Must have. One would have ended up about in the middle of her neck here ---

Right. Were you trying to direct your right hand in any particular spot? --- No, not at all.

And when you brought your right hand down what ultimately happened to your left arm, the one that had been bitten? --- I think that has ended up - I have grabbed hold of her again or - or once she has let go I pulled it away.

So which way was she facing when you brought your right hand down? --- She has turned around when I have brought my left hand away, so she's facing away from me.

What about her body? Is that doing anything? --- She's wriggling, trying to lunge forward, twisting.

How long after you brought the right hand down did she stop struggling? --- Straightaway.

And what happened? --- She just virtually buckled at the knees. I have ended up going down on the floor with her. It wasn't until we were both on the floor that I realised that she had been cut.

So while you were both going down on the floor, what did you think was going on? --- Well, she was foxing.

Foxing? --- Trying to get away and get the knife (indistinct).

When you brought that right hand down and held down towards her, was the knife ever in your thoughts? --- Not at all."

The applicant went on to testify that, having checked to see how badly the deceased was cut, he ran to the front and called for the police and an ambulance and then went back into the house to find the deceased had moved and was standing in the doorway between the kitchen and the lounge. She said to him "Don't leave me again." He said he half carried, half dragged her across "here", presumably the loungeroom, propped her up on some cushions and sat with her, holding her neck so her airway was clear. He was then asked when he had hidden the knife. He replied that when he got back from calling the police and ambulance he thought the police might conclude he had hurt the deceased on purpose, so he "stashed the knife" in panic and that when he got back to the deceased "she was telling me to stay with her, not to leave her alone. What she actually said was "stay with me". He covered her with a doona to keep her warm. He acknowledged the accuracy of the evidence of the ambulance officers and agreed that he had told the police before the commencement of the video recorded interview "something about finding the knife in a hole in the backyard". In answering questions about photographs taken of him, he said "I had a scratch mark under my arm". He made no mention of any marks of the deceased's teeth on his left arm. He said that when the video was turned on he was confused and feeling guilty, knew he had had "a part in it", was concerned about the deceased's son coming home from school, all of which, he said, had an effect on his answers in that "there's questions to which I know the answer or would have known the answer if I had paused to think. I have answered ... incorrectly or incompletely." [It should be noted that the video records that the applicant was told he did not have to say anything if he did not want to and that anything he did say would be recorded and might be given in evidence. Asked if he understood that he replied, "In our previous conversation I gave consent for a video interview". Then asked if he was "happy to continue now" he replied "I believe so, yeah".] There followed the following questions and answers in evidence-in-chief, the reference to "transcript" being to the transcript of the video recorded interview:

"What do you say about this answer that you gave which appears at page 6 of the transcript:

After I ran out to call the ambulance, police, I ran out in the street across the road to the, to the person that was most likely to call the police. So I hesitated there. In an Aboriginal neighbourhood, in a fight where a woman gets bashed isn't considered serious so I had to go to the white household and he told me that he had already responded to me coming out the first time.

What do you say about those words that you said on the video? --- That's - I've gotten that day's incident confused with another incident that had happened some weeks before where Cindy had been bashed on the head by a fellow who lived across the road and I have gone to the white household that I have described and the bloke has told me he has already called an ambulance. The circumstances were fairly similar. Cindy was hurt, I was upset and rung an ambulance, and I have confused that time when I have gone looking for an ambulance with the time that I have been shouting out the front for the police and an ambulance that day.

In the video the expression 'struck out' is used. What do you mean by that? --- That I have stayed and argued, pushed her away or she has rushed at me when more usually I would have walked away (indistinct).

Now, in the video you said that, 'She started on my family and started' - I will start again:

And then she started on my family and started to tell me my sisters were sluts and my mother was no good and various other things.

What were the actual words that Cindy used? --- Cunt and various other things.

Why didn't you say that in the video when the police were talking to you? --- I didn't want to put Cindy in a bad light. I can't recall the exact other things that she said but they were offensive.

We have heard about Murray Holliday, the ambulance officer, who said that you said - asked (sic) the guy who did this what happened. Why did you use those words when he came? --- I was just throwing him off. I wanted his attention focused on Cindy and helping Cindy.

Perhaps Mr Axford could be shown an exhibit, a photo. I think it's 4 - sorry, 5D and 5B.

Perhaps you could just show you (sic) those photos so that I can see them and I will make sure we have got the right ones. Yes. And the other one. Right. The one in your right hand, which one is that, 5 ---?---5D.

5D. Can you hold that up to the jury? What would that mark - what you can say about that mark in your right armpit? --- It looks to be a scratch mark from a fingernail. I didn't know what it was at the time and I really just concluded that that's what it was because of the shape and where it is.

Okay. You can put that down. The other photo is 5 ---?--- 5B.

What can we see in that photo? --- On the inside of the wrist there is bloody marks (indistinct) Cindy's fingernails when she was trying to grab hold of the knife.

You can put that photo down now. We saw on the video, or we heard on the video reference to swelling in your hand. What do you say about that? --- I had a sore wrist anyway that day. I had had it for a time. I had fallen over sometime and hurt my wrist. The very outside of my hand ---

Show - the jury can't see there when you're talking to ---?--- The outside of my hand, this knuckle here I have hurt when I have tried to get out the back door and the back door has been locked, it has been key locked. It's just a screen door, and in my frustration I have punched that hard once and that has cut into the side of my hand (indistinct)."

In cross-examination the applicant was asked if he had any injuries prior to the incident with the deceased and replied "probably, yeah" and referred to "the hand injury" and a bruise on his right arm. He said that on prior occasions he had hit the deceased in response to her hitting him, slapping her across the side of the head and pushing her head up against the wall, but that he had never punched her and was not in the habit of slapping her. He was familiar with the knife, had sharpened it and knew it to be razor sharp. He had recognised it when the deceased took it out of its sheath and had later put both knife and sheath in the drain hole. The transcript reveals the following cross-examination:

"So when was the last time you had actually seen the knife, the Katana knife? --- We had had a fellow come around to our home who Cindy had shown it to previously that wanted to look at it. He wanted to buy it or asked us to give it to him - probably a few weeks before.

Was there a conversation about the use to which that knife could be put? --- There was a conversation about how sharp it was. He said it was sharp enough to shave with and I have said, 'If you tried that, you would end up cutting your throat.'

So you were certainly aware it was a very sharp knife? --- Very sharp knife.

In December 96 were you aware of the danger of cutting at someone's throat in that area? --- Yeah.

And you understood the potential for death to follow if someone's throat is cut in that manner? --- It's - it's (indistinct) dangerous place (indistinct) any sharp instrument.

At that time when you were holding the knife in the air and Cindy is jumping at you and you are pushing her away ---?--- Yeah.

--- were you angry with her then? --- More frustrated than angry.

Were you talking to her or saying anything to her? --- I don't recall what I would have been saying but I would have been saying things along the lines of, 'Can you give it up', 'Go easy' (indistinct).

Was she responding at all? --- Not to those words, no. She was responding with slapping, kicking, swearing.

Okay. When did she bite your arm? --- After I had taken the knife from her and she has been trying to jump to get at the knife, I have grabbed hold of her around the head and she has turned around and latched onto my forearm there.

You are indicating the top of your arm? --- Yeah, this part here.

So she was biting on your arm but not enough to break the skin? --- Enough so that I couldn't shake my arm loose but not enough to break the skin.

Okay. So she was doing that - sorry; you had your left arm around her? --- Yep.

When did you - what did you do with your right arm? --- Because she's hanging on to this arm I have brought it down to hold her and restrain her. My right hand has gone from here down to here ---.

Right? --- - - - and my thumb has ended up around the middle of her neck.

When you had your left arm around her, was her head in the crux of your elbow? --- No, her head was ---

Straight on? --- --- next to the front of my forearm.

Then you brought your right arm down? --- Yeah. My right has come down, I have pulled my arm away from her teeth and mouth, so it's ended up around about my shoulder height which is level with her neck.

When you brought your right arm down, wouldn't it have ended up on top of her other arm? --- No, it was on the other side. This arm is here ---

Yes. You bring your right arm down. Why didn't it end up on top of your hand? --- Because her mouth is here and her neck is there ---

So you brought your right arm under your left arm? --- Yeah.

You brought your right arm under your bent left arm? --- Yeah. I haven't had a - that's where it had ended up.

What were you trying to do? --- Hold her, restrain her. I was trying to restrain her with my left arm and she was biting it. I wanted to remove that from her teeth and hold her and - with her still restrained.

Were you trying to bring your right arm around her throat? --- No.

Where were you trying to bring your right arm to in order to restrain her? --- Just to her body generally.

So why didn't you bring your right arm down around her body? --- I don't know why I didn't. I didn't.

Instead you brought it - you brought your right arm down under your left arm so that the point of the knife touched her neck. Is that right? --- I pulled my right arm, pulled my right arm in and it has ended up in the area of her neck.

When you say you bring - it ended up in the area of her neck, if you brought your right arm down in the manner in which you have described, wouldn't your right hand end up against her throat and the knife would be pointing away from the neck? --- I don't know. I don't think so.

So you had your hands clenched. I take it the knife was protruding out of your hand? --- Yeah, the blade's pointing up.

You were aware you had the knife in your hand? --- Initially when I had taken it off Cindy and she had been jumping for it and ---

Right. So you were aware you had the knife in the hand. When you bring your right arm down and bring it under her left arm you put ---?--- My left arm is there.

Yes, under your left arm. You are trying to put your right arm around her neck. Is that what you are trying to do? --- I'm just trying to stop her from biting me and stop her from being in a position to carry on, just to calm her down.

And in doing that are you trying to somehow put your right arm around her body? --- Yeah, I'm trying to hold her or stop her from biting me and generally restrain her.

I understand that. What I am saying is, in doing that you bring your right arm down across her body or around her neck, the knife would be pointing away from the body. How does the knife blade end up against her throat? --- The knife blade has ended up against her - I don't know. I didn't know that she had been cut until she collapsed.

You said you brought your right hand down and when you brought your right hand down she just stopped struggling? --- almost straightaway, yeah.

You brought your right hand down, she stopped struggling? --- Yeah.

Had you made any cutting motion across her throat? --- No.

Had she - as described by Dr Margolius, had she turned 180 degrees in your arms? --- No. She was wriggling and squirming. I couldn't hold her with one arm; I needed two.

Right? --- And I hadn't - I didn't have her restrained.

But you said she stopped struggling, stopped struggling right away. You brought your arm down, she stopped struggling right away. Is that correct? --- She stopped struggling as best as I could tell almost straightaway, yeah.

And did she turn 180 degrees? - She has turned 180 degrees half a dozen times in those few minutes. I don't know ---

But after you brought your arm down did she do that? --- She must have.

Now, when you brought your arm down with the knife in it and put it to that area, the side of Cindy's throat, was she still latched on to your arm with her teeth? --- She hadn't let go with her teeth when I brought my arm down. I don't recall exactly when she did let go."

The applicant went on to say that, when, after calling for the police and ambulance, he came back inside the house after the injury, "she was talking to me along the lines of 'I'm sorry. I love you. Stay here with me. Don't leave me here alone.' ", that her voice was raspy and difficult to understand but he knew what she was trying to say and could understand what she was saying. Asked why he had left the deceased whilst he hid the knife he replied:

"It was a panic reaction when I - because I had already called the police. I knew the police were going to attend either with the ambulance or shortly afterwards and I knew that - or thought that having a knife sitting there in plain view would be a distraction to Cindy getting proper help and certainly make it difficult for me to go to the hospital with her. It was a panic ---"

The evidence of Dr Collins did not vary significantly from that of Dr Margolius, although there were peripheral issues. Relied on in this appeal is Dr Collins' evidence that the neck wounds reveal only that there was relative movement between neck and blade and not which moved against which and that "in either situation and looking at either extreme a knife drawn over a neck with some force will produce a wound and, on the opposite end of the spectrum, the neck moving over a relatively firmly held knife will produce exactly the same wound". Shown a photograph of the neck injury he said "Well, as Dr Margolius has said, it is difficult to be entirely exact about the amount of force required ... but if, in this particular case, the knife is relatively sharp then, in my view, it would take only a moderate degree of force to produce that injury. ... It doesn't require a massive forcing slashing type of activity to produce an extensive wound to the neck".

In cross-examination there were the following questions and answers:

"TAVENER, MR: At least occasions where the knife has come out and gone back in again, but that could either be the knife being pushed in or the neck coming back towards the knife after it had been withdrawn? --- Yes, that's so, but it doesn't - agreeing to that doesn't necessarily mean that the knife was entirely taken away from the neck and reapplied. It could all be in the same complicated manoeuvre of the neck and knife being together in a struggling situation. So what I don't want you to go away with is that there are two separate thrusts or distinct and intentional applications of the knife to the neck or the neck to the knife.

In order to cut her throat from one side to another to the extent that you have described and Dr Margolius has described, would that require the movement of the knife from one side of the neck to the other? --- That would be one way.

No; the other way, I think you have already suggested, is the neck would be turned? --- The neck could move on the knife, yes, or - on a relevantly immobile knife, or there could be a combination of movement of the knife and movement of the neck.

In your experience, if someone is having their throat cut, do they move? --- My experience of human beings as to what they do when they have their throat cut would be somewhat anecdotal. That of animals is practical experience, but I would imagine that there could well be movement of the neck, depending on whether the individual was entirely drugged or rendered unconscious or whatever or rendered immobile by somebody's physical presence, but I would have thought that if the neck were being cut, it would be not unreasonable to suggest some movement."

It was the applicant's case that although he inflicted the neck wounds they were unintentionally inflicted. There were no witnesses as to what in fact occurred. Although not relied upon by the defence, the learned trial Judge carefully and properly instructed the jury on accident, properly distinguishing an act done by accident from one done unintentionally, and properly directing as to the elements of each offence of homicide and on the concept of intent. The jury's verdict makes clear that they rejected not only that the injury occurred by accident but also that it was inflicted unintentionally and the truth of the applicant's evidence as to how the deceased's throat came to be cut. I turn now to the grounds of appeal.

Ground (1) does no more than assert as a ground the conclusion the applicant asks of this Court. In the course of his submissions, in discussion with the Court, the applicant conceded that it was open to the jury to find:

(a) that the applicant formed the intention to touch the deceased with the knife;

(c) that on the basis of the admitted lies the applicant had a consciousness of guilt related to the use of the knife;

(d) that the applicant had the intention to cut the throat of the deceased with the knife with the intention of harming her and that he deliberately cut her.

Counsel for the applicant maintained, however, that as no great force was required to inflict the wound which caused death, which was only 1.5cm deep at the deepest point and could easily be inflicted, the evidence was not such that an intention to kill or to do grievous bodily harm could be inferred.

It was clearly open to the jury to reject the applicant's testimony as to how the injury came to be inflicted and to disbelieve his claim that he did not intend to kill the deceased. Having so concluded, the question was, could it infer that intention from the evidence it accepted? In my view that was but a short step. That the accused's testimony as to how the death was caused was rejected was a factor that made the drawing of the inference easier. He was the only person with direct knowledge of what in fact had occurred. His evidence revealed an admission of a struggle between him and the deceased in which he had possession of the knife which, to his knowledge, was dangerously sharp and that he put it to her neck and caused the fatal injury. In my opinion, it being conceded that it was open to the jury to conclude that the applicant intentionally cut her throat with the intention of doing her harm, then, having regard to the nature and location of the wound, that there were two penetrations, the evidence that the deceased's head had to be markedly tilted back for the wound to be inflicted and as to the relative positions of the applicant and the deceased for such a wound to be inflicted, it was open to the jury, as a matter of common sense and logic, to be satisfied beyond reasonable doubt of the intention to kill. It was open to the jury to conclude that the applicant was aware that very little force was required to cut the throat. He had given an unacceptable explanation as to how and why the cutting of the throat had occurred. He had made statements in the video recorded interview open to the construction that he had deliberately cut her throat. The jury was then entitled to consider whether a person with that knowledge and in that situation would cut the throat without an intention to kill. The fact that no great force was required and the wound was only 1.5cm deep at the deepest point is of little relevance, having regard to the damage that cutting of the throat could inflict. To help it in answering that question the jury had the statements in the video interview relied on as admissions, the admitted lies told by the applicant out of court, the lack of any suggestion by him at any interview and until trial that the deceased had attacked him with the knife, or that she in fact had had the knife in her possession and, that he had taken it from her, or that the injury was caused as she struggled with him to get it back and his evidence as to knowledge of the sharpness of the knife and the danger of putting it to someone's throat. The evidence of the wound was consistent with the knife being drawn across the throat. It also had the fact, which could be seen as uncaring of her condition, that as she lay with her throat cut he took the time to hide the knife and sheath and to put on shorts, despite initially maintaining in the video record that he sat with the deceased from the time she was hurt until the arrival of the police and the ambulance. In the video he had stated that following the injury he had moved the deceased from the kitchen, where he said she must have been for "some time", to the lounge and that he was not sure whether this was before or after he went outside. However, his evidence was that on returning from calling the ambulance and the police he found her standing in the doorway to the loungeroom. A further matter was his evidence, that, after the injury the deceased spoke recognisable words to him, as being entirely inconsistent with the evidence of Dr Margolius, which was not significantly disputed by Dr Collins. It could also be seen to be inconsistent with the evidence of the ambulance officers. If disbelieved it could lead to the inference that the accused was attempting to play down the seriousness of the wound in support of his claim that it was unintentional. All of this was open for consideration together with Dr Margolius' evidence of the nature and extent of the wound, the lacerations, bruising, abrasion and as to the relative position of the deceased and the applicant when the injury was inflicted. In my opinion on all that evidence, and even without the evidence of the bruises, the jury having rejected the applicant's evidence as to what had occurred, it was open to it to be satisfied beyond reasonable doubt that the applicant had the intention to kill when, having deliberately put a known razor sharp knife to her throat with the intention of cutting it, he then did so.

Ground (2) has no merit and misconceives the effect of what is called the rule in Browne v Dunne (1894) 6 R 67. Herschell LC said in that case at 70-71:

"My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses ... Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted".

The applicant was charged with wilful murder. He was defending that charge. On those facts alone it is absurd to suggest that he was not on notice that the Crown case was that, in killing her, he had the intention to kill her. The Crown opened its case and led its evidence, including that on which it relied to establish intention. Although not obliged to do so, the applicant elected to give evidence and gave his explanation as to how the death of the deceased came about. The jury thereby became aware of his denial of the allegation of intent. The applicant led evidence on which he asked the jury to find either no intent or that intent was not proven beyond reasonable doubt. The issue was perfectly clear and did not require the type of cross-examination referred to in the ground. There was and could be no unfairness. If intent were to be found it required rejection by the jury of the applicant's relevant testimony and the finding, by way of inference from the facts accepted by it, of intent beyond reasonable doubt. Assuming a negative reply, the answer to a direct question in cross-examination as to whether he had the intent to kill could not assist if the jury did not accept his testimony as to the occurrence. That indeed was this case.

In my view there is nothing in Ground (3). His Honour's direction as to the use that the jury could make of the admitted lies was proper and appropriate. It accorded with the direction proposed by the majority in Edwards v The Queen [1993] HCA 63; (1993) 68 ALJR 40 at 48. Indeed applicant's counsel conceded that the lies told could be used to show consciousness of guilt but, in his submission, not of wilful murder or murder, but only of manslaughter. The charge faced by the applicant was that of wilful murder. That was for the jury to firstly consider. It was entitled to take into account the lies told if satisfied of their relevance as instructed by His Honour. It is not necessary that the lie, if found to be a relevant lie, go directly to the issue of intent. The test of its relevance is that it "must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie". (Edwards (supra) at 48). That implication can only be by way of inference and, in my opinion, it may, in appropriate circumstances, result from the lie itself and, in other circumstances, from the lie considered together with other direct or circumstantial evidence. Whether or not the implication is to be made and in what respect it implicates the accused are matters for the jury. In my view it would be inappropriate and indeed wrong for the learned trial Judge to have directed the jury, as the applicant's counsel submits he should have done, that it could only use the lies to inculpate the applicant in the offence of manslaughter.

I turn now to Ground (3A). His Honour gave no direction as to the use the jury could make of the fact that the applicant hid the knife. His relevant direction was that referred to above as to the use that could be made of lies, one of which was that the applicant knew nothing of the knife. The lie having been admitted and the jury instructed as to the use it might make of it, it was not unfair to the applicant that His Honour did not direct the jury as to the use it could make of the hiding of the knife. It was a fact which proved the lie. Applicant's counsel submits that, as it paints a bad picture of the applicant, it might well have led the jury to conclude that he hid the knife because he was guilty of wilful murder and that His Honour should have directed the jury that the knife might have been hidden for some other reason. He concedes that no such direction was requested at trial. In my opinion, that point was adequately dealt with in the direction as to lies in which His Honour pointed out that a lie might be told for many reasons. It was a matter for the jury whether they thought the telling of the lie, established by the fact that he hid the knife, considered with all of the other evidence, could lead to a conclusion that he had the intention to kill the deceased. The hiding of the knife being an item of circumstantial evidence, it was not necessary that the jury be satisfied beyond reasonable doubt in respect of any inference they might draw therefrom unless that inference was critical to the finding of guilt. In my opinion, the following reasoning of the majority in Edwards (supra) at 49 as to the use that may be made of lies and the standard of proof which applies thereto, applies equally to the acts which prove the lie:

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty."

See also Shepherd v The Queen [1990] HCA 56; (1991) 170 CLR 573.

In my opinion it cannot be said that the act of hiding the knife gave rise to an inference that was an indispensable link in the chain of evidence necessary to prove guilt of wilful murder and it was not necessary that the jury required to be satisfied beyond reasonable doubt as alleged by the applicant.

Ground (4) also, in my opinion, is without merit. His Honour did not "raise the concept" alleged. What he said was as follows:

"It is a matter for you to say whether from those two sources, whether from the primary facts as to what happened, what you find happened, and from what you find he has said about it whether there was an intent to kill. And I say two things about that in addition: although the likely result of a particular act is in every case strong evidence of the intent with which it was done it doesn't finally decide that question.

You can't say because the result was the probable result it was necessarily the intended result. It is strong evidence of intent depending on what the act was of course, but it is not decisive of it. The second thing is that unless you can all agree unanimously and beyond a reasonable doubt that this man's intent was an intent to kill you can't find him guilty of wilful murder."

There is no suggestion in that direction of any "presumption" and indeed the direction expressly negatives the presumption alleged. It properly directs the jury's attention to the evidentiary weight of the consequences of such act or acts as the jury might find established. The authorities relied on by the applicant proscribe "the use, where a specific intent must be found, of the supposed presumption, conclusive or otherwise, that a man intends the natural or natural and probable consequences of his acts". (Smyth v The Queen [1957] HCA 24; (1957) 98 CLR 163 at 166.)

Ground (5). As to the statements in the video His Honour pointed out to the jury that the Crown contended that it contained significant admissions, referring to some of the alleged admissions. He told the jury, however, that it was for it to determine whether in fact it contained admissions. He then instructed the jury "but use the whole interview, take it all together, take into account the good bits from the accused's standpoint as well as the bad bits". As the video was in evidence and the jury had full access to it, it was not necessary that His Honour direct further as to its contents. There is nothing in ground (5) insofar as it relates to his comments on the content of the video. As to the alleged failure to put the applicant's response to the Crown's reliance on things said in the video, the applicant's submissions reveal the complaint to be that His Honour failed to put the following:

"... that the jury should interpret the applicant's words in the context of the circumstances of the recording of the video (namely, that the applicant was 'in a confused and upset state' ... he was covered from head to toe in the blood of his intended bride ... He had to endure watching the police ... take with a still camera and a video camera the image of the blood throughout the house. He had to display his ... body to the photographer, to the video camera holder, covered in ... blood ... then he has to wait ... 2 hours before he goes on the video that he confused another incident with this one (109F-110A); that the expression 'struck out' did not mean to cause a striking out type injury; that he did not even hear a question asked by the detective; that he was trying to put Ms Backshell in a good light and therefore not accusing her of attacking him as he described in evidence - see 181F-184B)."

The matters there referred to are not quotations from the applicant's evidence but are either direct quotes from defence counsel's submissions to the jury or a version of the submissions there made. Relevantly and in brief, the applicant's evidence-in-chief was that he was confused and that the confusion had an effect on his answers. In cross-examination however, he stated that in the video interview he had told the truth, that the incident was not clear in his mind but was a confused jumbled mess and that some answers he had given were part answers only. He said he had not forgotten anything but could not recollect events in a clear orderly way. It is significant that it was not suggested by him that the video recorded statements relied on by the Crown as admissions were inaccurate in any way or otherwise affected by his confusion. Consequently, the omission to refer to the matters relied on by the applicant is of no significance even were His Honour obliged to do so. In my opinion, he was, however, under no such obligation. It is beyond doubt that a trial Judge has an obligation to put the case of both the prosecution and defence fairly and even-handedly to the jury. He has no obligation, however, to identify and repeat the submissions of either side. In my view no miscarriage of justice could arise from His Honour's failure to again put to the jury the effect of the defence submissions relied upon. I would dismiss ground (5).

Ground (6). Again in my view there is no merit in this submission. The bruises referred to were bruises found on the body of the deceased in the course of the post mortem examination. They were found on the front and back of the deceased's head, on her upper torso, one at hip level and a number on the front and one on the back of the left leg. They were marked on a diagram of a female body by Dr Margolius. Her evidence was that some were "recent" and some not. In addition to the bruising there was a recent haemorrhage and laceration to the lower lip and gum and a recent wound to the finger. There was also evidence of a red mark under the applicant's armpit and marks on his arm, said by Dr Margolius to be "almost like finger marks or scratch marks that one would see as though somebody was holding a person in that region". Doctor Collins' evidence was that a "fresh bruise" is one that is somewhere between nought and 24 hours old in general terms.

At the outset of the trial applicant's counsel objected to the admissibility of the evidence of the bruises found on the deceased's body and represented on the diagram on the basis that there was no evidence to connect them to the applicant. That objection was overruled. In my opinion, it was a matter for the jury on the evidence before them to determine what relevance, if any, the fact of recent bruising had in the circumstances of this case. It could have relevance to the jury's consideration of the applicant's evidence that the deceased rushed at him, yelling abuse and pushing him and that he pushed her away a number of times, that she was jumping at the knife kicking, grabbing, punching and yelling and that he grabbed hold of her, that she had her teeth locked onto his arm and he was pulling, endeavouring to get free, and that some may have been inflicted then or some received when she fell to the ground. It could well have concluded the bruises to be consistent with that scenario in the absence of any evidence that they were present prior to the incident. Again, depending on the evidence as it emerged at trial, the bruises might have supported a conclusion that the applicant had acted violently to the deceased or that there had been a struggle in the events which caused her death. Then again, the jury may have rejected them as having no bearing on any issue before it. It seems to me that, in the case of a violent death, it would be wrong to exclude evidence of possible contemporaneous violence to the deceased which, depending on the evidence, could help explain the events under consideration. It is the obligation of the Crown to anticipate that an accused might elect to give evidence and to lead evidence in anticipation of what that defence might be. It does not know what the defence will in fact be. In the case of a violent death, there being evidence of bruises and other injuries which could not be excluded as being related to the cause of death, it would be relevant and proper for the Crown to cross-examine as to how those bruises came to be caused and whether they were in fact related to the events leading to death.

In my opinion it was entirely proper for the jury to have before it the state of the deceased's body as found following death, including any injuries of such recent origin that they were possibly relevant to the circumstances of the death. Some such evidence may be excluded on the ground that its prejudicial value overbears its probative value. That, however, was not the ground of objection and that is not to say that any such objection would necessarily have succeeded. What is important, however, is that after reference to the neck wound, his Honour instructed the jury as follows:

"As to the evidence of other bruisings, abrasions and cuts, a cut on the finger, the marks on the accused's own body including the swollen knuckles, it is all part of the evidence for you to consider.

You will of course bear in mind that each piece of evidence, in the form of this physical evidence of marks on these two people, is itself quite inconclusive as proof of guilt or proof of anything really. As Dr Collins pointed out each mark from the deceased bruised lip to the accused's swollen knuckles, from the bruises on the deceased's head to her torn fingernails, could have been caused in many different ways; and even the most recent bruising could have been caused up to 24 hours previously."

That direction, in my view, was entirely appropriate. It made clear to the jury that unless the evidence established a relevant nexus between the bruises and the cause of death, it had no probative value.

In its submissions the Crown conceded that the unexplained bruising to the deceased's body was strictly irrelevant, but that given the way it was used and His Honour's relevant directions it did not lead to a miscarriage of justice. I do not agree with that concession, but if I be wrong I agree that the admission of the evidence, having regard to those matters, could not give rise to a miscarriage of justice and that its admission could not deprive the applicant of a fair chance of acquittal.

For the above reasons I would grant the applicant leave to appeal but would dismiss the appeal.

I agree with the reasons for judgment which have been prepared by Franklyn J. I also agree that leave to appeal should be granted but the appeal be dismissed.