R v AN; R v LM - [2022] NSWSC 776 - NSWSC 2022 case summary — Zoe

NSWNSWSC

R v AN; R v LM

[2022] NSWSC 776

Supreme Court of NSW|2022-05-16|Before: Walton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-05-16

Before

Walton J

Catchwords

[2018] HCA 8 Batcheldor v R (2014) A Crim R 461
[2014] NSWCCA 252 Campbell v The Queen (1980) 2 A Crim R 157
[1981] WAR 286 Chamberlain v The Queen (1983) 153 CLR 514
[1983] HCA 13 Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Source

Original judgment source is linked above.

Catchwords

[2018] HCA 8 Batcheldor v R (2014) A Crim R 461[2014] NSWCCA 252 Campbell v The Queen (1980) 2 A Crim R 157[1981] WAR 286 Chamberlain v The Queen (1983) 153 CLR 514[1983] HCA 13 Chamberlain v The Queen (No 2) (1984) 153 CLR 521[1984] HCA 7 Dansie v The Queen [2020] SASCFC 103 Fleming v The Queen (1998) 197 CLR 250[1998] HCA 68 Nguyen v R (2007) 173 A Crim R 557[2007] NSWCCA 249 R v ANR v LM [2021] NSWSC 1657 R v Anderson (2000) 1 VR 1[2000] VSCA 16 R v Moffatt (2002) 112 A Crim R 201[2000] NSWCCA 174 R v Shoesmith [2011] QCA 352 R v Sodo (1975) 61 Cr App R 131 Royall v The Queen (1991) 172 CLR 378[1991] HCA 27 Spiteri-Ahern v R [2022] NSWCCA 56 Swan v The Queen (2020) 269 CLR 663[2020] HCA 11 Ussher-Clarke v R [2018] NSWCCA 61 Velevski v R (2002) 187 ALR 233

Judgment (73 paragraphs)

[1]

[2]

Judgment

On Saturday 1 and Sunday 2 February 2020, AN used the social networking application Grindr to engage in messaging with Peter Keeley ("the deceased") and thereby lured the deceased from Canberra, ACT, to Broulee on the NSW south coast, with the promise of a sexual encounter.
The Grindr chat, including the arrangement to meet in Broulee, continued throughout the night on Saturday 1 February and into Sunday 2 February 2020.
Shortly before 3.00am on Sunday 2 February 2020, the deceased left the apartment in Canberra that he was temporarily residing in. Later that morning, the precise time being unknown, he commenced his journey to Broulee. At approximately 9.30am, the deceased arrived at Braidwood where he stopped for some time.
The deceased then travelled from Braidwood to Batemans Bay (approximately a 50-minute drive). At 12.46pm he messaged AN, "I'm in the bay now I'll be about 10 minutes before I leave". There were no further messages sent by the deceased to AN until 2.30pm. In the meantime, the deceased communicated with a friend in Canberra about borrowing some money to book a motel. Whilst the deceased was in Batemans Bay making these arrangements, AN continued to send the deceased Grindr messages to ascertain his whereabouts between about 12.49pm and 2.25pm.
Meanwhile, at 12.35pm, the co-accused, WD, sent a text to LM, asking him whether he wanted to "pop by for a training session". A short time later LM went to WD's house at a location at Massey Street, Broulee ("WD's home"). After the deceased sent the message to AN at 12.46pm saying he was "in the bay" and would "be about 10 minutes", AN replied at 12.49pm saying, "Okay cool". At 1.02pm, AN performed an internet search for "Does holding a metal object in your hand make a difference to your punch". At 1.04pm, AN again called WD on his mobile phone. AN then went to join LM and WD at WD's home. Collectively, AN and LM shall be referred to collectively as "the accused" and WD shall be referred to as "the co-accused," or "WD".
At some stage during these interactions, AN, LM and WD discussed a plan for the three of them to tie up (that is, to detain) and "bash" (that is, to inflict actual bodily harm to) the deceased along a powerline easement south of the Broulee township.
The three accused discussed meeting at the third or fourth power pole along the powerline easement. AN was to meet with the deceased at the Imlay Street tennis courts and bring him down to the third or fourth power pole along the easement. There, LM and WD would join AN in carrying out the agreed enterprise.
After some further exchanges on Grindr, AN and the deceased met and travelled together in the deceased's car, a Honda Jazz ("the deceased's car") from their meeting at the tennis courts in Imlay Street, to a location on the powerline easement running off Grant Street, Broulee near the third or fourth power pole from the Grant Street end: a location approximately 300m Southwest from the Grant Street intersection and approximately 220m Northwest of the fire trail intersection ("the crime scene").
Between about 2.34pm and 2.53pm, AN, LN and WD were seen at Massey Street. Slightly after 3pm, LM and WD walked from that location to the area of the fourth power pole on the powerline easement, in the bush off to the side.
The deceased and AN arrived at the crime scene at 3.33pm, in the deceased's car. LM and WD left their location in the bush off to the side of the easement around the fourth power pole and joined AN at the crime scene where together, the three accused detained the deceased, tied his wrists and ankles, taped his "head/face/mouth" with brown coloured packaging tape, and inflicted actual bodily harm upon him.
The three accused then departed the crime scene and returned to WD's home via the bush and the beach.
It was common ground that the time of death was between 3.33pm and 4.45pm on 2 February 2020; the later time being when Mr Marc Devlin found the deceased.
An autopsy report was prepared by Dr Bernard I'Ons ("Dr I'Ons") dated 4 May 2020 ("the Autopsy Report"). As an overview, it may be noted that he determined at autopsy that the deceased sustained multiple and significant blunt force craniofacial injuries, including widespread abrasions, contusions, lacerations, and a fractured nose. The distribution indicated multiple blunt force injuries to the sides of the head, forehead, cheeks, nose, mouth, eyes, and left ear. There were horizontal lacerations below each eye associated with contusions and longitudinal scrape abrasions on the forehead which were also present on the left shoulder and left knee.
Dr I'Ons found the cause of death to be craniofacial trauma with airway obstruction. That conclusion is contested by the accused and is a pivotal issue in this trial.

[3]

The Criminal Proceedings

On 9 May 2022, AN and LM were each arraigned with respect to two charges contained in an amended indictment.
Count 1 on the amended indictment charged each accused with an offence under s 86(3) of the Crimes Act 1900 (NSW) ("the Act"). The charge on the amended indictment was that AN and LM did, on 2 February 2020, detain the deceased without his consent and with intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, AN, LM and WD, were in company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased ("the foundational offence").
AN and LM pleaded guilty to this foundational offence. Senior Counsel for the accused accepted that they had participated in a joint criminal enterprise to detain the deceased and inflict actual bodily harm on him while he was detained, whilst in the company of each other and the co-accused.
AN and LM were also charged, by, count 2 on the amended indictment, with the charge of murder. They each pleaded not guilty to this charge.
The accused made an application for an order that they be tried jointly by a judge-alone, pursuant s 132(1) of the Criminal Procedure Act 1986 (NSW) ("the Criminal Procedure Act"), which application was opposed by the Crown. On 16 December 2021, this Court ruled in favour of the application and, in the result, the trial before the Court proceeded as a judge-alone trial: R v AN; R v LM [2021] NSWSC 1657.
The trials of AN and LM were conducted together as a matter of convenience. Nonetheless, as a matter of principle, each case for the accused must be considered separately and based on the evidence admissible in his case.
A central issue in the trial was whether the Crown has proven beyond reasonable doubt that the deceased died from a combination of craniofacial trauma with airways obstruction. A further consideration was whether the Crown had excluded as a reasonable possibility that the deceased died from methamphetamine toxicity. The Court was required to consider whether the prosecution had proved beyond reasonable doubt that the acts of the accused, were a substantial and significant cause of the death: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 ("Royall") at 411- 412.
The Crown tendered in the proceedings a Statement of Agreed Facts executed by the accused, the legal representatives of the accused, and the Crown ("the Agreed Facts"), which, in my view, conformed with the requirements of s 191 of the Evidence Act 1995 (NSW) ("the Evidence Act").
The Agreed Facts contained reference to a number of documents in a folder which were tendered in the Crown Case without objection (Folder 1) and which became Exhibit 4 in the trial. Exhibit 4 consisted of 26 Tender Files with 8 of those Tender Files being located on an accompanying USB. The Tender documents in Exhibit 4 consisted of various documents including SIX Maps images, photographs of AN and a transcript as an aide memoire to LM's ERISP.
The following police statements were also tendered as part of Exhibit 4: 1. Statement of Detective Senior Sergeant Gregory Moon, dated 16 July 2020, with selected annexed crime scene photographs (22 to 25) ("Detective Senior Sergeant Moon's First Statement").These photographs showed Markers Q and R which also appeared in Tab 13 of Exhibit 5. The photographs also included Marker S; 2. Statement of Detective Senior Sergeant Moon dated 30 May 2021, with selective annexed crime scene photographs (34 to 38, 40 to 41 and 48 to 52, showing Markers F and H) ("Detective Senior Sergeant Moon's Second Statement"); 3. Statement of Senior Constable Tania Cajna, dated 7 July 2020, with Annexure A and selective annexed crime scene photographs (33, 34, 39, 45 and 51 to 53) ("Senior Constable Cajna's Statement"); and 4. The possible routes taken by the accused shown using SIX Maps.
On the USB in Exhibit 4, there were seven videos which consisted of body worn video, as well as forensic imaging reconstructions. There was also the following: 1. A Forensic Imaging Reconstruction video of the deceased's car travelling in Broulee; 2. A walkthrough video with Mr Kenneth Norman Chapman, 6 February 2020; 3. A Forensic Imaging Reconstruction video of the walks in Broulee; 4. The video recording on Mr Devlin's phone; 5. An edited body worn video ("BWV") of Senior Constable Nathan Harries; 6. The edited BWV of the arrest of AN and LM and the transcripts of these arrests; and 7. The edited video of LM's ERISP and transcript.
The Crown also tendered an additional folder which was tendered as Exhibit 5 in the proceedings. That folder included: 1. The Autopsy Report; 2. The Autopsy Report Photos by Dr I'Ons ("Autopsy Photos"); 3. A witness Statement by Chantelle Walsh, a friend of the deceased, dated 4 March 2020. ("Walsh Statement"); 4. Drug Analysis Certificates, dated 31 August and 22 September 2020.
Exhibit 5 also contained the expert reports relied upon by the Crown and the accused, to which I shall now turn.
The Crown relied upon the evidence of Dr I'Ons and Dr Olaf H Drummer AO ("Dr Drummer"). The following reports were tendered by the Crown without objection: 1. Report by Dr Drummer dated 29 July 2021 ("Dr Drummer Report"); 2. Report by Dr I'Ons in response to Professor Johan Duflou ("Professor Duflou"), dated 2 August 2021 ("Dr I'Ons Report"); and 3. Toxicology Report of Dr I'Ons in response to Dr Drummer dated 2 August 2021 ("Dr I'Ons Toxicology Report").
The Crown also separately tendered the Neuropathology Report by Associate Professor Michael Buckland, dated 9 December 2021 ("Associate Professor Buckland Report").
AN tendered the reports of Professor Duflou and Professor Iain McGregor as follows: 1. Report by Professor Duflou, dated 30 May 2021 ("Professor Duflou Report"); 2. Supplementary Report of Professor Duflou, 13 April 2022 ("Professor Duflou Supplementary Report"); 3. Further Supplementary Expert Opinion by Professor Duflou, 5 May 2022 ("Professor Duflou Supplementary Opinion"). Two medical scientific research papers accompanied this opinion. They were: 1. T Hortobágyi, S Wise, N Hunt, N Cary, V Djurovich, A Fegan-Eael, K Shorrock, D Rouse and S Al-Sarraj, 'Traumatic axonal damage in the brain can be detected using β-APP immunohistochemistry within 35 min after head injury to human adults' (2007) 33 Neuropathology and Applied Neurobiology 226 ("Hortobágyi Paper"); and 2. C Gorrie, S Oakes, J Duflou, P Blumbergs and P Waite, 'Axonal Injury in Children after Motor Vehicle Crashes: Extent, Distribution and Size of Axonal Swellings Using β-APP Immunohistochemistry' (2002) 19(10) Journal of Neurotrauma 1171 ("Gorrie Paper"); 1. Third Supplementary Expert Opinion - AN Death of Peter Keeley of Professor Duflou ("Third Supplementary Report"); and 2. Report by Professor McGregor, dated 28 June 2021 ("Professor McGregor Report").
During the trial the following medical papers were tendered by AN: 1. B Logan, C Filgner and T Haddix, 'Cause and Manner of Death in Fatalities Involving Methamphetamine' (1998) 43(1) Journal of Forensic Science 28 ("Logan Paper"); 2. S Darke, J Duflou, J Lapping and S Kaye, 'Clinical and Autopsy Characteristics of Fatal Methamphetamine Toxicity in Australia' (2018) 63(5) Journal of Forensic Science 1466 ("Darke Paper"); 3. P Dominic, J Ahmed, H Awwab, B Shenvarin, C Kevil, N Goeders, S Murnane, J Patterson, K Sandau, R Gopinathanniar, B Olshansky, 'Stimulant Drugs of Abuse and Cardiac Arrhythmias' (2022) 15(1) Circulation: Arrhythmia and Electrophysiology 71 ("Dominic Paper"); 4. C Kevil, N Goeders, M Woolard, S Bhulyan, P Dominic, G Kolluru, C Arnold, J Traylor, A Wayne, 'Methamphetamine Use and Cardiovascular Disease: In Search of Answers' (2019) 39 Arteriosclerosis, Thrombosis, and Vascular Biology 1739 ("Kevil Paper"); and 5. D Dawes, S Ho, J Cole, R Reardon, E Lundin, K Terwey, D Falvey, J Milne, 'Effect of an Electronic Control Device Exposure on a Methamphetamine-intoxicated Animal Model' (2010) 17(4) Academic Emergency Medicine 436 ("Dawes Paper").
The Court also received the following paper: S Al-Sarraj, C Troakes and G Rutty, 'Axonal injury is detected by βAPP Immunohistochemistry in Rapid Death from Head Injury following Road Traffic Collision (2022) International Journal of Legal Medicine ("Al-Sarraj Paper").
An issue was raised by the accused as to the weight that should be given to Dr I'Ons' evidence where his opinion differed from Professor Duflou given, it was submitted, the superior qualifications and experience of Professor Duflou.
Mr C Steirn SC, who appeared for AN, submitted that: With no disrespect intended to Dr I'Ons, if one compares Dr I'Ons' CV, Exhibit 6 your Honour, Dr I'Ons has been a forensic pathologist since 2016 which is less than six years. He has not published any papers, nor has he done any research into any aspect of forensic pathology, certainly not in relation to axonal injury or methamphetamine toxicity. I'll deal with that more thoroughly when I come to axonal injury and who it refers to. We respectfully submit that the comparison between Professor Duflou and Dr I'Ons speaks for itself through no fault of Dr I'Ons.
In order to address this issue, I will commence with a broad description of the qualifications of Dr I'Ons and Dr Duflou.
Dr I'Ons is a staff specialist forensic pathologist working with the Department of Forensic Medicine, Sydney, and Wollongong. He has a Bachelor of Divinity from Moore Theological College; a Bachelor of Medicine and a Bachelor of Surgery from the University of New South Wales with First Class Honours; and fellowships in specialist anatomical pathology and specialist forensic pathology with the Royal College of Pathologists in 2015 and 2016 respectively. He was awarded the NSW Health Pathology Chief Executive award in 2020. Since 2016, Dr I'Ons has performed more than 1200 autopsies, in more than 100 homicides.
Professor Duflou is a specialist forensic pathologist with experience examining, interpreting, and reporting on a large number of deaths over a period of 35 years. He has a Bachelor of Medicine, a Bachelor of Surgery a Master of Medicine in Forensic Pathology, and a Diploma in Aviation Medicine. He is a fellow at the Royal College of Pathologists of Australasia and the Faculty of Forensic and Legal Medicine of the Royal College of Physicians (London).
Professor Duflou was a senior pathologist at the Sydney Morgue between 1988 and 2015. He is currently in private practice and holds a part time appointment as Forensic Pathologist in the ACT conducting the majority of coronial autopsies.
Professor Duflou has undertaken significant research in relation to the detection of traumatic axonal injury in the brain by Beta Amyloid Precursor Protein ("β-APP") immunohistochemistry, and methamphetamine toxicity.
Despite Professor Duflou's eminence in the field of forensic pathology, I do not consider that the resolution of the medical issues in this matter may be properly approached by the unquestioning adoption of one expert's views based solely and only upon their qualifications and experience.
In this case, each forensic pathologist had the specialist knowledge to state an opinion on disputed medical issues key to the question of causation and, in particular, in the field of forensic pathology, each had extensive experience.
No issues were raised by Professor Duflou in that respect. In fact, as Professor Duflou observed, Dr I'Ons had performed a competent and detailed autopsy "which has been documented to a high standard with comprehensive records of naked-eye findings and microscopy". Further, Dr I'Ons was said to have conducted "all necessary autopsy-based investigations".
That is not to say that this Court may not have regard to, in the course of considering the logical force of the testimony of an expert with insights or learning they may have through specialist research or study in particular areas of their field of medical speciality. I refer in this respect to the first five directions I will give as to the consideration of expert evidence. Those observations are particularly applicable to some questions that will arise as to injuries to the deceased's brain, and, in particular, axonal injuries and methylamphetamine toxicity. Professor McGregor expressly recognised Professor Duflou's expertise in the latter category.
A brief description should also be provided as to the qualifications and experience of Professor McGregor and Dr Drummer. Professor McGregor is a professor of psychopharmacology and Academic Director of the Lambert Initiative for Cannabinoid Therapeutics at the University of Sydney. He has a master's with Honours in Experimental Psychology from the University of Oxford and a PhD in Psychopharmacology from the University of Sydney. He has more than 30 years of experience in the field of psychopharmacology and has published more than 280 international peer-reviewed journal articles in this area. He provided a report focusing on the effects of the drugs methylamphetamine, GHB and cannabis, the interpretation of their blood concentrations and their possible relevance in this case.
Dr Drummer has a PhD from Melbourne University and has been involved in the analysis of drugs and poisons for over 40 years. He has published extensively in the field and acted as an expert toxicologist in hundreds of cases in Australia, New Zealand and globally.
By virtue of orders made under s 275C of the Criminal Procedure Act, Dr I'Ons and Professor Duflou ("the forensic pathologists") gave concurrent evidence. The bases for this decision will be discussed in the context of legal principles which I will turn to shortly. It is sufficient to note at this juncture that the directions were made for the taking of concurrent evidence. Those directions were made in response to areas of agreement and various disputed categories. The areas of agreement were as follows: 1. The deceased died between 3.33pm and 4.45pm on 2 February 2020. 2. The deceased was located with his hands bound behind his back and his ankles taped together. 3. The deceased had tape around his head which when complete would have been over his mouth. There was a gap where the nose would have been. 4. The deceased had dirt in his nostrils. 5. The deceased had a broken nose. 6. The deceased had injuries to his face and head which he received when he was assaulted by one or more of the accused. These injuries are described in the Autopsy Report and photographs were taken. 7. Examination of the deceased's heart was normal. 8. The deceased had the following drugs in his blood:

Methylamphetamine 0.42mg/L
Amphetamine 0.09mg/L
Delta-9-tetrahydrocannabinal 0.011mg/L
Delta-9-THC Acid 0.038mg/L
4-Hydroxybutanoic acid (GHB) 13mg/L 1. There was no level at which methylamphetamine was necessarily fatal. 2. The amount of methylamphetamine in his system has been found in cases where a person has died entirely as a result of another cause. There have been cases where a person has died from methylamphetamine toxicity with a lower level of methylamphetamine in their blood. 3. The level of methylamphetamine at autopsy may not be the level when the person was alive. Studies in relation to methylamphetamine related deaths refer to the level at autopsy. 4. The level of cannabis was low and was not likely to relate to the cause of death. 5. The level of GBH was not reflective of the ingestion of an illicit substance.

The seven areas of dispute were jointly identified by the parties for the purposes of the taking of the concurrent evidence as follows: 1. Severity of injuries and cause of same. 2. Severity of head injuries. (This issue extended to the findings as to axonal injury in the neuropathology report of Associate Professor Buckland). 3. The obstruction of airways. 4. Relationship of positional asphyxiation. 5. Interpretation of petechiae. 6. Cause of death. 7. Role of methylamphetamine in cause of death.
I will return to the disputed medical areas after firstly directing myself as to the appropriate questions of law. I will analyse the expert evidence under each subject area where the experts were in disagreement. In that sense, I will follow the course adopted by the parties in their submissions. However, it should be emphasised that that approach has been adopted for convenience of analysis. My final deliberations will consider the entirety of the evidence, including the expert evidence, in order to determine the central issues arising in this trial, which I have earlier articulated. I emphasise that my final deliberations are reached after considering the whole of the evidence in light of the directions I will give and having regard to the submissions of the parties.

[4]

Judge Alone Trial

In a criminal trial by judge alone, the trial is to be conducted in accordance with the requirements of s 133 of the Criminal Procedure Act which is in the following terms: 133 Verdict of single Judge A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
By s 133, a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of guilt of an accused person and those verdicts have the same effect as a jury verdict.
The requirements of s 133(2) and (3) are legal imperatives: Fleming v The Queen (1988) 197 CLR 250; [1998] HCA 68 at [27] (there considering the identical predecessor in s 33(2); see Spiteri Ahern v R [2022] NSWCCA 56 ("Spiteri") at [38]. I must set out the relevant principles of law and findings of fact upon which those verdicts are based (s 133(2)). I must take into account any warning that the jury would receive (s 133(3)).
There must be more than a literal compliance with s 133(2) and the process of reasoning leading to the verdict must be clear. Thus, as was stated in Spiteri at [39], the requirements of s 133(2) are not satisfied merely by bare statement of the principles of the law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter, and ultimately, the verdict that is reached. The court must engage with the arguments made by counsel: AK v Western Australia (2018) 232 CLR 438; [2018] HCA 8.

[8]

Expert Evidence

I remind myself about the principles relating to expert evidence. In this case, I have heard evidence from two expert forensic pathologist witnesses (Dr I'Ons and Professor Duflou) as well as from toxicologists Dr Drummer and Professor McGregor.
The expert evidence in this matter has been provided to assist me in determining whether the Crown has proven beyond reasonable doubt that the deceased died from a combination of head injuries and asphyxiation as alleged in the Crown case.
In the present case, there is a conflict between the expert evidence of Dr I'Ons (called on behalf of the Crown) and Professor Duflou (called on behalf of one of the accused, AN) in relation to the cause of death. It goes to the issue of causation. It is not a case of simply choosing between their evidence as a matter of simple preference. In this particular case, the Crown has the onus of proof in showing that the acts of the accused were a "substantial or significant cause of death" or a "sufficiently substantial" cause: Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11.
Experts can differ in the level of and degree of their experience, training, and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness' specialised knowledge.
All of these witnesses had specialised knowledge based on their training, study, or experience. The expert evidence of these expert witnesses in this trial was admitted to provide me with expert information and opinion which is within the witness' expertise, but which is likely to be outside the experience and knowledge of a lay person.
I must bear in mind that if, having given the matter careful consideration, I do not accept the evidence of any of the experts, then I do not have to act upon it.
To the extent that there is any conflict within the evidence of an expert, it is for me to decide which part or parts of that evidence I accept and which part or parts I reject. Also, to the extent that there is any difference (or differences) between the evidence of the experts, it is for me to decide which expert evidence I accept and which I reject.
In doing so, I must examine the basis on which the expert formed his or her opinion and determine whether the facts constituting the basis have been proven: Nguyen v R (2007) 173 A Crim R 557; [2007] NSWCCA 249.
I do not have to act upon the expert opinion where the facts upon which the opinions are based do not accord with the facts as I find them to be.
Indeed, I do not have to accept the evidence - even the unchallenged evidence of an expert. However, unless such evidence is simply unbelievable, I note that I would need to have a good reason to reject it.
The value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his opinion. It is also dependent on the degree to which the expert analysed the material upon which the opinion is based, and the skill and the experience brought to bear in formulating the opinion given.
It is for me to decide whether an opinion is credible and what weight it should be given: Velevski v R (2002) 187 ALR 233; [2002] HCA 4 ("Velevski"). I am entitled to reject the expert evidence if I am not satisfied that the science or the testing is sufficiently accurate, reliable, or dependable.
Conflicting expert opinions of scientific evidence do not necessarily require me to hold a reasonable doubt: R v Shoesmith [2011] QCA 352 ("Shoesmith") at [41]. I can analyse the bases of the expert opinions with reference to published medical research identified by the experts: Velevski at [85]; Shoesmith at [41]. If experts refer to published medical research, this must be within the researcher's original context, and with respect to the limits placed by the author on his or her conclusions.
I must recall that in exceptional cases, I may be incapable of resolving a conflict between experts on matters of science. If the conflict relates to an area where I cannot resolve that conflict in a manner which would eliminate reasonable doubt, the accused must be acquitted: Velevski; Ussher-Clarke v R [2018] NSWCCA 61.
I must not accept disputed scientific evidence that is unfavourable to the accused unless there is a good reason to reject the defence evidence: Velevski.
If the conflicting evidence of the experts is not based on matters or assumptions with respect to matters upon which I can reach my own conclusions but, instead is evidence of: … opinion on matters of science within disciplines of which each [is] a master, and at a level of difficulty and sophistication above that at which a juror ... might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation', a [fact finder] cannot, by reference solely to that evidence, resolve that conflict in a manner 'which would eliminate reasonable doubt' (Velevski, at [85], citing Chamberlain v The Queen (1983) 153 CLR 514; [1983] HCA 13 and Chamberlain v The Queen [No 2] (1984) 153 CLR 521; [1984] HCA 7).
As my decision as to which expert to accept is likely to determine the accused's guilt or innocence, I may only accept the evidence of the expert who is adverse to the accused if I am satisfied beyond reasonable doubt that his or her opinion is correct: R v Anderson (2000) 1 VR 1; [2000] VSCA 16; R v Sodo (1975) 61 Cr App R 131. If the evidence does not permit me to exclude, as a reasonably hypothesis, the possibility that there was another cause of death, I should find reasonable doubt as to the guilt of the accused: Velevski at [114]; confirmed in Dansie v The Queen [2020] SASCFC 103 at [456].

[13]

Section 275C of the Criminal Procedure Act 1986 (NSW)

On 10 May 2022, the Court ordered that the evidence of the forensic pathologists would give concurrent evidence and made the following directions: 1. That the expert witnesses be sworn in immediately after another. 2. That the expert witnesses, when giving evidence, occupy a position in the court room determined by the court. 3. That each witness give an opening oral exposition of his or her opinion, or opinions, on the issue or issues concerned, including: 1. The expert witnesses confirm their areas of agreement; 2. Whether the expert witness adheres to any opinion earlier given; or 3. Whether, in the light of any such evidence, the expert witness wishes to modify any opinion earlier given. 1. That cross-examination or re-examination of the expert witnesses giving evidence occur by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time, until the cross-examination or re-examination of all of the expert witnesses is complete. 2. That each expert witness given his or her opinion about the opinion or opinions given by another expert witness. 3. That any expert witness giving evidence in the circumstances be permitted to ask questions of any other expert witness together with whom he or she is giving evidence as so referred to. 4. The aforementioned directions shall be undertaken with each area of disagreement.
I propose to give brief reasons for the taking of that course.
Section 275C provides as follows: 275C Court may direct expert evidence be given concurrently or consecutively (1) The court may, at any time, give directions as it considers appropriate to enable the giving of expert evidence concurrently or consecutively in criminal proceedings. (2) Directions under this section may include the following - (a) a direction that an expert witness give evidence at any stage of the proceedings, (b) a direction that more than one expert witness give evidence at the same time in the proceedings, (c) a direction that an expert witness give an oral exposition of the witness's opinion on a particular matter, (d) a direction that an expert witness be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each question relevant to one matter or issue at a time, (e) a direction that an expert witness be permitted to ask questions of another expert witness who is giving evidence at the same time during the proceedings. (3) A direction may be given under this section only with the consent of the prosecutor and the accused person. (4) This section does not limit any other powers of a court to give directions in relation to evidence, witnesses or the management and conduct of proceedings.
Section 275C was inserted into the Criminal Procedure Act by the Justice Legislation Amendment Act (No 3) 2018 (NSW). In the Second Reading Speech, the Attorney General, the Hon Mark Speakman SC MP, stated: Item [4] of schedule 1.15 inserts section 275C into the Criminal Procedure Act to give courts a clear power to give directions to enable the giving of expert evidence concurrently or consecutively in criminal proceedings, with the consent of the prosecutor and the accused. This amendment will enable the giving of concurrent evidence by experts - colloquially known as 'hot tubbing' - in order to assist judicial officers and juries to understand and engage with expert evidence. It will also streamline the process of that evidence being given in the course of criminal proceedings. Evidence is traditionally given consecutively in criminal proceedings and follows the usual process of examination-in-chief, cross-examination, and re-examination. This amendment will enable expert witnesses to be called immediately after one another. (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 2018, at p 69)
My reasons for taking expert forensic pathological evidence by way of concurrent evidence are as follows: 1. The evidence of the forensic pathologists was plainly critical to the consideration in the trial of the issue of causation; 2. That evidence was attended by some complexity, including opinions as to the current applicable state of medical science, bearing upon particular issues, such as the detection of axonal injury by β-APP immunohistochemistry and deaths due to methamphetamine toxicity; 3. Concurrent evidence provided an opportunity to obtain better understanding of the respective opinions by providing an opportunity for an exchange of opinions in a structured discussion around well-defined issues. The position of the experts in that common forum permitted the sharper definition of issues and the refinement of areas of difference including the basis for reliance being placed on medical literature; 4. The maintenance of cross-examination during the concurrent evidence ensured the trial was fair to the respective interests. The modification of cross-examination into structured issues or topics served to better elucidate the basis for the opinions held by the experts in each area. The capacity of the experts to make additional observations at the close of each issue or topic did not artificially confine the cross-examination available to counsel, but enabled the experts to clarify particular aspects of their evidence (with the prospect of further cross-examination as required); 5. It is true, as I have explained, that each expert was well qualified to express opinions, even though the extent of the experience as to particular topics may vary. Further, as to the issues of credit, I do not consider that they were of such a nature as would permit the Court to entirely prefer one expert over another. The concurrent evidence did permit better understanding of the bases on which the opinions were expressed and thereby assisted and permitted the court to form its views as to the respective issues based upon the expert opinions and other relevant medical literature in the context of the facts and circumstances found by the court. 6. Overall, the process permitted the experts to present their view comprehensively in circumstances where they could respond directly to each other so that their opinions are tested by their peer as well as by a process of cross-examination.

[16]

Meeting between AN and deceased

At 2.30pm, the deceased sent a message to AN on Grindr that said, inter alia, "I am on the way to pick you up…". AN responded at 2.34pm saying, "Okay cook (sic - cool) sounds good when you come to Broulee and meet me on Grant Street".
At an estimated time of 2.40pm, AN, LM and WD were witnessed leaving the vicinity of WD's home. At the intersection with Grant Street, LM and WD turned southwest along Grant Street towards the McNee Street intersection and the powerline easement. One of these males was seen carrying a bag. LM had his mobile phone on him. AN walked in the opposite direction, northeast along Grant Street towards the Imlay Street intersection.
At 2.41pm, AN sent a message to the deceased on Grindr saying, "Actually no meet me at Imlay Street".
At 2.45pm, AN sent a message to the deceased on Grindr saying, "I'm waiting at a bench next to the tennis courts that are on Imlay Street Broulee".
At 2.51pm, the deceased sent a message to AN on Grindr saying, "Leaving now" and AN responded "Okay see you soon".
At 2.51pm and 2.52pm, AN phoned a telephone number but it was a missed call. This was an attempt to call LM, but the wrong number was dialed. At 2.53pm, AN called WD's number but the call went unanswered.
Between 2.53pm and 3.11pm, the deceased and AN continued to exchange messages over Grindr. The deceased suggested going straight to a hotel, but AN pleaded with him to instead go to a location where he had "a little stash hidden". At 3.04pm, AN sent a message to the deceased saying, "but pleaaaasee I wanna do it here and then suck you off I've always wanted to in this spot". At 3.10pm, the deceased agreed.
At 3.25pm, the deceased's vehicle was captured turning into Imlay Street from Grant Street and travelling west towards the tennis courts.
At about 3.27pm, AN got into the deceased's car.
At 3.29pm, the deceased's car left Imlay Street and turned south onto Grant Street (in the direction of the crime scene).
A subsequent drive through performed by investigating police via George Bass Drive demonstrated the route travelled by the deceased and AN in the deceased's car from their meeting point at the tennis courts in Imlay Street to the crime scene via Grant Street, Broulee Road and then George Bass Drive and a fire trail off George Bass Drive leading to the powerline easement "the fire trail", a total distance of 1.85km.
As mentioned, at about 3.33pm, the deceased and AN arrived at the crime scene.
Meanwhile, after leaving WD's home at around 2.40pm, LM and WD walked from WD's home, turned left onto Grant Street and continued in the direction of the powerline easement. The movements of LM (and co-accused WD) were recorded by an application and GPS location data on LM's mobile phone as well as observations of a witness on the Bengello track.

[17]

Data recorded by an Apple Heath App downloaded from LM's mobile phone

Sergeant Adam Catto-Pitkin in the Digital Forensics Unit High Tech Crime Branch with NSW Police gave evidence on 9 May 2022. He has specialist training in relation to electronic evidence and examined the handset that was seized from LM. He extracted information contained on LM's handset via the Cellebrite program, in particular, the information from an Apple health application ("Health App") installed on LM's mobile phone.
The Health App tracks information relating to the physical activity of a user ("activities") including steps taken (walked or run), flights of stairs climbed, distance in metres and the length of time the activity took. When data was downloaded by investigating police from the phone following its seizure, there was data from the Health App (eight activations) as well as GPS location data relating to movements of the handset on 2 February 2020 between 1.21pm and 4.30pm (three activations).
The following are the locations of the handset at three different times as indicated by the three GPS location activations: 1. The first GPS location activation at 1.21pm placed LM's phone handset in Massey Street, Broulee at a location close to WD's home. 2. The second GPS location activation at 3.03pm placed the handset approximately 8m into the bush to the northern side of the powerline easement, approximately 130m southwest of the crime scene. 3. The third GPS location activation at 4.30pm was on the driveway of the property adjacent to WD's home.
Between 2.34pm and 2.53pm (that is, during the time when the accused and co-accused were seen by the Keane Family on Massey Street), the Health App on LM's phone recorded 992 steps (589.41m) of movement and then a further 12 steps (5.44m) taken at 2.55pm. As mentioned, the GPS location data at 3.03pm has the phone located on the powerline easement around the area of the fourth power pole in the bush off to the side. This distance of 594.85m (589.41 + 5.44m) together with the GPS location, records LM and WD walking from the vicinity of WD's home to the area of the fourth power pole on the powerline easement, pursuant to their agreement with AN.
Movement recorded by the Health App at 3.33pm (which is the time the deceased and AN arrived at the crime scene) until 4.24pm involved a total 3123 steps/2141.77m (with a further 359 steps/252.21m between 4.24pm and 4.30pm). This cessation of activity corresponds with the time of the third GPS location activation at 4.30pm, which placed the handset back at Massey Street. As the Crown submitted, the tracker shows LM in a long period of continuous activity from 3.33pm until 4.30pm.
During this period, LM and WD left their location in the bush off to the side of the easement around the fourth power pole and joined AN at the crime scene, where together, the three accused carried out the agreed foundational crime by detaining the deceased, tying his wrists and ankles, taping his head/face/mouth with brown coloured packaging tape, and inflicting actual bodily harm upon him. (I will return to the question of the tape covering the deceased's mouth).
The BWV by Senior Constable Harries shows a disturbed circular patch of dirt near the driver's door of the deceased's car. As I will discuss, Senior Sergeant Moon described multiple partial shoe prints in that area.
Given that LM and WD had moved from their concealed position in the bush to confront the deceased and the deceased had driven his car to the location where these marks were found (AN had driven to the location with the deceased), I agree with the Crown that an inference is available that an assault occurred at or about the circular area. It may be expected that the assault commenced shortly after the deceased's arrival; it was plain that the accused was motivated to assault the deceased, his keys were in the ignition of the car and his phone remained also inside.
The three accused then departed the crime scene and returned to WD's home via the bush and the beach. The Court was played a recording (Tender 7 in Exhibit 4) of police officers conversing with Kenneth Norman Chapman, ("Mr Chapman") who contacted the police in relation to seeing three young men (the accused and WD) walking along Bengello track on the afternoon of 2 February 2020. The recording showed Mr Chapman talking to police at the gate to the start of the fire trail (Bengello track), approximately 100m east of the powerline easement. The police officers placed two markers on the fire trail between which Mr Chapman indicated the youth entered, crossed, and exited the fire trail.
Bengello track runs from the beach carpark "Sand Mines" (just beyond the commencement of the powerline easement) to the Northern end of the Moruya airport. It is 3.4km long (6.8km return) and takes an average of 15 minutes to cycle one way (average 30 minutes return).
On 2 February 2020, Mr Chapman had cycled to the start of the track via Grant Street and had seen the deceased's car parked on the right-hand side of the powerline easement at the crime scene. Mr Chapman had then cycled the Bengello Track to the airport and back and waited for his son at the gates at the commencement of the track. While he was waiting there, he saw three young males (the accused and WD) come out of the bush on the powerline side of the Bengello track about 50m away from him.
In the Agreed Facts, it was stated that that the males turned to walk along the track in a northerly direction towards Mr Chapman, they saw him and stopped, looked startled, and immediately turned and began to walk quickly in the opposite direction for a short distance and then they left the track and headed through the bush on the other side of the track towards the beach.
In the walkthrough video, Mr Chapman stated that the three youths looked toward him. He stated: … the thing that was odd was that they started to come this way and then saw me on my bike and then turned and went the other way straight away.
Mr Chapman gave a statement in which he identified the approximate locations where he saw the three males emerge from the bush on the easement side of the track and where they re-entered the bush on the beach side of the track.
After seeing Mr Chapman and re-entering the bush, the accused and WD walked through the bush to the beach, then along the beach before walking up the sand dunes to the Massey Street beach access path and returned to WD's house. As I will mention, this route was filmed by police on 30 April 2021.
During tests conducted by Sergeant Catto-Pitkin on 7 and 8 April 2021, the above-mentioned route ("Route 5") was walked from the fourth power pole in the powerline easement southwest of Massey Street, to the crime scene and then across the easement, through the bush to the Bengello Track, through the bush to the beach, north along the beach to Massey Street beach access path and back to WD's home. This route is depicted in figure 1.5 in Annexure D to the statement of Sergeant Catto-Pitkin dated 7 June 2021. The total distance is 2.144km (2,144m). It took Sergeant Catto-Pitkin between 35 minutes 30 seconds and 40 minutes 30 seconds to walk this route.

[18]

Discovery of the Deceased's Body

At 4.45pm, Mr Devlin drove his Toyota Hilux twin cab utility vehicle onto the Grant Street end of the powerline easement to take his dog for a run. He did not notice any people in the area. As he drove south along the easement, he noticed the deceased's car located approximately 300m along the easement from the Grant Street end.
Mr Devlin stopped driving, got out of his utility vehicle, and saw the deceased lying on the ground to the west of the Honda. He video-recorded the scene with his phone. He observed that there was brown packing tape wrapped around the deceased's ankles, around his chin and neck area and he had his hands behind his back. Mr Devlin noticed the deceased appeared to be dead. He rang 000 (at 4.53pm on Mr Devlin's mobile phone call log; 4.54pm was recorded at NSW Police (Oak Flats) Radio Operations Centre). He also observed a patch of ground in front of the deceased's car which appeared to be disturbed as if there had been the scuffle, to which I have earlier referred, and there were apparent drag marks from that disturbed area to the location of the deceased.
First police arrived on scene at 5.11pm. Upon arrival, Senior Constable Harries activated his BWV and captured the disturbed soil in front of and to the front offside of the deceased's car. This disturbance was subsequently examined and recorded pictorially by crime scene officers (although there was some rain while the ground was not protected from the elements).
The BWV (which was muted) showed Mr Devlin standing in front of his vehicle and pointing toward a Honda Jazz. The camera moves towards the car and the deceased can be seen lying in the grass. The video shows three police officers approaching the body from the right. The footage stops and restarts to show two paramedics approach from an ambulance at 5.16pm. The footage stops and restarts to approach the crime scene (the car and the deceased) from the right, where the paramedics have come from. The recording stops and restarts at 5.21pm, depicting a conversation with Mr Devlin.
Ambulance officers arrived shortly after first police. They observed no signs of life from the deceased and confirmed the absence of a pulse on a heart monitor. Resuscitation was not attempted. The deceased was observed to be lying on his left side with his arms bound behind his back. His ankles were bound with brown packing tape and part of his face was also covered with this same tape. On his face the tape appeared to have a flap coming away from the area near the mouth. All the doors and windows of the deceased's car were closed. The keys were in the ignition. In the centre console was the deceased's mobile iPhone with charger and Bluetooth device attached.
At 12.25pm on 3 February 2020, a line search of the powerline easement and fire trail leading between George Bass Drive and the easement was conducted but nothing of interest was located. On 24 and 25 March 2020, further line searches were conducted around the crime scene and across to the Bengello track and the beach but nothing of interest was located.

[20]

Senior Sergeant Moon's observations

Crime Scene officers Detective Senior Sergeant Moon and Senior Constable Cajna attended the scene.
I will deal firstly with some observations made by Detective Senior Sergeant Moon: 1. On the ground in front of and to the right-hand side (offside) of the deceased's vehicle was disturbance of the soil substrate (represented by Markers R and S and depicted in Detective Senior Sergeant Moon's photographs 7, 8, 20, 21, 25-28). From this area of disturbance were two linear impressions in the dirt leading in the direction of the body of the deceased. 2. The deceased was lying partially on his back and left side. His head was turned with the left side facing down and right cheek exposed. There was a large amount of sand and soil adhering to the front part of his face. Further sand was evident within the nostrils and mouth. Body fluids were leaching from the nose. 3. Located around the deceased's head was brown coloured packaging tape. The tape had been wrapped multiple times around the head. The arrangement of the tape had separated at a point near the right side of the face or right ear. The section of tape originally positioned over the face was lying on the ground on the left side of the head. This tape was collected as an exhibit. 4. The deceased was wearing jeans which were folded at the ankles and torn around the knees. The jeans were dirt stained, mostly on the front and upper thigh areas. 5. The deceased's legs were secured at the ankles with brown coloured tape. It was examined and found to consist of several pieces of overlapped brown tape. There were areas of sand and grass material on the adhesive side of the tape. The tape was tightly secured and had been wrapped numerous times around the ankles with the end section showing evidence of extreme stretching, creating a skinny thread-like piece of the tape, consistent with the tape being pulled to break. 6. The deceased's wrists were located across each other and positioned behind his back. Brown packaging tape secured the wrists tightly with many returns of the tape wrapped around his lower arms. His hands were extremely dirty. A small amount of sand and a substantial amount of dried grass was located on the adhesive section of the tape. Many sections of the tape showed evidence of stretching. The tape was cut off prior to collection as an exhibit.

[21]

Forensic Examinations

The forensic examination of various aspects of the tape and the deceased's car and clothing undertaken by Detective Senior Sergeant Moon was summaried in the Agreed Facts as follows: 1. The tape from the deceased's head/face was examined. I will return to Detective Senior Sergeant Moon's opinions as to the relative position of the tape when considering his evidence. 2. An examination for fingerprints was conducted on this tape, but no suitable prints were developed. Confirmatory tests conducted on areas of apparent blood staining were all positive for human blood. 3. An examination for fingerprints was conducted on the tape around the deceased's ankles. Several fingerprints were developed that were compared with a set of recorded fingerprints of LM. A fingerprint developed from the adhesive side of the tape around the deceased's ankles matched the left ring finger of LM. Two other fingerprints developed from that same section of tape could not be ruled out as being the fingerprints of LM's left ring and left little fingers. Another fingerprint was developed from the adhesive side of the tape around the deceased's ankles that also matched the fingerprint of LM's left little finger. 4. An examination for fingerprints was conducted on this tape. Several fingerprints were developed that were compared with a set of record fingerprints of LM. A fingerprint developed from the non-adhesive side of the tape around the deceased's wrists matched the left palm of LM. 5. Tape lifts and swabs were collected from various parts of the deceased's car identified as likely DNA targets. No results of interest were identified. 6. Tape lifts were collected from various areas of the deceased's jeans, Nike branded (wrist) sweat band, light blue singlet, socks, and shoes. 7. A tape lift collected from the external front left side of the deceased's singlet contained DNA with a mixed profile originating from at least three individuals. The major contributor to the mixture has the same profile as the deceased and AN could not be excluded as a minor contributor. Assuming there were three contributors, and that deceased was one, it is greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AN, and an unknown, unrelated individual, rather than if it originated from the deceased and two unknown, unrelated individuals in the Australian population. The DNA from the additional minor contributor/s was not suitable for comparison due to low level. 8. A tape lift taken from the top front of the deceased's right shoe was found to contain a mixed DNA profile originating from at least two individuals. The major contributor to the mixture has the same DNA profile as the accused, AN. It is greater than 100 billion times more likely to obtain this major DNA profile from AN, rather than if it originated from an unknown, unrelated individual in the Australian population. The DNA from the minor contributor was not suitable for comparison due to the low level. 9. A tape lift taken from the top outer side of the deceased's left shoe was found to have a mixed DNA profile with the major contributor having a DNA profile matching WD. It is greater than 100 billion times more likely to obtain this major profile if it originates from WD, rather than if it originates from an unknown, unrelated individual in the Australian population. The deceased cannot be excluded as a minor contributor to this mixture. The DNA from the additional minor contributor/s is not suitable for comparison due to the low level.

[26]

The evidence of Mr Blake Motbey, a classmate of AN, was that in English class with AN "a couple of days after hearing about the (deceased's) death", AN was talking about his knuckles and fist hurting and was rubbing his knuckles of one hand into the palm of the other hand.
On Monday 3 February 2020, AN went to school but left with a friend, Ms Grace Glover, after first period and travelled into Batemans Bay. AN said to Glover: "Tell me if you see a purple Honda".
Later that day at 6.08pm AN was photographed at WD's house. The photographs revealed apparent injuries.
On 5 February 2020 at 2.02pm - 2.10pm, police attended WD's home where they spoke to WD and his father. Shortly after they left, at 2.15pm, WD attempted to call LM three times (at 2.15pm, 2.20pm and 2.56pm), but there was no answer. WD then attempted to call AN twice at 2.25pm but there was no answer. The next morning at 11.47am, LM called WD (duration 1 minute, 57 seconds).
AN was arrested at 6.05am on 13 February 2020. AN made the following admissions at the time of his arrest: "Dad, I'm sorry Dad … I didn't do it on purpose, it was an accident, I didn't mean it to happen, I didn't mean to Dad … I didn't want it to happen".
AN also told police at the time of his arrest that he had broken his mobile phone and thrown it away. AN's phone handset has never been recovered by police. A text message was sent by AN to WD at 3.59pm on 4 February 2020, "Should I destroy my phone". There were also internet searches conducted on AN's computer for "how to destroy a phone", "how to take apart Samsung S8", "how to erase all data Samsung". When police executed the search warrant following AN's arrest, the SIM card from that handset was recovered and, it was ascertained, the device was only used between 21 January 2020 and 6 February 2020.
Police attended LM's home at 6.55am on 13 February 2020. Admissions by LM after he was cautioned and in the presence of his father as a support person were as follows (recorded on BWV): In all truth, I knew it was gonna happen but I didn't know he was gonna kill him … I think that was an accident … [AN] just said he was gonna ... you know like ... bash him. He wasn't gonna kill him or anything.
Admissions by LM in a record of interview conducted by Detective Senior Constable Brendan Gunn and Detective Senior Constable Andrew Tyler on 13 February 2020, included: … we was just gunna like scare him, or whatever … Intimidate, I guess, is the word … [AN just] mentioned that that he was gunna meet him, and he just wanted to intimidate him, scare him, because we were all under the impression that he was a paedophile …
LM said it was nothing to do with meeting up to use drugs or to steal drugs: … it was just because [AN] is underage, and he wanted to meet up with [AN] to have sex, from what I've heard, and that he has had sex with a 14 year old in the past. That is, what was also mentioned … … the plan was to take [the deceased] down there. So we already knew that this was where [AN] was gunna be. So we waited here. And I think it was … the 4th or 3rd power line that we agreed on. And when [AN] got there and what not, so I messaged him, or, actually, I did message him when he was at Imlay Street, and he said, I think he just got picked up and what not. And then that's when he came down there. We waited about ... a couple of minutes, I guess, until we started walking down there.
LM said that AN "mentioned" the tying up. He said that at WD's house beforehand, AN: … just said that, that he was gunna bash him ... I didn't think he was gunna bash him so much that he fuckin' died, though.
In an intercepted phone call on 9 June 2020 at 3.37pm between LM (in custody) and his parents about only having two days to receive the Autopsy Report, LM said: I reckon it's going to be suffocation … but that's all good … because that means um his death was inadvertent, so it will get dropped from murder.

[28]

The Evidence at Trial of Detective Senior Sergeant Gregory Moon

Detective Senior Sergeant Moon attended the power easement of the south-western side of McNee Street, Broulee, at 10.00pm on Sunday 2 February 2020. He left the site at 2.00am and returned the next morning to take photographs. The deceased was present at the time of Detective Senior Sergeant Moon's arrival and during the course of his observations.
There was a tent over the vehicle and a tarpaulin protecting the areas where there were some furrows that were made in the sand. As mentioned, there was no protection over the area near the offside of the vehicle.
There was a small amount of rain between 5.00pm and 11.30pm on 2 February 2020. A total of 2mm of rain fell in the region. (Detective Senior Sergeant Moon's Second Statement at [27]).
In his opinion, the area of recent disturbance of the soil substrate located near the front offside portion of the vehicle incorporated many impressions which could be attributed to footwear, but there was minimal detail and they were not suitable for comparison, given the effects of the weather (Marker R).
An area of both live and dead grass (Marker S) was located between the area of recent disturbance (Marker R) and the linear marks in front of the vehicle (Marker Q). The grass located on the front of the deceased's singlet (see further below) was possibly transferred from the area represented by Marker S. (Detective Senior Sergeant Moon's First Statement at [28]).
The front portion of the jeans worn by the deceased and the exposed knee area were very soiled and consistent in appearance with the soil substrate located within the area represented by Markers R and S (as opposed to the ground where the deceased was located, being covered predominantly with plant material) (Detective Senior Sergeant Moon's First Statement at [11.3.3]).
There were numerous tyre impressions located throughout the entire area of the easement, representing many vehicle movements throughout the area (Detective Senior Sergeant Moon's First Statement at [23]). Several tyre impressions were identified entering or exiting the easement from the fire trail (Detective Senior Sergeant Moon's Second Statement at [16]). The tyre marks curved from either the north to east or east to north. The track width of the tyre impressions between Marker F and H measured approximately 1.5m. Specifications obtained from the owner's manual for a 2007 Honda Jazz indicated the Track Width for both the front and rear axle is normally between 1.44m and 1.45m. The curvature of the tyre marks and speed of the vehicle can increase the width of the tyre marks.
Detective Senior Sergeant Moon could not comment on the creation time of the marks due to degradation, the soft nature of the ground and previous weather conditions. Located about 15m to the rear of the deceased's vehicle were a series of tyre impressions which indicated a vehicle had previously turned around in that area. The tyre marks continuing in a north-east direction moved towards the location of the vehicle. The depth of the furrows indicated the vehicle creating the marks had been moving at a moderate speed, however the marks showed minimal detail and were not suitable for comparison.
Detective Senior Sergeant Moon opined that it was possible that the deceased's vehicle could have made the tyre marks, however, could not discount the marks being made by a vehicle of similar size.
The area was flat and consisted of sand-based soil which had recently been cleared (Detective Senior Sergeant Moon's First Statement at [19]). The marks in the substrate in front of the vehicle to the north were elongated and orientated towards the location of the deceased. There were two furrows that follow the same path, or line, of each other. The characteristics of the furrows were consistent with having been caused by the feet and possibly the knees of the deceased while being dragged through this area (Detective Senior Sergeant Moon's First Statement at [26]). Detective Senior Sergeant Moon opined that it was more likely that the deceased was dragged by the feet. He explained that in most circumstances when a body is moved, it is done by the shoulders and dragged through the ground. It is much more difficult to move a body if it is lying face down.
Detective Senior Sergeant Moon also opined that the continuous nature of the furrows suggested the body was not moving when it was dragged. Under most circumstances if we had someone that was moved in this process where the feet were in the ground creating the furrows I would not expect to get the continuous furrows if the person was in a position that they were still moving, yeah.
As to the circular disturbance of the soil located near the driver's side of the vehicle, a lot of sand had been overturned and the substrate was darker than the substrate in front of the vehicle itself.
Both live and dead grass was located between the circular area of disturbance and the linear marks in front of the deceased vehicle. The grass was similar in appearance to the grass located of the front area of the inner singlet worn by the deceased (Detective Senior Sergeant Moon's First Statement at [28]). Detective Senior Sergeant Moon opined that this indicated the deceased and others were in the area of circular disturbance before the deceased was dragged to his final position. When the deceased was found, his outer singlet was pulled up (Photograph 28, Tab 2, Exhibit 5). The outer singlet would have needed to be pulled up at a point for that grass to be located within the two singlets.
Detective Senior Sergeant Mood made observations of the deceased as follows: 1. He was located on an area of vegetation incorporating native grasses and bracken fernand was lying partially on his back and left side: Yes. Well, he was mainly on his back but the front, the, it was slightly turned to the left. So the face was or the head was positioned toward the left and the feet were positioned towards the ‑ the left as well, so the outside section of the left shoe and inside section of the right shoe were facing downwards. 1. The deceased was more on his back than his side. The head was turned with the left side facing down and right cheek exposed. There was a large amount of sand and soil adhering to the front part of his face. Further sand was evident within the nostrils and mouth. Bodily fluids were leaching from the nose. The fluids had the appearance of blood. 2. Below the knees and where the jeans were torn or cut up as well as the groin area were very dirty, suggesting that the deceased was prone on the ground. 3. Located around the head of the deceased was brown coloured packaging tape. The tape had been wrapped multiple times around the head. Specifically, "it was a single layer under most circumstances, but it has been wrapped around a number of times". 4. The arrangement of tape had separated at a point near the right side of the face or right ear. The section of tape originally positioned over the face was lying on the ground on the left side of the head. Detective Senior Sergeant Moon stated: … prior to removing the tape we brought the tape back over the face to see the location of the tape and it fitted with the position of the tape as it is. So what that showed to me was that the tape had fallen at the position that the body's in this position. 1. The relative position of both the head and the tape indicated the tape had been released from the face in this current orientation. The breakage of the tape could have occurred prior to the deceased being moved if the overall configuration of the tape has not substantially moved during this process (Detective Senior Sergeant Moon's Second Statement at [21.2]).
In the opinion of Detective Senior Sergeant Moon, the relative position of both the head and the tape indicated the tape had been released from the face in this current orientation. The breakage of the tape could have occurred prior to the deceased being moved, if the overall configuration of the tape had not substantially moved during this process. As the tape over the deceased's face had less adhesion and was quite easy to remove: … if that tape was broken earlier and in ‑ in the position that it had fallen already from the face and then the body was moved it would not be in that position that it is now …
On the adhesive section of the tape surrounding the void was a large transfer of sand, grass debris and a small amount of congealed fluid and sand. These transfers were heavier in concentration in areas which would have covered the front part of the face.
Detective Senior Sergeant Moon opined that the transfer of sand and grass onto the adhesive section of the tape, which originally covered the head, occurred after the face of the deceased came into contact with the sand and grass. Bodily fluids and/or sweat would need to be present on the face for the large quantity of sand and grass debris to adhere to the face and subsequently transfer onto the tape. The substances transferred on the head/face tape came from the ground located near the front offside (driver's side) portion of the vehicle, the most probable area being the region near Marker Q; whereas the soil and dirt transfer located on the front of the deceased's knees and lower legs is consistent with the area at Marker R (Detective Senior Sergeant Moon's Second Statement at [21.6]).
Detective Senior Sergeant Moon gave the following evidence as to his examination of how the tape fitted on the deceased's face: Q. So when you located the tape you were able to place it back over his face? A. We partially put it over the face, didn't want to bring it all the way. But it showed it fitted perfectly in the position it is now. Q. And if it was back over the face, what area of his face did it cover? A. It covered the whole area. So the two, the tears or the cuts, corresponded to each area. So when looking at that photograph the tear or the cut that is located on the ground to the left side of the head, that married up to the area that is located near the right ear. Q. So at some point that had completely surrounded his face? A. That's correct, yes. Q. So the two edges married up? A. Yes. Q. So when those two edges married up what part of his face was bound? A. So it was from the bottom of chin to the top part of the nose. There is a small gap in that tape that corresponded to the tip of the nose. So at some point the tip of the nose would have been exposed when the tape was fully wound around the head. Q. Can we see that in that photograph, can we see that hole? A. Yes, you can. It is located directly below the tip of the nose, and that is why that fluid or the blood has leeched from the nose and run that down that section of tape, it has gone through that hole. … Q. So if you folded that tape back over his face it would marry up with the piece of tape at the back of his head? A. Yes, that's correct.
Thus, there was a void located in the centre of the tape located on the left side of the deceased's face. When the tape was placed back across the face by Detective Senior Sergeant Moon, the nose was protruding through the void.
Detective Senior Sergeant Moon then gave the following evidence: Q. Not only just his nose, for completion both nostrils? A. Well, I can't determine if the bottom part of the tape - so the tape would have gone across the top part of the lip. Q. Yes, but that doesn't mean it was across the nostrils does it? A. It may, but the nostrils could have been slightly exposed yes. Q. You don't know do you? A. Well, I only that that hole was an area where the nostril was protruding through. Q. Thank you. Is there any reason which prevented you from taking photos of the simulation you've told us about? In other words, when you reconstructed it to come to some sort of view was there anybody there taking photos of what you in fact did? A. At the stage that we - it was only two of us at the stage when we were processing the deceased. When we went to the processing of the deceased we were both gowned up with gloves and everything on. Q. Somebody took the photos surely? A. No, what would have happened - this photograph would have been taken prior to the body being examined. Okay. The photographs taken, then we do an examination of the body. It is not always the case that we're able then to take a photograph of that. And the other reason is too, we need to also protect the tape from any further contamination at the same time. Q. As I understood what you said in chief, in your evidence in chief, you didn't place the taped area back on the face physically, did you, so it touched did you? A. We would have held it just off the tape, off the head, sorry. Q. Just off the tape - off the head. And the reason for that, surely, was to preserve both what is on his face and what's on the tape. There is no contamination at that stage through police? A. That's correct, yes. Q. But there is nothing to prevent one of you, you holding the tape and your colleague photographing what you were doing is there? A. It could have been done in hindsight, yes. Q. And that would really indicate to the Court the size of the void? A. As I just said it may have shown a better representation, but it wasn't done. So I can't--- Q. So the way you would put it then is that the nostrils as you said, would have protruded through the void? A. The nose itself protruded through the void and there was potential for the nostrils to also protrude through that void as well, yes.
The edge of the tape located on the ground to the left side of the deceased's head married up to the area located near the right ear. The pressure of the tape was less tight than the tape on the ankles and wrists; it was removed from the head relatively easily.
Located on the adhesive section of the tape surrounding the void was a large transfer of sand, grass debris and small amount of congealed fluid and sand. These transfers were heavier in concentration in areas which would have covered the front part of the deceased's face (Detective Senior Sergeant Moon's Second Statement at [21.3]).
A separate piece of tape was located across the side of his face. Further sand and grass debris was visible on the adhesive section of this tape. The transfer of substances onto the adhesive section of the tape which originally covered the head, has occurred after the face of the deceased has come into contact with the source of the substances. Due to the large quantity of debris adhering to the face and subsequent transfer onto the tape, bodily fluids such as blood and/or sweat would need to be present for this to occur. Detective Senior Sergeant Moon was questioned about this: Q. And does the fact that the tape, the sand and the dirt was around his mouth suggest anything? A. It was quite unique in that the sand and the debris on the face was located just on that area around the mouth and the nose, and it wasn't located on the cheeks, to the sides too far away, heading towards the ears. So it was indicative that there was some fluid that would be required to be there, that adherence of that debris to be present, so that could have been body fluids or potentially sweat. … Q. So if the deceased was sweating around his nose and mouth and then his nose and mouth was placed in the dirt, does that explain the adherence? A. It could be one of the reasons, yes. The other reason too is that it is not located on either side, is that that portion of the face or the head didn't come into contact with the substrate on the ground. Q. Are you saying that if somebody had fluid around their nose and mouth they were more likely to pick up the sand and the dirt if their face had been in contact with the dirt? A. Yes. It appeared that, you know, it was - if the sand was dry at the time that the contact would come. You would need some sort of moisture there for the adherence to occur. It is like being, say an example, down at the beach. If you put your feet in sand that is dry, you could get some sand on there but it doesn't readily stay on the skin. If your hand is wet or you come out of the water and you put your hand in the sand, you get large amounts of debris or sand on your hands. Q. So the presence of dirt on the inside of the tape suggests that there was dirt on his face prior to the tape being placed over his mouth? A. Yes, that's correct. There is large amounts of sand and that on that tape. And it is also, when you look at that photograph, you can see that the actual sand stops coming towards that area of where the, the tear. So there is a small portion where there is not a lot of sand. So that is very comparative to looking at the sand that is located on the face.
The substances located on the deceased's face and on the tape were determined to have come from the ground located near the front offside (driver's) side of the vehicle (Detective Senior Sergeant Moon's Second Statement at [21.4]-[21.6]). Detective Senior Sergeant Moon formed this opinion based on the following facts: (a) Grass debris located on the stomach of the deceased corresponded to the dead grass located between Markers Q and R (Detective Senior Sergeant Moon's Second Statement at [21.6.1]). (b) The commencement of the elongated furrows leading from this area to the final location of the deceased were consistent with being caused by the feet of the deceased while being dragged through this area (Detective Senior Sergeant Moon's Second Statement at [21.6.2]). (c) The soil and dirt transfer located on the front portion of the knees and lower legs is consistent with the area represented by Marker R (Detective Senior Sergeant Moon's Second Statement at [21.6.3]).
The tape located on the deceased is a polypropylene type packaging tape, brand unknown. The visual effects of the tape when broken, torn, or cut, differ depending on the method used (Detective Senior Sergeant Moon's Second Statement at [24.2]).
Detective Senior Sergeant Moon explained that the tape was difficult to actually break: But there is always that point where it will fail. What we found if it went towards a string‑like effect, it was quite difficult to actually break. If it just stretched and became skinnier through that process, it actually did get to a point where it just failed, and it normally failed at the smallest point of the stretching.
The edges of the tape at the point of separation were irregular and jagged. There were no signs of the tape stretching. It would be more likely that the tape has split by the process involving the outer edge of each section of tape initially being split and subsequently torn (Detective Senior Sergeant Moon's Second Statement at [24.3.1]).

[29]

Tape around ankles and wrists

The tape located around the deceased's ankles was tightly secured (Detective Senior Sergeant Moon's Second Statement at [22.1]). The tape had been wrapped numerous times around the ankles with the end section showing evidence of extreme stretching creating a skinny thread-like piece of the tape (on the left ankle). This is consistent with the tape being pulled to breaking point. Detective Senior Sergeant Moon cut off the tape located around the lower legs prior to collection. When cutting the tape, he looked to an area where the ends of the tape were not located, because that is the area where the best forensic evidence is found: Q. Did it appear that the tape that had been used to bind the deceased had been cut? A. I can't rule that out. When I did a number of the tests with that similar type of tape, when it tore it tore, the actual breakage was a little bit irregular and showed, sort of, not rough edges but it tore in an irregular fashion. Whereas when you cut it, it was quite straight unless you moved the device or scissors used to cut it. So the area on the hands showed that sort of irregular tearing. So I was more inclined to believe it was actually torn in that process.
Located on the adhesive section of the tape was a small amount of sand and grass material. The distribution of this material was more pronounced on the exposed section between the legs that had the thread-like appearance to it (Detective Senior Sergeant Moon's Second Statement at [22.2]).
The wrists of the deceased were located across each other and positioned behind his back. The body was rolled over to photograph the bindings to the wrist (photograph 52, Tab17, Exh 4). Tape secured the wrists tightly with many returns of tape wrapped around his lower arms. His hands were extremely dirty. Many sections of the tape showed evidence of stretching. Detective Senior Sergeant Moon cut off the tape located around wrists prior to collection.
A small amount of sand was located on the adhesive section of the tape. A substantial amount of dried grass was also located on these sections of the tape (Detective Senior Sergeant Moon's Second Statement at [23.2]).

[30]

The Evidence of Detective Senior Constable Darren Simpson

Detective Senior Constable Simpson, attached to the Homicide Squad State Crime Command, gave oral evidence on 9 May 2022. He attended the crime scene on 3 February 2020 after the deceased's body had been removed.
CCTV footage captured the deceased's car travelling in Broulee. Detective Senior Constable Simpson drove the route that the CCTV footage indicated the car had travelled. The recording of this drive was played to the court. Some of the CCTV footage was included within the video, showing the deceased's vehicle. The car drove through the bush and turned left onto the power line easement. The video showed the GPS location from LM's phone, near the fourth power pole. (The deceased and the deceased's vehicle were located near the third power pole).
The recording of Mr Chapman's interview was played during Senior Constable Simpson's evidence.
The Court was played a video of Detective Senior Constable Simpson walking the reconstructed route of the accused, using the GPS coordinates from LM's phone. The video showed Detective Senior Constable Simpson walking at a normal and steady walking pace (with occasional acceleration of the playing of the video), pausing on multiple occasions to point out various landmarks along the route. He stopped at: 1. The fourth power pole area, briefly, and walked towards where the deceased's vehicle was located. 2. The area where the deceased's vehicle was located and where the body was found. 3. On the bush track between the crime scene and the fire trail, to tie a white marker on a tree branch. 4. The fire trial where Mr Chapman witnessed three males come out of the bushland, walk towards the gate, see Mr Chapman and turn and walk towards the beach. (Detective Senior Constable Simpson re-enacts these steps slowly, explaining his movements to the camera). 5. The beach, he pointed back towards the fire trail where Mr Chapman was cycling. 6. The beach, he pointed out the lookout and the skatepark to the camera.
In the top right-hand corner of the screen, an aerial view of the area was shown, and the route was mapped onto that image, based on the GPS data. Where landmarks such as the skatepark were used for reference, images of these places were shown on the top right-hand corner of the screen. A car was parked where the deceased's vehicle was located. Detective Senior Constable Simpson followed the power line easement per the GPS data, through the bush track to where the accused were seen by Mr Chapman, down to the beach and back to WD's home.
The total walk time from the crime scene was 33 minutes and 40 seconds. Detective Senior Constable Simpson was walking slowly.
The video also showed Detective Senior Constable Simpson walking from WD's home to the fourth power pole on the power pole easement near Grant Street, per the GPS data from LM's phone. Detective Senior Constable Simpson walked to the GPS point about 5m into the bushland near the fourth power pole (where the police suggested that LM was hiding).
The video also showed Detective Senior Constable Simpson walking to the intersection at the end of Massey Street where a witness saw two males turn left towards the power line easement and one male turn right towards the tennis courts at Imlay Street.
Detective Senior Constable Simpson identified a number of photographs which depicted: 1. The deceased at Aldi. 2. The deceased at the crime scene, wearing two blue singlets, with the outer singlet lifted up. 3. A photograph of the deceased after his body was moved onto a blue tarpaulin. 4. The tape that was around the head of the deceased, flattened out, with red arrows pointing to bloodstaining. 5. Photographs of the front and back of the deceased hands prior to autopsy. 6. The Aldi receipts showing what the deceased bought at Batemans Bay. 7. The deceased prior to autopsy, showing in particular the dirt on his knees. 8. The lower singlet that has a rip in it. 9. The items in the rear of the deceased's car (bedding). 10. The items in the passenger side cabin of the vehicle (an esky, more bedding). 11. The inside of a blue Aldi cooler bag found behind the driver's seat with drug paraphernalia in it. 12. The plastic "Sistema" container from the ALDI cooler bag containing two syringes that contain liquid (no testing was performed on these syringes). 13. The tobacco packet from the ALDI cooler bag which appears to also contain cannabis. 14. The plastic container from the ALDI cooler bag. 15. The contents of the ALDI cooler bag. 16. The food contents of the ALDI cooler bag in the rear of the car which accord with the items on the ALDI receipt.
There were 9.7, 0.6 and 6.5g of cannabis located in the car. There was a plastic bag which contained codeine and paracetamol. The second resealable bag contained 0.22g of methylamphetamine.
The deceased's mobile phone was used consistently for probably a 48-hour period on the evening prior to him arriving in Bateman's Bay. Detective Senior Constable Simpson suggested this indicated the deceased was not sleeping during that time.

[31]

The Statement of Chantelle Walsh

Chantelle Walsh ("Ms Walsh") gave a statement on 4 March 2020. She was 21 years of age at the time. She has lived in the Canberra area since she was about six. She was not required for cross-examination.
Ms Walsh met the deceased in 2018 when they were both high on drugs and they became good friends. She stated that they did a lot of drugs together, mainly smoking cannabis and "crystal meth". Ms Walsh and the deceased were never intimate, and she was aware that he was working in real estate, that he had been married for most of his life and had adult children. He spoke highly of his family and his ex-wife. Ms Walsh stated that when she met the deceased, he was also openly gay, and he only ever talked about male lovers with her. She never heard him talk about having sex with young boys.
Ms Walsh described the deceased as a heavy ice and weed user and a happy and kind person who always cared for others, ensuring that everyone had eaten and showered when they were on benders with him. She described him as like a "caretaker", "just a happy guy who was enjoying life being openly gay after he suppressed it for so long".
Ms Walsh stated that the deceased dealt a small amount of drugs, mainly to his friends who he trusted. She never saw him with large amounts of hard drugs and never knew him to be in trouble as a result of his drug dealing.
Ms Walsh explained that, at 4.00am on Friday 31 January 2020, the deceased picked her up from a bar (Kokomo's) and went back to their friend Aisep's house. Aisep (whose name was spelt in a number of ways in the evidence) was not there at first. Ms Walsh and the deceased smoked ice and Aisep arrived home at about 10am. Ms Walsh stated that the deceased left about an hour after Aisep returned home to buy some liquid GHB at $10 for 1mg.
The deceased returned between 2.00pm and 3.00pm that afternoon and Ms Walsh, Aisep and the deceased smoked ice for a few hours. During this time, the deceased and Aisep left and came back a few times. At 7.00pm or 8.00pm that evening, the deceased told Ms Walsh that he had met someone on Grindr who lived down the South Coast, who he wanted to drive and meet up with.
Ms Walsh asked the deceased: Why would you go all the way down there in a borrowed car for a Grindr hookup? The deceased said: Because he's hot.
Ms Walsh stated that she was high on drugs when the deceased was telling her this but to the best of her ability, she remembered him telling her he was going to Batemans Bay for two nights and asked her if she had a tent that he could borrow because they would be camping for the first night. He said they were going to get a hotel for the second night.
Ms Walsh said that the deceased had asked her to come with him and that she got the feeling he was worried about something happening down there, although he never expressed he thought as such. He had never asked her to go with him on a Grindr hook-up before. Ms Walsh remembered the name of the man he was meeting to be either 'Josh', 'Jesh' or 'Jake.' Ms Walsh stayed at Aisep's apartment on Friday and Saturday night and agreed with the deceased that he would drop her home so they could both sleep and then they would drive down to the South Coast together sometime on Sunday.
At 2.00am on Sunday morning, the deceased dropped Ms Walsh home in Aisep's Honda Jazz. Ms Walsh stated that the deceased had already packed the car for his trip, including bedding, a bag full of sex toys and a "bubbler", which is a type of ice pipe. Ms Walsh stated that this suggested he was planning on smoking a lot of ice, as it is an expensive and fragile item.
Ms Walsh remembered the deceased saying something about a "guy having to sneak out of his house and sneak back in" and Batemans Bay High School was mentioned. Ms Walsh stated that this made her wonder whether the deceased was meeting someone younger, however, she had never heard of him doing this before.
At 9.00am on Sunday 2 February, Ms Walsh was texting the deceased, who informed her he had already left for Batemans Bay without her. She said they kept texting throughout the day; he sounded busy, but she never sensed anything was wrong. Ms Walsh did not know what quantity of drugs the deceased had on him when he drove down the coast, only that he had $10 with him.
At 12.00 or 1pm, Ms Walsh texted the deceased to remind him to shower, eat, and take care of himself before driving home to Canberra, because he had been on a bender for so long. The deceased replied at 2.05pm, saying something like "I don't know when I'm coming back. I'll let you know".
At about 8.00pm, Aisep messaged Ms Walsh on Whatsapp to inform her that there were police officers at the house asking questions about the car and that someone had died. Ms Walsh stated she assumed the deceased had been involved in a car crash. On Monday morning, Ms Walsh read a report online about a body being found in Broulee and suspected it could be the deceased. Ms Walsh stated that the jeans the deceased was wearing were hers and that the deceased had her "Bose" wireless ear buds with him when he left.

[32]

The Autopsy Report

The Autopsy Report was structured into two main sections, "Opinion", including a report summary consisting of a History, Post-mortem Findings, Comments and a conclusion, "Summary of significant pathological findings" and "Autopsy Findings". The direct cause of death was found to be craniofacial trauma with airway obstruction, with no antecedent causes.
The summary of significant pathological findings was as follows: 1. ADULT MALE (BMI 23.2 kg/m2) 2. BINDING: 1. Packing tape loosely around mouth (scene photos). 2. Packing tape binding ankles and wrists behind back (scene photos). 3. Impression on skin above left ankle consistent with binding. 1. SAND AND DEBRIS AROUND MOUTH AND WITHIN NASAL PASSAGES. SAND COVERING THINGS AND KNEES. 2. CRANIOFACIAL TRAUMA 1. Comminuted fracture nasal bones 2. Large upper frenulum laceration and contusion 3. Bilateral infraorbital contusions and lacerations 4. Abrasions, contusions, and lacerations of: 1. Right and left forehead. 2. Right and left cheeks. 3. Perioral region (external and internal). 4. Left ear. 1. Two similar well demarcated longitudinal abrasions. Each comprising two abrasions with an area of intact skin: 1. Left forehead. 2. Right forehead. 1. Extensive right and left temporalis muscle contusions. 2. Subgaleal contusions: 1. Left temporal (large). 2. Right occipital and parietal. 1. PETECHIAE AND EYE INJURIES: 1. Faint petechiae all eyelids. 2. Right scleral petechiae. 3. Left inferior eyelid confluent haemorrhage. 4. Bilateral infraorbital contusions and lacerations (as per 4c above). 1. NECK INJURIES 1. Right side neck below angle of the jaw, two faint horizontal abrasions separated by a pale area. No underlying injury on neck dissection. 2. Left side neck below angle of jaw, a well-defined diagonal abrasion 8 x 1.5 mm. 3. Left side neck, a contusion 10 x 3 mm, with a possible punctum. 4. Anterior Neck Dissection: 1. Deep to (6c) subcutaneous contusion. 2. Deep to (6c) contusion of the platysma muscle. 3. Deep to (6c) contusion of the left sternocleidomastoid body. 4. Laryngeal structures macroscopically unremarkable. 5. Microscopic haemorrhage surrounding left and right superior thyroid horns. No injury to cartilage. 1. Posterior neck dissection unremarkable. 1. SCRAPE ABRASIONS: 1. Forehead. 2. Left shoulder (as below). 3. Left knee (as below). 1. OTHER INJURIES: 1. Left anterior shoulder. Scrape abrasions with underlying contusion of deltoid muscle. 2. Left forearm: faint contusion of skin with underlying well defined, large subcutaneous and intramuscular contusion. 3. Knees: Scrape abrasions. Large contusion of left patella tendon. 1. HEART UNREMARKABLE (347 g). 2. BRAIN UNREMARKABLE. 3. TOXICOLOGY: 1. Blood: 1. Methylamphetamine and Amphetamine Present 2. Cannabis Present 3. Alcohol Not detected 4. 4-Hydroxybutanoic acid Present 1. Urine: 1. 4-Hydroxybutanoic acid Not detected 1. WHOLE BODY POSTMORTEM CT SCAN: 1. Minimally displaced comminuted bilateral nasal bone fracture. 2. Significant left inferior and left orbital margin haematoma. 3. Patent nasal passages.
There are a number of passages of the Autopsy Report that attracted particular attention.
Under "History", Dr I'Ons stated that he considered various sources, including police records, which stated that: … the deceased was found lying in scrub approximately 300 metres south of the intersection of McNee and Grant Street, Broulee NSW, bound with packing tape around the ankles and with his wrists bound behind his back. Packing tape was also present across the mouth. (emphasis added).
The duct tape used to bind the deceased was removed by police at the scene.
Under "Post-mortem" findings, Dr I'Ons opined as follows: 1. There were widespread and significant blunt force injuries to the face and forehead. On the skin there were numerous abrasions and contusions of the forehead, cheeks, around the mouth and of the lobe and behind the left ear. 2. The nasal bones were fractured, not a simple displaced fracture but multiple pieces broken, an injury that is often associated with epistaxis (bleeding within the nasal). 3. Within the mouth there was a large contusion and laceration of the upper frenulum with a further contusion of the left buccal mucosa at the corner of the mouth. 4. There were large contusions within the left and right temporalis muscles (left greater than right). There were longitudinal scrape abrasions of the forehead which were also present on the left shoulder and left knee. 5. Underlying the longitudinal scrape abrasions on the left shoulder was a contusion of the left deltoid muscle. Below a faint contusion on the skin of the left forearm were two large well defined contusions involving the fatty tissue and muscle. Underlying the longitudinal scrape abrasions on the skin of the left knee was a contusion within the patella tendon.
In the "Comments" section of the Autopsy Report Summary, Dr I'Ons opined: 1. The deceased was found supine bound and gagged with the packing tape. The packing tape was removed at the scene. 2. Debris was present on the singlet closest to the skin, on the anterior thighs of the jeans, on the knees and face. Sand was within the nostrils, around the mouth and within the mouth. Scrape abrasions were present on the forehead, left shoulder and knees. These findings suggest a prone position. The craniofacial injuries may have occurred in a prone position or by direct trauma to the face. 3. Multiple craniofacial injuries were present. The injuries included widespread abrasions, contusions, lacerations and a fractured nose (bilateral, non-displaced and comminuted). The distribution indicated multiple blunt force injuries to the sides of the head, forehead, cheeks, nose, mouth, eyes and left ear, the combined effects of which may have resulted in a reduced level of consciousness or unconsciousness and an inability to self-protect the airway. 4. The apparent obstruction of the mouth with packing tape, the dirt around and within the mouth, the facial injuries and the prone position of the deceased raises the possibility of suffocation and/or positional asphyxia. 5. Positional asphyxia was defined as a type of asphyxia where the position of an individual compromises their ability to breathe. These individuals cannot self-rescue or escape from the position that they find themselves in. 6. Suffocation was defined as an external obstruction of the airways. 7. Two bases were identified as 'suggesting' suffocation: 1. Tape is said to have covered the mouth and sand was observed within the nasal airways. 2. The fine petechiae in the conjunctiva and sclera may support this conclusion. Dr I'Ons stated that petechiae in the eyes may be caused by raised venous pressure causing leakage of blood in the small vessels of the eye. He further stated: They are generally florid in conditions such as neck compression and lacking in most cases of suffocation. However, it has been observed that fine petechiae are sometimes found in suffocation of elderly victims. A possible explanation is the increased cephalic venous pressure of the Valsalva effect caused by struggling and screaming against an obstructed upper airway. This, together with increased cardiac output, elevated blood pressure, and the fragile vasculature and inelastic surrounding connective tissue of older persons, may lead to facial and conjunctival microvascular rupture. Petechiae may also be caused by direct blunt force trauma. (footnotes omitted) 1. The left side neck injuries were relatively minor. 2. Injuries to the left arm were in a location "seen with but not exclusive to defensive injuries". 3. Toxicology: 1. 4-Hydroxybutanoic Acid (Gamma-Hydroxybutyrate, GHB) was present in the blood (13 mg/L) and was not detected in the urine. GHB is generally present at concentrations of less than 1 mg/L in the blood or urine of living persons but is commonly found at levels of 4-25 mg/L in fluoride preserved, refrigerated, post-mortem blood specimens where death was unrelated to GHB. 2. Amphetamines stimulate the central nervous system causing persons to become hyperactive and more aroused. Blood pressure and heart rate are also increased. This stimulation lasts as long as the drug is present in a person's body, with larger effects more intense soon after administration. However, the value of post-mortem methamphetamine levels is questionable because both tolerance and post-mortem redistribution occur. Studies have shown no difference between methamphetamine levels in cases where methamphetamine toxicity was considered to be the cause of death and in cases where methamphetamine was measured in the blood but where there was another obvious cause of death such as traumatic injuries. Deaths from methamphetamine may therefore be associated with very low or very high post-mortem blood concentrations. Usual doses of methamphetamine range from quite low (less than 20 mg) to quite high (up to 200 mg). Depending on tolerance, higher doses may produce high heart rates and blood pressure, excessive hyperactivity, and personality changes. Peak concentrations of methamphetamine following 30 mg oral doses are known to peak at about 0.1 mg/L with a possible range of 0.05-0.3 mg/L (the deceased had a post-mortem level of 0.42 mg/L). Higher concentrations are expected with higher doses. Severe reactions to methamphetamine can occur. These include agitation, fever, aggression, and violence and can rapidly lead to very high body temperatures, with elevated heart rate and blood pressure. Long term damage to the heart can lead to increased morbidity and mortality. Irregular heart rate (arrhythmia) is possible at high concentrations particularly on exertion or in times of stress. 3. Excessive stimulation through violent behaviour, excessive exertion or stress will also release noradrenaline in the heart and also adrenaline from the adrenal glands. Adrenaline is also a catecholamine related closely to noradrenaline. The combined effects of these situations and the presence of amphetamines can lead to arrhythmias and cardiac arrest. 4. However, the deceased's heart and coronary arteries were unremarkable, there was no evidence of acute or chronic disease and no contraction band necrosis. There was no evidence of acute of chronic disease. 5. Marijuana is generally considered a drug of low toxicity but may cause postural hypotension, tachycardia, and catecholamine mediated arrhythmia, particularly but not exclusively in individuals with cardiac disorder.

[36]

Dr I'Ons

I agree with the Crown that Dr I'Ons was logical in his thinking and his reasoning was clearly explained to the Court. He was, in parts of his evidence, reasonable in his concessions. For example, he acknowledged the difficulties in the interpretation of petechiae. He was open to reviewing his opinions, exampled by the issue of the ß-APP staining where he acknowledged, after reading the Al-Sarraj Paper, that the accepted scientific view that ß-APP staining is seen where the survival time of the deceased is more than 30 minutes may not be fully correct.
Senior counsel for AN made a number of submissions regarding the reliability of Dr I'Ons' opinions in the Autopsy Report: 1. When Dr I'Ons prepared his Autopsy Report, his understanding was that the packing tape covered the mouth of the deceased when he was found and that one of the police officers removed it at the scene. That is reflected in his reports and his initial oral evidence. The report at page 7 stated, "the packing tape was loosely around the mouth". The Autopsy Report stated at page 4 that, "The deceased was found supine on his back bound and gagged with packing tape. The packing tape was removed at the scene". The photographs of the deceased show that the packing tape did not cover his mouth and it had already been removed before Mr Devlin arrived at the scene. 2. When the correct information was given to Dr I'Ons by the defence, that, in fact, when the body was found there was no packing tape over the mouth, and the police did not remove the packing tape from the mouth, he did not recognise his error but instead drastically changed his evidence and stated that he was only talking about the packing tape being removed off the head entirely and not in relation to the mouth. Dr I'Ons refused to recognise that the information he had been provided and relied upon for the Autopsy Report was incorrect. 3. Dr I'Ons provided a new theory in his oral evidence that the sand may have acted like a cushion, forming a barrier, and explaining why it was therefore not necessary for sand or debris to be found in the airways. This theory was not provided in the Autopsy Report. It was not supported in any written material and was strongly rejected by Professor Duflou. The theory was developed by Dr I'Ons in an attempt to deal with the critical issue of the airways being patent, or free of debris or foreign objects. 4. Dr I'Ons also gave evidence that he believed the deceased had packing tape over his mouth while he was in a prone position and experienced airway obstruction. Senior counsel for AN submitted that it is impossible for both those facts to be true at the same time. 5. The Crown faces a major problem with reliability of the Autopsy Report prepared by Dr I'Ons.
There is substance to Mr Steirn's submissions in this respect.
I agree that the observation made by Dr I'Ons in the first heading under the entry "Comments" in the Autopsy Paper illustrates that his understanding was that the deceased was "found" in a supine position "bound and gagged" with packing tape. That conclusion conforms with the information provided to Dr I'Ons that the deceased was found not only bound with packing tape around his ankles and his wrists but "packing tape … present across the mouth". These aspects of the Autopsy Report are only consistent, in my view, with Dr I'Ons forming opinions in the Autopsy Report predicated upon the body of the deceased having been discovered with, at the least, packing tape being situated across the mouth of the deceased (the word "gagged" may denote a more strenuous covering of the mouth), whilst lying in a supine position.
When presented with information which was contrary to those foundational premises in the Autopsy Report, Dr I'Ons' response appeared to be an avoidance of the recognition of the error in the report. Dr I'Ons flatly disagreed with the proposition that, if police did not remove the packing tape from the mouth of the deceased (as the photograph taken by Mr Devlin recorded), meaning that the tape was not across the mouth of the deceased when he was found, then Dr I'Ons' original opinion was not correct, insofar as the packing tape would not have obstructed the deceased's airways.
Dr I'Ons then stated he wished to "run you back" in the cross-examination. He pointed to the sentence in his "Comments" (para (1)), that the packing tape was removed at the scene by police. However, this answer did not engage with the cross-examiner who was challenging Dr I'Ons' observation that the deceased was gagged when found - a proposition then seemingly confirmed by Dr I'Ons, who stated, "I'm just saying those gags and the bindings were entirely removed by the police at the scene".
When dealing with these issues, Dr I'Ons did state that he wished to "step back a little" and "be a little cautious" about exactly what the packing tape was 'doing' at the scene. However, he would only concede, in that respect, as follows: I was not trying to say that the packing tape was tightly bound around the face and mouth as it was around his arms, his wrists and his feet.
This concession did not deal with the problem confronting Dr I'Ons with respect to his autopsy opinions, but did lead to another part of his evidence which was unsatisfactory, namely, his reliance upon a section of the Autopsy Report stating that the tape was positioned loosely around the mouth of the deceased, apparently in order to explain that he had not concluded the deceased was gagged when found (noting that Dr I'Ons accepted that was a distinction between gagging and the packing tape being loosely positioned on the mouth of the deceased).
Dr I'Ons referred to the entry of the report under the heading "Binding", in which it was stated "packing tape loosely around the mouth (scene photos)" to say that he was not trying to suggest the packing tape "was tightly bound around the face and mouth". However, if that expression was intended to suggest that Dr I'Ons had, by that entry, recognised, in preparing the Autopsy Report, that the packing tape was not across the mouth of the deceased, it represented, at the least, an unusual choice of language to describe the photograph Dr I'Ons had in his possession (the photograph at Tab 19 of Exhibit 4). He returned to that opinion in cross-examination to say, "it's loosely obstructing".
The photograph which was available at the time of the autopsy showed one part of the packing tape (the larger piece) completely away from the mouth of the deceased and lying on the ground and the other part (the smaller piece) lying across the deceased's face at a 45-degree angle, from his ear to his forehead. No part of the tape in the photograph covered the mouth or nose of the deceased. By the time the deceased was found, the packing tape had been torn or separated, leaving the tape not joined and entirely free of the deceased's mouth.
My observations of the Autopsy Report and Dr I'Ons' evidence in this respect do have a further significance. One of the causal factors relied upon by Dr I'Ons to establish a possibility of suffocation and or positional asphyxia was, as stated in the "Comments" section of the Autopsy Report, the "apparent obstruction of the mouth [of the deceased] with packing tape". Whilst Dr I'Ons used the expression "apparent" and in evidence suggested the 'gag' was only one of the factors really relied upon in finding a cause of death, it appears that he was, in this part of his opinion, referring to his earlier observations about the deceased being bound and gagged (in the same part of the Autopsy Report), and the information that had been provided to him by police that the packing tape was across the mouth of the deceased.
Those issues as to the Autopsy Report and Dr I'Ons' evidence in this regard have importance because of its relationship to the question of whether, at some point after 3.33pm on the day of the incident, the packing tape was placed across the face of the deceased in such a way as to occlude airflow into the mouth (as noted previously, there was a cut out section of the tape commensurate with the locating of the deceased's nose) and, if the tape was so affixed, whether the tape was removed before the departure of the accused and at a time the deceased was alive and capable of breathing through his mouth.
There is one further matter requiring attention. Mr Steirn also referred to Dr I'Ons' evidence as to the prospect of the deceased being suffocated by sand acting like a cushion and forming a barrier to air reaching to deceased. I agree with Mr Steirn that this theory was not raised in the Autopsy Report. I also agree that, in that respect, it is a new theory. Unconvincingly, Dr I'Ons stated he did not need to say anything specifically about that theory, as the theory was covered by his statement that the deceased's face was "covered in sand and debris". This was notwithstanding the opinion being proffered, in my view, to explain an apparent difficulty with the suffocation hypothesis, namely, that the deceased's airways were patent.

[37]

Professor Duflou

The Crown criticised Professor Duflou's evidence as follows: 1. He appeared unwilling to accept reasonable propositions, particularly on points which were important to his case theory. 2. He argued with the questioner at times, and he made minor points that were insignificant, such as the present of ant bites on the deceased.
Professor Duflou did accept in his report that the injuries to the deceased were consistent with multiple blows or "moderate" force having been applied to the body of the deceased up to death. He found that the extent and severity of those injuries was unlikely to have caused death. This was particularly so in the absence of significant head injury or blood loss. He also opined there was no indication of "significant aspiration while [the deceased was] unconscious".
As mentioned, Professor Duflou's stated object was to establish that "things look more severe than they are". He appeared to be searching for photographic material which demonstrated that opinion. This may be reasonably seen as parrying or unnecessarily arguing with the cross-examiner over less significant issues such as ant bites and about injuries that were plainly substantial, even though Professor Duflou couched his opinions in equivocal terms of what the Court was "probably seeing" or that the ant abrasions "could have" made the injuries look worse.
My observations of his evidence were that he occasionally sought to downplay the severity of the deceased's injuries, consistently with his case theory, although I accept that Professor Duflou was concerned to give a medical opinion about the injuries that might balance the impression caused by photographic evidence of the deceased with various material on his face.
However, in contrast, my observations of Professor Duflou's evidence with respect to the other issues appeared measured and considered, if not scholarly, in areas where, as I have earlier mentioned, his eminence in the field of forensic pathology was well recognised as a result of his research and studies into a field. I refer in that respect to his evidence on axonal injury and methamphetamine toxicity. As Professor McGregor stated in his evidence: So I am very happy to comment in terms of being an academic pharmacologist with a special interest in methamphetamine and cannabinoids but I think particularly in Professor Duflou you have a leading world expert in terms of forensic pathology and methamphetamine, and I would certainly defer to his judgment on more technical matters relating to autopsy and cause of death.

[41]

General

The experts disagreed about some aspects of the injuries sustained by the deceased, particularly the severity of the craniofacial trauma.
Some initial observations may be made in that respect before returning to the particular injuries by reference to the topics under the heading "Summary of significant pathological findings" in the Autopsy Report.
Dr I'Ons noted the multifocality and varying severity of the injuries, stating: I want people to note the multifocality of the injuries, that the injuries are all over the face and head; they are simply not from one point of view the face or side of the head or just the back of the head, they are injuries all around the head. They dominate in the front; they are very significant on the sides and they are also significant posteriorly. So in other words, it indicates the multifocality of the blows that were delivered to [the deceased].
Professor Duflou occasionally gave explanations of the various injuries suffered by the deceased which contested the opinion of Dr I'Ons with respect to the magnitude, extent, or severity of the injury. . As mentioned, his approach in this area occasionally gave the impression of Professor Duflou defending a case theory.
Dr I'Ons did not attribute craniofacial injuries as the sole cause of death. He hypothesised in the Autopsy Report that the combined effects of blunt force injuries may have resulted in bleeding into the mouth and nose of the deceased and had had an effect in terms of his need for oxygen and in producing a reduction in the level of consciousness, or unconsciousness and "an inability to self protect the airway". This opinion was prior to the later findings by Associate Professor Buckland as to axonal injury, to which I will turn to next. He found other factors that raised the possibility of suffocation and/or positional asphyxiation, such as covering the mouth with packing tape, dirt around and within "the mouth", facial injuries including a fractured nose and the deceased being in a prone position.
In Professor Duflou's report, he opined that, although craniofacial trauma was present, he doubted that it was a cause of death, "in part", although it may be considered a possible cause of death or, alternatively, a possible contributor to death. He expanded his view in cross-examination: The word 'severe', 'reasonably severe', 'significant', etc, was used on multiple occasions and I agree that they are certainly not trivial injuries but in terms of their severity and specifically in terms of severity causing or contributing to death, I think that is something that I should point out isn't necessarily the case. So specifically a head injury is in general not life threatening unless there is either very significant loss of blood or there is significant inhalation of blood, or there is significant damage to the integrity of the cranium, in other words, the skull itself, or there is extensive damage to the brain. Now, in reality none of these were identified in this case.
This issue will require further exploration after further reviewing the subjects examined during concurrent evidence.

[43]

Ant Abrasions

It is useful to commence with the following extracts from the evidence of Professor Duflou: STEIRN: I take you to D which is made up of a number of separate issues. I'll deal with them one at a time. It talks about abrasions, contusions and lacerations of, the first one is the right and left forehead. WITNESS DUFLOU: Yes. Well, I suppose those ones are to a certain extent different to the apparent patterned abrasions described by Dr I'Ons but there are a number of relatively small in my view quite minor abrasions and grazes on the forehead. STEIRN: Could you go to-- WITNESS DUFLOU: Sorry, just of the exhibits in relation to the post mortem, the exhibit. The exhibit that went through Dr I'Ons and the first page of it is, I think, the one of relevance. STEIRN: Where do we find that photo doctor? WITNESS DUFLOU: Was that Exhibit B. I'm not quite sure. STEIRN: Tab 6 in folder 2. STEIRN: You have this photograph, do you not? WITNESS DUFLOU: Yes. That's the photograph that I'm referring to. STEIRN: What's your comment on that WITNESS DUFLOU: I think that shows to me quite minor grazes on the forehead. STEIRN: Is there any other evidence of injury or abrasion post mortem on the face? WITNESS DUFLOU: Well, I must say I have to wonder if one of the abrasions on the right cheek near the corner of the mouth is in fact an ant abrasion. STEIRN: Would you explain what you understand an ant abrasion to be? WITNESS DUFLOU: An ant abrasion is an injury caused invariably but certainly there would be situations where there wouldn't be, as a result of ants releasing formic acid on to the surface of the skin, and they cause quite characteristic types of grazes, and the problem with them is that it's easy to confuse an ordinary abrasion, in other words caused during life, with a post mortem 'ant' abrasion, in effect more a chemical burn than a true abrasion. Now, in terms of the typical example of that, they are very much seen on the two photographs in the exhibit that went up with my evidence which I think was Exhibit C. That's photographs 4 and 5, and on the arm there you can see quite extensive abrasion but that has, in my view, quite characteristic post mortem appearance as a result of, in this case, probably ants. The one thing that is very obvious in the scene photographs is that there are many ants on the body, so it's not at all surprising if there are ant abrasions as a result of that. On the face, they are not absolutely definite and I think what we're probably seeing is a combination of ant abrasion on top of pre existing abrasion. So, in other words, an abrasion caused during life that is then modified by arthropodic activity after death. But I think the important aspect of that is that ant abrasions can really make things look a lot more severe unless you are very careful about separating the two.
There was dispute between the experts as to whether there were ant abrasions present on the right side of the deceased's mouth.
Dr I'Ons agreed that there were ant predations on the deceased's left upper arm (as shown in the photograph on page 4 of Exhibit C). However, he disagreed about the right side of the mouth (Tab 6 of Exhibit 5).
Both experts agreed that ant abrasions produce on the skin parchment-like, tan, leathery, yellowy, orangey type grazes. Dr I'Ons explained that ant predations are well demarcated while typical abrasions are indistinct, they "blur to normality". He stated that the photograph of the left arm "beautifully" demonstrates an ant abrasion, whereas the abrasions on the face are completely different; they do not have the tan, leathery, parchment-like appearance and they are not clearly demarcated.
Dr I'Ons disagreed that the area to the right side of the mouth was an ant predation on the grounds that it was redder, more angry-looking and had a gradual change from injury to normal skin, not a clear line. Thus, he did not believe there was any evidence of ant predation in the photos of the face. Like I said yesterday it doesn't have a tannery appearance. It doesn't have that welt in out of order. As you see with the upper arm one which is a classic well demarcated, well like cut out almost like a cookie cutter parchment like injuries which lack that red florid reaction which you see with a living person. Because the person is dead, there is no blood going to that injury site and so it is post-mortem. When you are alive blood goes to the site and so it is [red].
Professor Duflou explained that post-mortem ant abrasions, a result of ants releasing formic acid on to the surface of the skin, are easy to confuse with ordinary abrasions. He opined that the abrasions on the right cheek near the corner of the mouth could be ant abrasions, as well as on the left upper arm. He cautioned that post-mortem ant activity can make ante-mortem ant abrasions a lot more severe.
In my view, and notwithstanding Professor Duflou suggesting that ants were visible on the face of the deceased in photographic evidence, when seen in the light of the description of ant abrasions given by both experts and the photographs referable to this issue in Tab 6 of Exhibit 5, and Exhibit C, the position of Dr I'Ons must be preferred, particularly as it clearly assists in distinguishing the patches of abrasions on the deceased's arm from those on the right side of the face in the region of the mouth.

[54]

Issue 2 - Axonal Injury

During the autopsy, Dr I'Ons undertook a microscopic examination of brain tissues. His finding in the Autopsy Report was that β-APP staining of the "corpus callosum and deep brain nuclei [was] negative". In the same report, his pathological finding with respect to the deceased's brain was that it was "unremarkable".
Those findings were the subject of modification after the Associate Professor Buckland Report was issued on 9 December 2021. However, before considering that development and the opinions expressed by Dr I'Ons and Professor Duflou, it is necessary to consider some relevant medical concepts primarily as derived from the Gorrie, Hortobágyi and Al-Sarraj Papers.
The Hortobágyi paper observed that blunt head injury is associated with acceleration and deceleration forces to the head. In addition to focal damage to the brain, those forces produce shearing, traction and compression which may damage axons.
Axons are defined in the Oxford Companion to Medicine, edited by John Walton et al (1986), as "the delicate thread-like extension of a neuron (nerve cell) which conducts impulses away from the cell body and which constitute a nerve fibre" (at 199). Professor Duflou referred to "damage to neurons" in the brain.
Hortobágyi et al. also stated that axonal injury involved specific "supra- and infratentorial sites" although the distribution and intensity of external damage varies from case to case and are related to the type and severity of impact.
Immunohistochemistry staining for β-APP is a sensitive method to detect early axonal damage in traumatic brain injury. β-APP is a ubiquitous membrane glycoprotein produced in the cell body and plays a physiological role in cell adhesion and endogenous neuroprotection in response to injury. It is transported by fast axoplasmic transport and accumulates proximal to the site of axonal injury (see the Al-Sarraj Paper at p 1).
In concurrent evidence, Professor Duflou opined that a β-APP stain looks for β-APP which can give indications of brain damage, asphyxia, or axonal injury
I return then to the expert opinions, commencing with the Professor Duflou Report.
In considering blunt force injuries, Professor Duflou opined, in the Professor Duflou Report, that there may or may not be injury to the internal structures of the cranium (or face) depending on the amount of force used and whether the head is mobile or fixed against a surface (such as the ground). The potential injury may vary across a range from bleeding over the surface of the brain to bleeding within the brain or damage to the tissues of the brain including axonal injury. There was no dispute as to his opinion that there was no bleeding over the surface of the brain or brain damage per se in the case of the deceased.
Professor Duflou could not exclude the possibility raised by Dr I'Ons in the comments section of the Autopsy Report summary that the deceased may have had a reduced level of consciousness or unconsciousness and an inability to self-protect the airway as a result of the injuries sustained to the head. However, he hypothesised that it was entirely possible that the deceased may have not lost consciousness as a result of those injuries to the extent that he would not have lost the ability to protect his airway. This was supported by an absence of inhaled blood and other material such as sand, dirt, or stomach contents in the upper airways.
In the same report, Professor Duflou acknowledged that there were rare cases described in the medical literature where a person has died from a condition known as commotio medullaris. This involved a circumstance where a person had died suddenly after sustaining blood force injuries to the head without identification of significant brain damage. According to Professor Duflou, the mechanism by which this condition emerged, such that it may provoke cardiorespiratory changes from mild or moderate head injury, was unclear and often associated with significant alcohol intoxication which was not found in the present case. He considered that it was most unlikely the death was the result of commotio medullaris in this case.
In the Dr I'Ons' Report, Dr I'Ons accepted that there had been no brain injury but "there may have been microscopic injuries of trauma". He further stated that these only develop if there is a survival time of 3-4 hours. Hence, the absence of these injuries does not prove that significant trauma to the brain did not occur.
After the production of the Professor Duflou and Dr I'Ons' Reports, Associate Professor Buckland's neuropathology report was issued. Associate Professor Buckland came to issue that report after Dr I'Ons had earlier omitted to seek Associate Professor Buckland's opinion about the β-APP staining he had undertaken at the time of the Autopsy Report. His evidence was that he had intended to seek Associate Professor Buckland's opinion because he found the β-APP staining which had been produced in the microscopic examination to be in some respects abnormal and difficult to interpret. He readily conceded that he did not have the ability to make a decision himself based on the complexities of the slides.
Associate Professor Buckland undertook further staining of the sample of the deceased's brain in November 2021. He found that a small amount of β-APP staining was located in sections of the corpus callosum and the staining was sparsely distributed across the corpus callosum. He ultimately concluded that the changes were "suspicious" for a mild degree of traumatic axonal injury.
Dr I'Ons explained that the word "suspicious" in that context meant "a high likelihood". Thus, Associate Professor Buckland's opinion, as explained by Dr I'Ons, was that there was a high likelihood of mild traumatic axonal injury which may have arisen from forceful blunt head trauma.
As a result, Dr I'Ons issued a further opinion communicated on 9 December 2021, which was expressed as follows: The β-APP staining is suspicious for a mild degree of traumatic axonal injury which may be seen in forceful blunt force head injuries. Its presence indicates a survival time of upwards of approximately 30 minutes from the time of injury.
There then followed the Professor Duflou Further Supplementary Report. He observed that, if the β-APP staining found by Associate Professor Buckland was present, the finding indicated a mild degree of axonal injury which could manifest as concussion. A person who is so concussed may be briefly unconscious for up to "some minutes" or be dazed but not lapse into unconsciousness.
In addition to the positive β-APP immune staining providing strong support for the possibility of mild traumatic brain injury, Professor Duflou opined that the finding also provided information on the length of survival time following the application of force to the head.
As to the former, Professor Duflou stated: Such axonal injury could readily manifest as concussion, especially given the absence of intracranial haemorrhage or significant brain swelling. Typically, a person who is concussed may either be briefly unconscious for up to some minutes or may be dazed but not lapse into unconsciousness.
He also stated, in concurrent evidence, that when no other brain injury was detected, then the injury from the β-APP stain often included concussion.
In concurrent evidence, Dr I'Ons stated that the head injury to the deceased could have caused deep concussion but the state of consciousness was not detectable merely by the examination of the body. Professor Duflou stated that the injury suffered by the deceased was caused from not insignificant blunt force injury which caused axonal injury. Dr I'Ons observed that the β-APP staining confirmed that the deceased was subject to a traumatic experience, to multifocal head injuries producing a rotational type of brain injury. The impact on the deceased ranged from consciousness to unconsciousness.
Professor Duflou observed that in a normal axon, there would be a steady passage of β-APP travelling backwards and forwards along the nerve fibre. With concussion, there is an interrupt of that transport, and as a result there is a build-up of β-APP (resembling a sphere).
As to the latter, the Gorrie Paper explained that β-APP positivity can be used to establish a minimal "survival time" (at p 1180). Similarly, Hortobágyi found that β-APP immunohistochemistry can detect axonal damage after severe head injury within 35 minutes; the minimal survival time.
The recent Al-Sarraj Paper raised again the question as to what was the "minimum post-incident time for survival that axonal injury can be detected by β-APP immunohistochemistry". The authors opined that this was an important question in medico-legal practice for the diagnosis of traumatic brain injury "in patients who die instantaneously/rapidly after head injury".
Professor Duflou observed in his Further Supplementary Report, correctly in my view, that the authors in the Gorrie and Hortobágyi Papers found that positive axonal injury may be observed if the survival time between injury and death was a minimum of 35 minutes.
The Hortobágyi Paper observed that β-APP was a sensitive method to detect early axonal damage in traumatic brain injury. It was observed that the survival time had previously been estimated to be a minimum of 60-90 minutes after head injury but, in the seven cases of post-traumatic survival examined by the authors, a period of 35-60 minutes was indicated where β-APP detected early axonal damage. In conclusion, it was indicated that β-APP was detected in the studies with a minimum of a "35 minute survival time after severe head injury".
Three groups were examined by the Hortobágyi paper. Group 1 consisted of persons who suffered severe head injury with a documented survival time of between 35 to 60 minutes. The seven persons studied in Group 1 had suffered various deep scalp bruises or facial injuries resulting from assaults including punching and kicking. Some of the injuries resulted in fracture of the skull or brain swelling. Group 1 dissections revealed β-APP immunoactivity in various parts of the brain including the corpus callosum. Group 2 also involved severe head injury with a documented survival time of less than 30 minutes. Those brain segments were negative for β-APP staining. Group 3 had not died from severe head injury and survived between 45 and 109 minutes. Again, the results were negative for β-APP staining.
Thus, in this study, a deceased can be expected to have survived a minimum of 35 minutes between the impact/s which resulted in concussion. An outer limit of survival - within reason - is not able to be given on the basis of β-APP positive staining.
Professor Duflou returned to the question of commotio medullaris in the Further Supplementary Report and opined that, based upon the minimum survival time identified in the Gorrie and Hortobágyi Papers, the condition could not occur in the present case. This was because the presence of β-APP positivity is indicative of a survival time of 35 minutes and "such lengthy survival time would be most implausible had there been an immediate cardiorespiratory arrest as is proposed in persons with commotio medullaris".
Based upon the expert opinions of Professor Duflou and Dr I'Ons, it may be agreed that the "accepted wisdom" or conventional theory in forensic pathology and neuropathology at the end of 2021 was that 35 minutes was the minimum time for β-APP positivity where there had been damage to the brain as a result of rotational head injury. Professor Duflou accepted that that time may be reduced to 30 minutes but no lower. This was indirectly the minimal survival time for a person suffering such injury.
By the time of the concurrent evidence, Dr I'Ons adjusted his opinion of 9 December 2021 to permit a lesser survival time based upon the Al-Sarraj Paper. The question which arose between the expert forensic pathologists was then the same one raised in the Al-Sarraj Paper, namely, whether there may be β-APP immune reactivity in which the survival time was less than 30 minutes.
Dr Duflou's evidence as to the Al-Sarraj Paper was as follows: 1. The paper was published in the International Journal of Legal Medicine, which is a reputable, peer reviewed journal. 2. It is necessary to take this paper "into consideration" and to consider whether it applied or not, but the study only represents a single test in a very recently published paper. Regard must be had to the observations of the authors that the mechanism for β-APP reactivity may be different in that case to the present case because of the severity of the trauma cases. 3. The study considered road trauma cases. There was a group of 37 cases, where it was considered that death would either be instantaneous, very close to instantaneous or "almost certainly less than 30 minutes". The authors found that β-APP staining was found in those brains in a period of less than 30 minutes. 4. However, there are two important differences from previous studies as follows: 1. The cases examined in the Al-Sarraj Paper concerned cases of severe trauma arising from an un-survivable car crash involving massive rotational movements to the head. In fact, in 34 of 37 cases there was bleeding over the surface of the brain as well as bleeding within the brain. This was a significantly different circumstance to the present matter. The recorded injuries indicate the existence of a very large amount of force. Professor Duflou acknowledged that three cases were described as unremarkable on naked eye examination and had died from chest or abnormal injuries. 2. The authors recommended caution so as to not overinterpret the results, which required close correlation with autopsy findings, circumstances of the incident and other investigations.
In the cases considered in the Al-Sarraj Paper, there is "primary axotomy" resulting in the actual separation of nerve fibres resulting in a very rapid accumulation of β-APP substance. That is the explanation provided by the authors as to why there is β-APP positivity registered at a time significantly less than 30 minutes. The authors do not suggest the studies in the Gorrie and Hortobágyi Papers are in error.
Professor Duflou accepted that in 3 out of the 37 cases examined, the brain was described as unremarkable because the cause of death related to other factors, such as the abdominal injuries, although three cases nonetheless resulted in positive β-APP findings.
Dr I'Ons' opinion as to the Al-Sarraj Paper was as follows: 1. A principal consideration arising out of the paper was the need to be cautious with the assessment of survival time that is proposed to be a minimum of 30 minutes. The earlier scientific view may not now be fully correct. 2. The previous studies would suggest that the minimum time between the deceased receiving injury to the brain and when he died would be 30 minutes, but the Al-Sarraj Paper would suggest caution: "The period may be 30 minutes, but it could be under". 3. The state of medical knowledge at the moment is that β-APP staining may be seen where the survival time was less than 30 minutes. 4. It was recognised that the results may be connected to the severity of the injuries suffered with respect to the persons examined. It was opined that "there [may be] β-APP leakage that is different to what we normally see". 5. The main reasons for the authors of the Al-Sarraj Paper choosing the cases under consideration is because the cohort examined had "an extremely limited period of survival". The cases exhibited the typical mechanisms of rapid deceleration such that the head would rotate. In 34 of the 37 cases there was demonstrative naked eye evidence of injury to the brain or as coverings. Associate Professor Buckland's Report found β-APP staining in the corpus collosum which indicated that the injury only occurred in that place. In that case, the injury was "in the milder part of the spectrum". There is a different type of damage to the nerve fibres to those found in the Al-Sarraj Paper. The early appearance of β-APP positivity as seen in these cases may be contrasted with the "concussion" type cases, where there is a delay of "35 minutes or so".
I turn then to specifically consider the Al-Sarraj Paper. The authors commence the paper by stating that the timing of traumatic brain injury, dependent on neuro-pathological examination, is one of the most challenging aspects of forensic neuropathology. The authors observed that within that forensic neuro-pathology practice, they had observed "a few cases of head injury" with β-APP immune reactivity in which the survival time was reported to be less than 30 minutes and in others, with rapid and near instantaneous death.
The study was designed to investigate if β-APP staining for axonal injury could be detected in the autopsy brain of patients with rapid death following a fatal road traffic collision. By answering that question, it was stated, the study provided further insight into the rapidity which β-APP can be demonstrated after fatal head injury, it may provide further understanding into the "pathophysiology of axonal injury".
Subjects in the study were divided into three different groups depending on the time of survival after traumatic incidents. A fourth group of non-traumatic rapid deaths was used as a control group.
The groups considered in the paper were as follows: 1. Group 1 concerned rapid death at the scene. There was evidence of rapid death within a few to several minutes but less than 30 minutes. There were 37 subjects in this group. 2. Group 2 concerned a short survival time and comprised subjects who survived between 31 minutes and 12 hours after the road traffic accident. There were four subjects in this group. 3. The third group involved a long survival time comprising subjects who survived between two and 31 days after the road traffic accident. There were eight in this group.
In Group 1, the authors stipulated that head injury was the principal cause of death in 11 out of the 37 patients. In a further 7, the head injury was combined with at least one other major injury to another anatomical area. For the other 19 out of 37 cases, an injury to a part of the body other than the head was considered the principal injury that caused death but features of traumatic brain and head injury were also present.
In Group 1, 35 out of 37 cases showed β-APP immunoreactivity in one or more brain regions. There were head injuries to varying degrees with features including scalp bruising, skull fracture, subdural haematoma and subarachnoid haemorrhage.
The two brains which exhibited negative for β-APP staining were from a patient who died of chest injuries and alcohol intoxication. The same conclusion was made with respect to another brain where the patient died from severe neck injury/decapitation of the head at level of C1/2. The β-APP was also positive in two patients who had only chest injuries but with no visible traumatic brain injuries. However, there was a degree of head injury caused by an acceleration and deceleration mechanism. This was likely, as both had a significant impact being involved in a high-speed collision as a pedestrian or a driver.
The authors in the Al-Sarraj study explicitly recognised their conclusions differed from the Hortobágyi Paper and, in fact, that axonal injury could be detected earlier than the 35 minutes after severe head injury.
The authors then considered the possible explanations for the different results from earlier studies. There were three identified as follows: 1. There was a different method of identification at the time of death and the post traumatic survival time. The distinction was drawn between the Hortobágyi Paper, where the authors depended on the ascertainment of time of death by the time it was officially recorded by qualified paramedics arriving at the scene of an incident (such that the death may have occurred earlier) and the method used in the Al-Sarraj Paper to estimate the time of death from pre-hospital services emergency information. This distinction appeared to be predicated upon the nature or presence of the injuries of the patients studied in the Al-Sarraj Paper which was said to be incompatible with a period of survival of more than a few minutes at most, or even instantaneous death. The time of death was considered as having occurred shortly after the trauma in the matter, of a few to several minutes, having regard to the time that elapsed between the initial call and the first medical respondent having found the patient in cardio-respiratory arrest. 2. An important point of difference identified by the authors was that the Hortobágyi Paper studied only seven cases of head injuries resulting from assault. The Al-Sarraj Paper involved the study of a larger number of fatal head injuries resulting from road traffic collisions. It was then stated that a possible explanation as to why the Al-Sarraj Paper was able to detect β-APP in a shorter survival time was that "our cases represented a different cohort of more severe head injury resulting from RTC. It is expected that the magnitude of a force in RTCs and the severity of acceleration and deceleration of the brain tissue would be more severe compared with those resulting from assault" (emphasis added; the reference to assault is to a reference to the cases studied in the Hortobágyi Paper). 3. Technical differences were identified although the authors stated that they considered this had a minimal effect on the overall results compared with other factors.
The authors of the Al-Sarraj Paper identified that, whilst traumatic axonal damage was common in all degrees of head injuries, the severity varied in different cases depending on the load of force and deceleration of the brain. In cases of very severe head injuries such as those resulting from road traffic collisions, the sheering of the axonal fibres leads to complete disconnection in a process of primary axotomy. The authors stated: … however, despite the apparent correlation between the magnitude and head injury and the traumatic axonal injury, primary axotomy is thought to be a minor contributor compared with the secondary mechanism in overall axonopathy seen in traumatic brain injury.
The authors made two significant observations. The first observation was as follows: We propose that if the head injury is severe, like those in severe and fatal impact injury, one would expect a severe and rapid axonal damage, probably more frequent primary axotomy or a very rapid secondary axotomy occurring in minutes. The neurofilament backbone of the axons quickly collapses, leading to disintegration at the site of the damage. Following this, the axolemma beginnings to fold inward and separate from the underlying myelin sheath. The transported proteins continue down the stream of the axoplasm until they reach the site of injury where they immediately accumulate because they are unable to progress. This is the point when βAPP is expected to be visible as small well-defined globules or thin filaments.
The second observation was in the following terms: As mentioned earlier, the very early accumulation of BAPP in axonal injury in patients who died at the scene of an RTC indicates interruption of the fast-axonal transport and not necessarily axotomy. Some βAPP may accumulate due to temporary and reversible axonal dysfunction. Therefore, from a practical point of view, it may not be possible to know the significance of this accumulation in relation to the degree of head injury. However, the involvement of infra tentorial parts of the brain including the cerebellum, cerebellar peduncles and brain stem structure in additions to the supra tentorial parts would raise possibility of a severe degree of head injury. Nevertheless, care should be taking not to over interpret the small amounts of βAPP accumulation in rapid death after head trauma without other evidence of severe head injury. (footnotes omitted)
Finally, there is a summary referred to by Professor Duflou which is in the following terms: Axonal injury can be detected in the brain of those who died rapidly following fatal road traffic collision. We propose that the early accumulation of βAPP is probably due to the high magnitude of loaded forces in head injury resulting from RTC in this cohort which could possibly cause higher proportions of primary axotomies and/or that the stretching axonal injuries are more severe, causing quicker alteration in the axonal cytoskeleton. Our result is expected to have implications on the timing of head injuries in medicolegal practice but caution is recommended so as not to over-interpret the results which require close correlation with autopsy findings, circumstance of the incidence, and other investigations. (emphasis added)
The Crown's submissions in relation to this subject were as follows: 1. There was agreement that the β-APP staining confirmed that the deceased had suffered an axonal injury because of blows to the head and the movement of his brain within the skull causing injuries to the fibres within the hemispheres of his brain. 2. It was also agreed that the injury could cause concussion, but the degree of concussion was unknown. Professor Duflou suggested that the injury was significant and suggestive of concussion. 3. The main point of different between the experts was whether the position of the β-APP staining indicated the survival time was 30 minutes or more. 4. Very recent research in a respectable publication suggested that the accepted wisdom of a survival time of 30 to 35 minutes may be incorrect. The study showed that axonal injury in patients who had not survived 30 minutes. It could be observed in patients who had not lived more than a few minutes from the time of impact. The study demonstrated in Group 1 that patients had died within a period of 30 minutes, but β-APP staining was still found. 5. The Crown recognised that two explanations were provided in the paper as to the results different from earlier studies. One such explanation was that the patients had very severe brain injuries. However, the Crown submitted that "all of these people died, so all these people had very severe injuries, but perhaps they are more severe when a person dies within 30 minutes". It is significant in the Crown submission that not all of the cases in Group 1 involved very severe brain injuries, and as Professor Duflou accepted, three of those cases involved no brain injuries other than rotational axonal injury, although it was accepted that "three is a very small number". 6. Whilst Professor Duflou recognised that the study was significant and worthy he maintained that a 30 minute survival time was required for axonal injuries to be observed. This was an example, the Crown submitted, that he maintained his theory to fit his case hypothesis that the deceased could not have died from suffocation from the gag, as the gag is likely to have been removed at the time of his death. In any event, the Crown submitted that the occlusion of the deceased's airways was more than just a gag, even though Professor Duflou's analysis was only whether the deceased could have died from suffocation was if the gag was over his mouth. There are multiple factors in the Crown's case that caused the occlusion in the airways resulting in death. 7. The Court could find that the limit of 35 minutes is not absolute and adopt Dr I'Ons' approach with caution, acknowledging there is new evidence and there is no longer a hard and fast rule as Professor Duflou appeared to move on to.

[55]

Conclusion: Issue 2 - Brain Injury

The foregoing review of the expert evidence and medical literature on this question, when considered in the light of the submissions of the parties and my earlier directions as to expert evidence, should result, in my view, in the following conclusions on this topic: 1. The deceased experienced mild, traumatic axonal injury as a result of significant blunt force head trauma. The injury resulted from rotational forces to the brain sustained from a force applied to his head. 2. There was an absence of intracranial haemorrhage or significant brain swelling in the deceased's head. β-APP positivity was located at one brain site in the present case as opposed to multiple locations in the patients studied in the Al-Sarraj Paper. 3. It was likely that the deceased was concussed at some stage of the assault upon him. The degree of concussion is unknown. Further, it is unknown whether the deceased lapsed into an unconscious state. Typically, a person experiencing the trauma the deceased encountered, may be briefly unconscious or unconscious for a few minutes or simply dazed and not lapsed into unconsciousness. 4. There is no sound reason, in my view, to reject the defence's evidence that the 'accepted wisdom', or conventional approach, in forensic pathology and neuropathology at this time is that 35 minutes (possibly 30 minutes on Professor Duflou's evidence), was the minimum time for β-APP positivity where there had been axonal damage to the brain through rotational forces. Thus, β-APP immunohistochemistry can detect head injury within 35 minutes: the minimum survival time for β-APP reactivity. 5. My reasons for this view are as follows: 1. Professor Duflou is eminently qualified to provide an opinion both as to the conventional approach to this question, incorporating, as it does, his own research, and the implications of the new research published in the Al-Sarraj Paper. His evidence on this topic is indicative of this knowledge and experience on this topic. Whilst well-qualified as a forensic pathologist, Dr I'Ons is less qualified than Professor Duflou in this respect. I note that Dr I'Ons required the assistance of Associate Professor Buckland to apply and interpret the β-APP staining for the slides taken from the deceased's brain. 2. I do not reach my conclusions in this respect on the basis of credit, but I do note that Dr I'Ons' evidence appeared to avoid the question when he was asked why Associate Professor Buckland's findings as to mild trauma would not distinguish the present case from the study reflected in the Al-Sarraj Paper. Dr I'Ons' answer was to the effect that Associate Professor Buckland was not addressing the question of survival times, but rather was making a finding as to the existence of axonal injury and its severity. However, the issue raised with Dr I'Ons in cross-examination was whether the description of the deceased's brain injury by Associate Professor Buckland might not suggest the deceased's brain injury was of a different character to the brain injuries studied in the Al-Sarraj Paper. That question was not squarely answered in this passage of his evidence. 3. The Crown submitted that Professor Duflou had accepted that to ignore the evidence in the Al-Sarraj Paper would have taken inquiries "on a highway to nowhere", even though it is "new research" and "a theory". It was suggested that Dr I'Ons' approach was desirable, but implicit in that submission was the notion that there was in fact no longer any hard or fast rule because of the "new evidence". 4. However, for reasons I will now discuss, I accept the submission for AN that the approach proffered by the Crown, based on Dr I'Ons' views in that respect, was inappropriate. The Crown was, in substance, contending that the Court should exercise caution, if not reluctance, in its approach to a body of well-established medical research upon the basis of findings in a very recently published paper which itself warned against over-interpreting its results. In any event, Dr I'Ons' statement that, "we should be a bit more cautious" about the well-established theory "until we have worked out a little bit about" the β-APP survival time is vague and uncertain. In contrast, Professor Duflou gave a number of reasoned and insightful analyses of the Al-Sarraj Paper and the limitations of its consequences for the established doctrine. This evidence went largely unchallenged. 5. Professor Duflou urged caution as to the acceptance and application of the Al-Sarraj Paper in this case, even though he accepted that the paper required "consideration"; exploring the differences between the circumstances studied in that paper and the circumstances here under consideration. That approach is understandable and appropriate. The approach was partly a product of his application of scientific method to essentially a single occasion of the new medical research that had not been examined or replicated in the way as had been the case in earlier scientific inquiry into axonal injury. Professor Duflou's approach was also derived from his assessment of the apparent differences in the research cohort between the subjects of earlier studies and the subject of the Al-Sarraj Paper. As mentioned, the Al-Sarraj Paper itself encouraged that the results not be over interpreted, particularly in light of the authors' own thesis that differences between the findings in their paper, including the nature of head injuries studied, and the earlier medical research published in papers such as the Gorrie Paper and the Hortobágyi Paper as to axonal injury may be adequately explained on the basis of the nature and severity of head injuries studied in the Al-Sarraj cohort. 6. I accept that there is a well-established view in forensic pathology and medical literature in that field as to the interpretation of β-APP positivity as to survival time after brain injury, namely, positive axonal injury may be observed by β-APP stain if the survival time between axonal brain injury and death is a minimum of 35 minutes. 7. There is no warrant to divert from those established principles in the present case, notwithstanding the new research or theory. Cases examined in the Al-Sarraj Paper concerned cases of severe trauma arising from un-survivable car crashes involving massive rotational movements to the head. As the authors of the Al-Sarraj Paper stated in their conclusion, the earlier accumulation of β-APP is probably due to the high magnitude of loaded forces in head injury resulting from road traffic collisions under consideration which could possibly cause higher proportions of primary axotomies and/or more severe stretching axonal injuries because of quicker alteration in the axonal cyto-skeleton. This is a significant difference in the present matter having regard to the findings of Associate Professor Buckland, where the trauma experienced was significantly less than that found in the Al-Sarraj study and resulted from an assault (the type of injuries examined in the Hortobágyi Paper). Further, axonal injuries occurred here in a single location in the brain and without brain haemorrhage or bleeding. 8. The three exceptions identified in Group 1 in the Al-Sarraj Paper, as the Crown properly conceded, represent a very small sample number. Further, this group did not distract from the authors' conclusion that the early accumulation of β-APP was partially but substantially due to the high magnitude of loaded forces in head injuries resulting from road traffic collisions. This is what the authors of the Al-Sarraj Paper meant, in my view, when they cautioned not to over-interpret the results, particularly in the absence of a close examination of the circumstances of the incident resulting in brain injury. The contention advanced by the Crown, in essence, was that not only the extremely traumatic cases involving significant head injuries could be found to establish a basis to treat the survival time as less than 30 minutes, but also the aberrant cases that showed no such injuries to the brain without any exposition on the topic by the authors of the study or views expressed by them in favour of such an approach. 9. Different methodologies were employed in the Hortobágyi and Al-Sarraj Papers, but the impact of those differences itself was predicated on the nature and presence of injuries studied in the Al-Sarraj Paper.

[57]

The Expert Reports

I have set out Dr I'Ons' opinions in this respect in the Autopsy Report. In the Professor Duflou report, observations were made under four relevant headings in this respect, before conclusions were drawn. Those headings were: blunt force injuries; asphyxia; suffocation and positional asphyxia (the issue of neck compression was also raised but diminished in significance as a result of the concurrent evidence).
Professor Duflou's conclusions directly bearing upon the present subject matter (obstruction of airways and relationship of positional asphyxia) were as follows: 1. While it is possible that the deceased's external airway passages were occluded by tape, there was no specific indication of this being the case when the body was found. 2. If the deceased was alive after the tape was removed from his mouth while still alive, then it is unlikely the deceased would have died of the tape having been placed over his mouth and/or nose. 3. There are no specific indications of positional asphyxia/restraint having occurred in this matter, although this cannot be positively excluded as a possibility.
Under the heading "Blunt force injuries", Professor Duflou stated that he did not exclude the possibility that the deceased may have had reduced level of consciousness or unconsciousness and an inability to protect the airway as a result of the injuries sustained to the head. Alternatively, however, it was entirely possible that the deceased may have not lost consciousness as a result of those injuries, to the extent that he would have lost the ability to protect his airways. The latter possibility is supported by the absence of inhaled blood or other material such as sand or dirt in the upper airways (save for the mouth) and the lungs.
Under the heading "Suffocation", Professor Duflou's opinions may be summarised as follows: 1. If the deceased was gagged with packing tape and there was an obstruction to the nose as well, then it is entirely possible that the deceased could have suffocated. 2. However, the tape was not found over the mouth of the deceased at any time from when the deceased was found, and there were no specific indications of the nasal orifices having been occluded by the tape at any time. 3. There was nasal bone fracturing, but there was minimally displaced comminuted bilateral nose fractures with patent nasal passages. 4. Whilst the deceased's petechiae in his eyes as observed in the autopsy may have indicated direct blunt force to that part of the body, there is an insufficient basis to conclude that the petechiae indicated suffocation. I note that I will later find that it may be doubted that petechiae may serve as an indicator of suffocation in this case, particularly in the light of some concessions made by Dr I'Ons on this topic.
As to the discussion of positional asphyxia, Professor Duflou's opinions may be summarised as follows: 1. It is possible that the deceased was in a prone position at some time, as evidenced by abrasions on the forehead and left knee and the absence of material to exclude the possibility. 2. The supine position in which the deceased was found would not be expected to make a person susceptible to positional asphyxia or restraint asphyxia. The position the deceased was in may have provided greater protection to the airway. 3. Positional/restraint asphyxia cannot be positively excluded as a possibility in this case. Cardiorespiratory arrest during restraint is a complex and controversial topic in forensic pathology but there is no doubt that persons can die suddenly and unexpectedly while in a prone position and while being restrained by another person or persons. This will often happen in a setting of an intoxicated person with a significant but often unsuspected disease. 4. There are relatively few positive autopsy findings consistent with positional restraint, save for the petechiae on the eyelids and the right scelera and indications of cutaneous and soft tissue injuries to the body which may be the result of restraint. There are no restraint injuries caused during a struggle, congestion of the organs, petechiae or other haemorrhages on the surface of the lungs, pronounced suffusion of the face or petechial haemorrhages on facial mucosal and conjunctival surfaces. 5. The person restrained in a prone position, often has a subjective sensation of shortness of breath, resulting in increased anxiety or panic and therefore stress to the heart. This is especially the case if persons restraining were positioned against the back of the chest of the person restrained, although there does not seem to be any specific evidence of such restraint having taken place in this matter. Otherwise, the evidence for prone restraint position causing any serious asphyxia is lacking in experimental settings with no clinically significant changes in oxygenation or ventilation demonstrated in such cases. On the other hand, hypoxia causes the myocardium to be more prone to arrythmia, can be sudden and unexpected in onset. In these circumstances a person tends to die during restraint, or a struggle and it is not typically described as occurring after restraint has been released. Accordingly, if the deceased was likely alive for a period of time after being restrained, it would follow that restraint would not be the cause of death.
In the Dr I'Ons report, Dr I'Ons opined that "debris/blood" may produce laryngospasm. He stated that the upper airways would not allow blood/secretions down the trachea when a person is conscious. Dr I'Ons made some further observations responsive to Professor Duflou's opinion as to the possibility of the deceased becoming unconscious: 1. If the deceased was on his back, the tongue would cover the airways preventing air and secretions from entering the airways and obstructing the airway. 2. If the deceased was prone, the secretions would not be expected to be found in his lungs, they would trickle down the nasal and oral cavities and obstruct them along with the packing tape. 3. Purge post-mortem can partially clear the upper airways of blood and debris. In his report, Dr I'Ons emphasised that the cause of death required both craniofacial trauma and airways obstruction and described the mechanisms of each.
As to craniofacial trauma, it was observed that that trauma may: 1. Produce blood/secretions in the nose and mouth; 2. May or may not cause a reduced level of consciousness although it would probably have an effect on capacity; 3. The injuries are multifocal. This was not a mere scuffle.
As to obstruction of airways, reference was made to the packing tape over the face providing the following: 1. Airway obstruction combined with sand and blood; 2. If the deceased was not gagged and was semi-conscious and laid face down in the sand or on his back, this may have been sufficient to result in airways obstruction and death. 3. If he was gagged the question was posed, "where is he getting his oxygen from?"
Dr I'Ons also commented in the Dr I'Ons Report that, if the hands of the deceased were bound behind his back, this might also contribute to prone restraint cardiac arrest. Reference was made in that respect to a recent review of scientific literature and explanation of physiology by Alon Steinberg, "Prone Restraint cardiac arrest: a comprehensive review of scientific literature and an explanation of physiology", published on 25 February 2021 in Medicine, Science and the Law. This paper, which I will describe as the Steinberg Paper, was not tendered at trial but acknowledged by Professor Duflou and Dr I'Ons. Professor Duflou read out the introduction of the paper as follows: The definition of death from positional asphyxia involves three specific criteria: (a), evidence that the individual's body position interfered with or prevented ventilation or normal gas exchange; (b), evidence that the individual was unable to move to another position; and (c), clear exclusion of other causes of death based on findings from autopsy.
It may be noted for present purposes that Professor Duflou stated the evidence might arguably establish the first proposition, but it is debatable; there is no evidence as to the second proposition and as to the third question, there was no clear exclusion of other causes of death based on findings from the autopsy. Professor Duflou answered yes. His opinion then was that using the criteria in the paper, restraint asphyxia should not be determined as a cause of death in this case.
Dr I'Ons returned to the question of airways obstruction, stating that the airways obstruction may have been caused by: 1. The mouth as "the gagging tape (this appears to be the case)"; 2. Internal factors, namely the mouth - "secretions plus or minus blood plus or minus tongue position plus or minus sand". There is a large amount of perioral/nose blood. This may have been contributed to by a post-mortem purge, but it may also represent nasal bleeding from injuries.
As to physical indications of gagging causing suffocation, Dr I'Ons opined: 1. There usually are none; 2. Sometimes petechiae are present in suffocation.
As to positional and restraint asphyxia, Dr I'Ons observed: 1. The binding of the hands and legs of the deceased naturally placed him in a prone position; 2. The prone position is also suggested by the anterior torso injuries (short shoulders) and large amounts of "well embedded dirt on the clothing and skin (knees)".
Dr I'Ons also commented that he was more comfortable with the concept of restraint asphyxia than positional asphyxia. As to restraint asphyxia, in the Steinberg Paper, Dr I'Ons observed the main points of the paper were that: 1. Physical restraint is a powerful contributor to death in subjects who were agitated or in excited states; 2. A prone restraint position deceases ventilation and deceases cardiac output and; 3. A combination of these factors can lead to metabolic acidosis.
The traditional description of positional asphyxiation should be replaced with the descriptor "prone restraint cardiac arrest" and the mechanisms for that condition are lack of oxygen; physical exertion (struggle) with increased oxygen demand; inability to ventilate results in metabolic acidosis and asystolic or pulseless electric activity ("PEA") cardiac arrest. In his final analysis, Dr I'Ons maintained his conclusion being craniofacial trauma and airways obstruction as the cause of death, but indicated that a prone position, while restrained, may have contributed to death. He issued a separate report as to methamphetamines.
In Professor Duflou's Supplementary Report, he made observations as to the cause of death. I will return to those opinions later, but for present purposes it is useful to note two views that are particularly relevant to the present subject matter. Those are as follows: 1. There was no obstruction of the airway of the deceased at the time of autopsy and presumably at the time the body was found at the scene. The oropharynx, larynx and trachea bronchi were clear of obstruction and there was no indication of aspiration of foreign material, secretions or blood in the lungs. 2. Thus, notwithstanding sand and debris in and around the mouth, within the nasal passages, the fracture of the nose and the possibility of tape around the head covering the mouth and nose (albeit with a void of the nose suggesting that the nose was not occluded), Professor Duflou disagreed with Dr I'Ons that airway obstruction had been present in this case. 3. Whilst the deceased may have been restrained, and it is not available to positively exclude the possibility of positional restraint asphyxia in this case, it remains the case that there is no positive evidence at autopsy for this having occurred. In particular, binding of ankles and wrists did not play a role in the death and could not be considered a feature of restraint of the type associated with restraint-related deaths which typically require pressure on the persons trunk whilst in a prone position with associated difficulties breathing and various cardiovascular or metabolic effects.

[58]

Concurrent Evidence

In the concurrent evidence, Dr I'Ons clarified that "obstruction of airways" as a potential cause of death was concerned with "the whole issue of suffocation". The obstruction of airways was contributed to by "the gagging, by the debris and sand and blood in the mouth and nose, by the prone position, by his arms behind his back". It was identified that suffocation was not solely caused by the gag effectively covering the mouth and nose in entirety.
Dr I'Ons explained that suffocation is a cause of death that may leave no mark at all and as such requires a number of pointers to establish that there is suffocation. The three pointers relied upon by Dr I'Ons were: 1. The deceased was in a prone restraint position. The deceased was in "a combat position" where he had a high oxygen demand for his tissues to do their work to stay alive. In a prone restrained position, firstly, the deceased's ability to put oxygen into his lungs is reduced, although it is not a massive reduction. Secondly, the deceased reduced his cardio output, which is the amount of blood that is pumped from the heart into the tissues. The combination of both these effects is, on one hand, reduced oxygen is being sent to the tissues, and, on the other hand, the body in a combat position needs more oxygen. This "means that your body can become oxygen starved which means it produces acid metabolic acid doses which the body is very vulnerable to producing what has been shown as sudden cardiac arrest, pulses, electrical activity". These opinions were illuminated in the following exchange: CROWN PROSECUTOR: Just in relation to the prone position, is your evidence that this caused him difficulty with his airways? WITNESS I'ONS: So the prone position with your hands tied behind your back results in a number of physiological changes. The number one physiological change is a reduction in your oxygen intake. It's not a massive reduction but it is present, and the latest article on this from 2021 demonstrates that. The other change is a reduction in cardiac output. That's very significant because what a reduction in cardiac output means is that your heart is not pumping as much blood to the areas of activity that it normally does so the heart's, each pump it's pumping out less blood than it normally does. That's very important in a restraint type struggle death. As we've said, you have an increased oxygen demand, your oxygen consumption necessarily needs to be higher, so he can't take as much oxygen in, then his heart is not delivering what oxygen there is to his body. What that leads to in the body is an increase in metabolic acidosis, so an increase in the amount of acid being produced as a by-product of that struggle, and not enough oxygen. That leads to sudden cardiac arrest. These findings are well described in the latest article in 2021 which followed the events in the United States where a cardiologist reviewed all of the latest literature on this issue. 1. The deceased's airways were compromised which can be seen from "both the binding [gag or tape] and then the material around his face and in his airways". It was explained that, if a cushion was put on a person's face and suffocated them and then the cushion was taken away, the CT scan would record that the airways are patent and the airways would visually be patent after the death. The geographical situation reveals that the deceased's face was in relatively soft sand. Debris was observed in the crime scene photos and present in the autopsy room photos before washing, although Dr I'Ons stated that there is a possibility that some of the sand fell out during the transportation of the deceased's body to the autopsy. Dr I'Ons stated, "There is sand all round his nose. There is a little bit inside his nose. There is sand inside his mouth. There is vegetable matter, that is, plant material wedged in his teeth. So those point towards a face down position in sand covering his face in like a cushion would". 2. The presence of petechiae on the deceased's body. One way that petechiae forms is by venous obstruction, which can occur if one is straining, including straining on the toilet, coughing, or vomiting. It was explained that "someone coughing and vomiting they go red in the face because they have a back flow of blood into the face. It doesn't go down to the heart like it should. So people who vomit get petechiae in certain circumstances". It was further stated: [I]t has been shown that in some circumstances suffocation produces petechiae and the mechanism is probably because of the straining, much like straining in the toilet or much like a vomit strain where you close the glottis and you go red in the face. He has got a blocked airway. He is trying to clear that airway. He is trying to stop debris secretions go down his airway and so he is straining to do something about that. I think these fine petechiae we see point to such a case. I acknowledge though that there are many causes of petechiae. … We strongly resist anything going down our airways. If you tap the back of your throat with your finger or you put a bit of carrot down your larynx you cough like crazy to get that out of your airways. So the tiniest amount of sand going down the airways would cause him to cough very hard which again might point to those petechiae, that he is trying hard to try and clear his airways of sand and keep anything from going down.
In relation to the "gag", Dr I'Ons explained: The other thing is if his mouth is completely obstructed which it seemed to be by the gag, the amount of material it takes to obstruct the nose is very small. Your nasal, your nostril spaces are not large and we are not talking about a large amount of sand required. I wouldn't expect any more sand in the mouth and nasal area than what we saw for complete obstruction for that nose.
Professor Duflou's evidence in relation to the issue of suffocation and positional asphyxiation was as follows: 1. Based on the photographs of the police at the scene, the position of the deceased at the scene was that he was lying on his left side with the body facing upwards with the head to the left, and importantly, the mouth and nose exposed. 2. Professor Duflou accepted, albeit with some reluctance, that the deceased "may well have been face down with his stomach on the ground" at some point and that the deceased may have fallen to the ground during the assault and, if falling face first, have had dirt and sand and debris on his face and in his teeth. Nor did he exclude the possibility that the deceased's head was held in the sand or soil, but his view was that that was no more than a possibility - "there is no evidence for it". 3. Nonetheless, there was no evidence whatsoever of the deceased having been in the prone position, let alone in a restrained prone position and that he died of, presumably, cardiac arrest while in that position. The drag marks show the deceased was likely in a supine position immediately prior to his final position, not a prone position. I do not consider that that evidence, when closely examined, constituted, as submitted by the Crown, a rejection by Professor Duflou that the deceased was in a prone position at some point. Rather, he was rejecting that the deceased had suffered a cardiac arrest as a result of being in a prone position. As Professor Duflou stated when questioned if the deceased was in a prone position: He may have been. But I'm not saying he was in a prone restraint position and as a result of that he died or that it contributed to death. 1. In terms of airway obstruction, it was accepted that there was sand and vegetable matter on the deceased's face and the front of his body. It is typical to see a large amount of sand in the airway of a person who has suffocated in sandy soil. But there was no sand in the air passages whatsoever. There was no evidence of inhalation of particulate matter into the lungs or swallowing of particulate matter. 2. It appears from the evidence that the packing tape covered the mouth at some stage. It appeared that the nostrils or the lower part of the nose was covered by the tape as reconstructed. There was nothing in the photographs that show when the tape was removed from the deceased. When the body was found, the tape was not over the nose or mouth of the deceased. 3. Professor Duflou considered that there was no evidence of the deceased being in a prone restraint position, that is, face down while restrained for a long period of time. Prone restraint involves "people on the body at the same time". Even though the deceased may have come into contact with the ground, it does not prove the existence of prone restraint asphyxia. 4. Professor Duflou did not accept that being in a prone restraint position would, of itself, restrict the deceased's "ability to protect his airways". If a gag was applied with nasal air access, it would not restrict a capacity to breathe.
Professor Duflou stated that most people "by habit are pure nose breathers" so, unless there was a significant pathological problem, the occlusion of the deceased's mouth "should not present a problem". When the Crown put to Professor Duflou that a person requiring a high level of oxygen after running or exerting themselves would expect to breathe through the mouth and nose, Professor Duflou responded that some people might breathe through both their mouth and nose, but some people do not.
Professor Duflou accepted in cross-examination that there was evidence that the deceased was repeatedly assaulted to the face; that the situation of being assaulted would be a stressful situation for the deceased; and that it may well cause him to "expect the heart rate to increase, and I could expect there to be a higher oxygen demand" if the deceased was conscious. However, he opined that if the deceased was unconscious, the deceased would not have a higher oxygen demand.
This was made clear in Professor Duflou's first report at [40], where he stated: A person restrained in the face down or prone position often has a subjective sensation of shortness of breath, and being restrained in such a person can certainly result in increasing anxiety and panic, and thereby added stress to the heart.
As I discussed above, it is clear that, at some point, the packing tape covered the deceased's face and excluded the nose. However, it is logically inconsistent for the dirt, sand, and vegetable matter to have come into contact the deceased's mouth if the packing tape was on the deceased's mouth from the beginning to the end.
It is clear that the Crown proffered two alternative explanations for the obstruction of the deceased's airways as the cause of the death. The first alternative is that the packing tape "gagged" and, when considered in the surrounding circumstances, including other blockages in his nostrils, obstructed the external airways of the deceased's mouth. The second alternative is that the deceased was being held in a face down position with the sand covering his face, which obstructed the airways like a cushion (for convenience, I will refer to this alternative explanation as "the cushion theory").
Both explanations were said to have occurred in circumstances where the deceased would have had a high demand for oxygen when struggling and defending himself.
However, on the evidence, significant doubt must accompany each hypothesis.
In drawing the conclusion that sand provided an obstruction to the deceased's airways, Dr I'Ons stated that he formed this view from considering the following: [I]t's sand over the entire face, within the nostril, within the mouth, sand on the anterior part of the thighs, the knees, shoulders, on the second layer of the shirt. There was significant anterior sand and debris showing that this man was in a prone position for a significant period of time under probably significant duress.
In relation to the CT scans, there was this exchange with Dr I'Ons: CROWN PROSECUTOR: If I could ask Doctor I'Ons a few questions on this topic of obstruction of airways. Firstly, Doctor I'Ons, did you view the CT scans of [the deceased's] nasal passages? WITNESS I'ONS: Correct. CROWN PROSECUTOR: What did they show? WITNESS I'ONS: They showed a rim of sand around the nostrils. CROWN PROSECUTOR: Is that consistent with the photos we see? WITNESS I'ONS: No because blood and mucin and other secretions are not, you don't see them on the CT scan, so it has to be radiopaque like bone and sand, lights up nicely, but blood, little bits of blood and mucin and leaf matter, that doesn't show up. CROWN PROSECUTOR: Is this right, the CT scans showed the debris around his nostrils? WITNESS I'ONS: Showed a rim of sand around both nostrils. CROWN PROSECUTOR: But it did not totally block? WITNESS I'ONS: It did not totally block.
Dr I'Ons stated that although the airways in the CT scan were patent does not mean that the sand did not obstruct the airways. The sand does not need to go into the airways for it to obstruct the airways.
Professor Duflou accepted the fact that there was dirt in the deceased's nostrils and in his teeth meaning that the possibility that the deceased's face was pushed into the sand could not be excluded. He explained, however, that the sand could have also come into the deceased's teeth and nostrils from him falling into the sand during the physical altercation.
Professor Duflou stated: In terms of airways obstruction, cushions et cetera, et cetera. There is sand and vegetable matter on the face, I accept that. There is some on the front of the body. To me it doesn't look like a huge amount, like clumps of sand in the mouth. That is something that you typically see in a person that is suffocated in sandy soil, that there is a large amount of sand in the airway. There was no sand in the air passages whatsoever. That's described in the post mortem report, they were clear, there is no evidence of inhalation of particulate matter into the lungs, there is no indication of swallowing of particulate matter. So again, if I could put it this way, a nice story but no facts that it is based on.
When cross-examined, Professor Duflou stated: CROWN PROSECUTOR: And you accept that the dirt in his nose would have at least partially occluded his ability to breathe through his nose. WITNESS DUFLOU: It may have, it depends. You can certainly have dirt around the nostrils and still be able to breathe quite readily.
Later in cross-examination, there was this exchange with Professor Duflou: CROWN PROSECUTOR: The evidence that we heard this morning was that it is not necessary for somebody's airways to be totally occluded for them to die from suffocation. Do you agree or disagree with that? WITNESS DUFLOU: I agree that they do not need to be totally occluded. CROWN PROSECUTOR: Do you understand that there was partial occlusion of the nostrils by the dirt that can be seen in the crime scene photos? WITNESS DUFLOU: Look, there is dirt on the nostrils. How much there is not entirely clear. I rely very much on the CT scan which describes the airways at patent.
The Crown submitted that Professor Duflou conceded that the deceased could have died from suffocation, but he had placed caveats on this concession. However, I do not consider that Professor Duflou made such a concession, unless the caveats referred to by the Crown Prosecutor were seen in absolute terms, that is, that the Professor did not agree with the hypothesis of Dr I'Ons that death arose from suffocation. The relevant passage of evidence would appear to be as follows: WITNESS DUFLOU: Well, let's go through the three. The first one is prone restraint. Prone restraint on its own does not cause an asphyxial death by way of occlusion. I don't think there is any evidence whatsoever of prone restraint of the type that is my understanding of prone restraint. Number two was that there is obstruction of the airway itself presumably by vegetation, et cetera. In fact it is on the surface. There is no indication whatsoever of it having been inhaled. A person who is struggling to breathe will inhale what, if they at all can, the material that is partially occluding. I think it is accepted there isn't a full occlusion so it is a partial occlusion, if that. That partial occlusion would be prone to be inhaled. The third one, the presence of petechiae, I think we've discussed that. CROWN PROSECUTOR: I was asking whether in combination they could explain the death of [the deceased]. Is it your answer they do not? WITNESS DUFLOU: They all can be readily explained with other causes. If, for example, it is accepted as fact that the airway was, well, that there was a gag over the mouth at the time of death, that the nose was obstructed, that he was face down in the dirt, et cetera, et cetera, well there we go. CROWN PROSECUTOR: That can explain his death? WITNESS DUFLOU: It could explain anyone's death. But in reality what we've got is that the gag is not across the mouth. The body is not in that position. At best what we've got is for a transient period of time, undefined, the body was face down, parts of the body were face down. CROWN PROSECUTOR: So can I just ask you to answer this as best you can. Can the explanation of airways obstruction explain the death of [the deceased] in this case? WITNESS DUFLOU: In the conditions I have given you, yes, but not as shown here and not as calculated. CROWN PROSECUTOR: So it can explain his death if he died at a point where the gag was over his mouth? Is that your evidence? Have I got that right? WITNESS DUFLOU: Yes, I think that's fair.
I first turn to the Crown's first submission in this respect. Dr I'Ons believed that the obstruction of the deceased's airways was "contributed to by the gagging, by the debris and sand and blood in the mouth and nose, by the prone position, by his arms behind his back". It was emphasised during the concurrent evidence that it was these multitude of factors, and not solely the packing tape over the deceased's mouth and/or nose, that resulted in the suffocation of the deceased.
Professor Duflou did not believe that there was any indication of airway obstruction. In response to Dr I'Ons' report, the Professor Duflou First Report stated that, if the deceased was gagged with packing tape and caused obstruction of the mouth and nose, then it is entirely possible that the deceased would have suffocated. However, the Professor Duflou First Report contended that the evidence indicates that the tape was not over the mouth at the time when the deceased was found.
For convenience, I return to the observations of Senior Detective Sergeant Moon, as follows: Located around the head of the deceased was brown coloured packaging tape. The tape had been wrapped multiple times around the head. The arrangement of tape had separated at a point near the right side of the face or right ear. The section of tape originally positions over the face was lying on the ground on the left side of the head. The relative position of both the head and the tape, indicate the tape has been released from the face in his current orientation. The breakage of the tape could have occurred prior to the deceased being moved, if the overall configuration of the tape has not substantially moved during this process. There was a void located in the centre of the tape located on the left side of the face. The position of the void when relocated back across the face would correspond with the nose. Located on the adhesive section of the tape surrounding the void was a large transfer of sand, grass debris and a small amount of congealed fluid and sand.
Senior Detective Sergeant Moon gave evidence about the position of the tape when he attended the location where the deceased was found. He stated that, when he partially put the tape over the deceased's face, but did not bring it all the way, it showed the tape fitted in the position of the tape as it is. When the two edges married up, it showed that the face, from the bottom of the chin to the top part of the nose, was bound. However, there was a small gap in that tape that corresponded to the tip of the deceased's nose. He explained that, at some point, the tip of the nose would have been exposed when the tape was fully wound around the head.
The photographs tendered in the Agreed Facts and Materials appeared to show that the opening or hole created at the tip of the nose means that the tape did not fully occlude the deceased's nose. There was, at least, a partial gap. It is plainly clear that the packing tape, whilst it was on the deceased, obstructed his breathing through his mouth. Although it was observed that the tape around the mouth was not as tight as the tape around his hands and feet, the addition of more layers of packing tape over the original packing tape had both the effect of reinforcing the original packing tape and covering a greater area on the deceased's face.
As I noted above, it was accepted by Professor Duflou that it is not necessary for the deceased's airways to be totally occluded for him to have died from suffocation.
Dr I'Ons drew upon the fact that debris and sand was found in the nasal airways and that also may have restricted air flow. This is combined with the fact that the deceased was in a prone position and thus had a greater demand for oxygen.
In my view, it is clear from the evidence that the use of adhesive packing tape from the deceased's chin to the top of the nose (except for the opening or hole at the tip of the nose) would have obstructed the airways from the mouth. However, I am not satisfied that this obstruction was the cause of death. This is because, as I will explain below, the packing tape was torn off before the accused and WD departed the crime scene; the time of death was after the departure of the accused and WD and before the deceased was found by Mr Devlin; and thus, the packing tape was no longer obstructing the deceased's ability to breathe through his mouth at the time of his death.
As Professor Duflou pointed out, the CT scan done before the autopsy demonstrated that the nasal passages were patent (meaning they were open), as well as the fact that one can see up the nostrils in the photos taken at the location where his body was found. Both these observations are significant because they demonstrate that there was the possibility for airflow.
The Crown made reference to the fact that, in a telephone conversation between LM and his parents, LM made reference to a possible finding of suffocation. I am of the view that this reference is of no assistance to the Crown. LM is not an expert in the cause of death. More importantly, I agree with the submissions of Senior counsel for LM that this was suggested to LM during the ERISP by Detective Gunn. LM may have referred to the possibility of suffocation given that the Detective asked LM about positional asphyxiation and gave him some detail about how that could have occurred.
I will now turn to the Crown's alternative explanation for the suffocation, the cushion theory. At the time of the autopsy, there was no obstruction of the airway; the oropharynx, larynx, trachea, and bronchi were clear of obstruction and there was no indication of aspiration of foreign material, secretions, or blood in the lungs.
At the outset, and as earlier mentioned, it is noted that this explanation was not mentioned in Dr I'On's report and was proffered by the Crown at a very late stage. This was put to Dr I'Ons in cross-examination as follows: STEIRN: Thank you. Now, in your oral evidence today, doctor, you gave evidence of another cause of airway obstruction was cushioning by the sand as he lay in a particular position. WITNESS I'ONS: Not so much cushioning by the sand but that sand obstructing the airways. STEIRN: I meant by that I think - well, as I understand it, as his face was in the sand, that formed a cushion, if you like, which obstructed his airway, is that correct? WITNESS I'ONS: I would say it formed a barrier. STEIRN: Formed a barrier? WITNESS I'ONS: Yes. STEIRN: Where do I find that in your original report? WITNESS I'ONS: So I talk about him being in a prone position. STEIRN: Yes, but where do we find specifically the evidence you gave today about his airways being cushioned by the sand? Where do we find that? WITNESS I'ONS: Well, I'm not sure I needed to say what is evident from his face being covered in sand and debris. He had been in a prone position. The evidence I have given is that it seems that he is in a prone position with the sand on the thighs, the knees, the shoulder, the face.
In cross-examination, Dr I'Ons emphasised that the lack of sand in the airways did not mean that suffocation was not the cause of death in the same way as if one puts a cushion on another's face and suffocated them. He likened it to taking the cushion off and then looking at the CT scan, which would say that the airways are patent.
It is noteworthy that the evidence shows that dirt was found in the mouth, teeth, and nostrils of the deceased. However, there was an absence of inhaled material such as sand, dirt or vegetable matter in the lungs and upper airways, except the mouth, teeth, and nostrils.
There was no evidence that the sand, dirt or vegetable matter ever presented itself as a wall or barrier in the deceased's nose, mouth or airways so that airflow was prevented or obstructed. As to whether the sand, dirt or vegetable matter could still have caused suffocation, I prefer the view of Professor Duflou that, if the deceased's face was forced down facing the sand, dirt, or vegetable matter, it can be expected that sand, dirt or vegetable matter would, not just be found at the nostrils or in the mouth, but inside the air passages and/or stomach. Professor Duflou stated: I don't think there's an indication of airway blockage, and I specifically preface this of course by the gag not being on the face at the time of death, but again, if there had been airway blockage, I would have expected particular material to enter the airway, not just to be around the nostrils and around the teeth but effectively to be inside the air passages and possibly even swallowed as well into the stomach.
The absence of sand, dirt or vegetable matter in the deceased's airways has created a real doubt as to the cushion theory. Based on common experience, a cushion is quite easily distinguishable from sand in the sense that the latter is very fine and small, and thus can be expected to easily pass into one's airways (and beyond the teeth within their mouth or rim of their nose) if it was inhaled when very close to a person's face.
As to the positional asphyxiation, I am not persuaded by Dr I'Ons' evidence that the deceased was held in a prone restraint position for a "significant period of time". As mentioned, Dr I'Ons did not explain how he reached that conclusion as to the deceased being in a prone restraint position for a significant period of time and did not explain what a significant period of time refers to in the context of that position.
Professor Duflou stated that his understanding of the prone restraint position is where a person is in the prone position and something was pressing down on top of them. In my view, it is significant that there were multiple blunt force injuries to the deceased's body as noted above. I accept that this is consistent with the deceased's head suffering from a heavy fall or being shoved to the ground. However, it does not prove, in the absence of other material, that the deceased was held in the ground to the point that he was asphyxiated by persons pressing down on him. I agree with Professor Duflou that the deceased's injuries do not support such a conclusion. Further, as Professor Duflou observed, some essential criteria to demonstrate the existence of restraint asphyxia were missing in this case, including any objective evidence of the accused (or WD) putting pressure on the deceased's trunk. I accept Professor Duflou's analysis as to the absence of key factors to show restraint asphyxia as identified in the Steinberg Paper.
For these reasons, I reject the cushion theory as a cause of death. I will turn to the Crown's other submissions relating to asphyxia and suffocation later in my reasons.

[59]

Issue 5: Interpretation of Petechiae

The Autopsy Report stated that within the eyes of the deceased, there were faint petechiael haemorrhages in all four eyelids (conjunctiva). There were also prominent petechiael haemorrhages in the right sclera and a confluent haemorrhage in the left interior eyelid.
Dr I'Ons opined in the Autopsy Report that the fine petechiae in those locations may support a conclusion of suffocation, even though the petechiae were not specific to asphyxia death and may be associated with direct trauma. In his concurrent evidence, Dr I'Ons opined that the distribution of the petechiae was not characteristic of blunt force trauma to the eye where bigger petechiae may be found.
Both in the Autopsy Report and the Dr I'Ons Report, it was stated that the petechiae are said to be associated with an increased venous pressure in the facial structures which may be caused by struggling and screaming against an obstructed upper airway together with increased cardiac output, elevated blood pressure and fragile vasculature and inelastic surrounding connective tissue of older persons. Thus, Dr I'Ons referred to fine petechiae being observed in a case of suffocation of elderly victims.
Dr I'Ons indicated that suffocation does, on occasion, produce fine petechiae by cause of straining.
Professor Duflou agreed that even though petechiae on the eyes and face are generally not seen in cases of suffocation, they may be present in the elderly who have their external passages occluded. He indicated that this was a generally accepted view as stated by V Dimaio and D Dimaio (2001) Chapter 8; 'Asphyxia', in Forensic Pathology, Second Edition.
However, Professor Duflou correctly indicated that the deceased was aged 56 at the time of death and would not have been considered elderly. Nor were there indications that the deceased had a propensity to bleeding which would have resulted in an increased likelihood of petechiael haemorrhages developing.
It appeared to be common ground amongst the experts that the interpretation of petechiae as a forensic process was very difficult. Dr I'Ons described it as a "forensic nightmare". There are a very large number of circumstances which may be associated with petechiae, some but not all of which have asphyxial components to them, such as suffocation. Professor Duflou opined that petechiae are not specific to asphyxia deaths and the act of airway compression is not one which causes petechiae. This is because petechiae are caused by a raise in venous pressure, an opinion held in common with Dr I'Ons.
Whilst it would also appear to be a common opinion that suffocation is typically not described as a cause of petechiae, the more significant observation by Professor Duflou was that "suffocation itself does not cause a rise in venous pressure". Thus, the illustration of the cushion effect of sand given by Dr I'Ons could not be productive of particular haemorrhages in the eyes but rather in the lungs, such that the petechiae would be seen over the surface of the lungs because of the attempt to breathe through obstructed airways.
From this discussion, I accept, overall, that petechiae are uncommon in suffocation. There is medical literature indicating the existence of fine petechiae found in the suffocation of elderly victims, but the deceased is not such a person. Having regard to the tentative manner in which Dr I'Ons proposed the relationship between petechiae and suffocation, the fact petechiae are generally not seen in cases of suffocation, the standard teaching on the subject that petechiae are not a feature of airway compression and the particular issue raised by Professor Duflou that suffocation does not cause a rise in venous pressure, I consider that there are considerable doubts that the petechiae identified in the Autopsy Report support a conclusion of suffocation, or positional asphyxia.

[60]

Issue 6: Cause of Death

In concurrent evidence, Dr I'Ons identified a cause of death as follows: 1. Cause of death is craniofacial trauma with airways obstruction. Those elements were relied upon in combination to establish cause. 2. There is a distinction between the cause of death and the mechanism of death. The mechanism is the physiological process that underlies the cause of death. In some cases, that physiological process is obvious, such as a gunshot. However, there are some mechanisms which leave no mark at all. Suffocation is such as an example. 3. In cases such as suffocation, "the circumstances and the sites and the history are very much an important part of determining the cause of death". 4. In terms of mechanisms, Dr I'Ons first identified that the deceased was in a prone position with his hands tied behind his back. This produced a physiological change by a reduced oxygen intake. The reduction is not "massive", so the other change is reduction in cardiac output, namely, the heart is not pumping as much to areas of activity that it normally does so the heart is pumping less blood. The venous return to the heart means that the heart reduces the amount of blood it can pump out which means the tissues are not well provided with blood which, in turn, results in the production of metabolic acidosis. When metabolic acidosis reaches a certain level, it is dangerous to the heart and results in systolic cardiac arrest or PEA. Studies on restraint type struggle resulting in death point to the increased oxygen demand, the need for higher levels of oxygen consumption and the resulting inability to take oxygen in with the heart not delivering oxygen to the body. 5. The additional consideration is the head injury of the deceased resulting in him being unable to look after his airway with an accumulation of secretions and dirt within his airways, with perhaps the presence of gagging. 6. As to gagging, when asked whether gagging was one of the factors taken into account as a mechanism, Dr I'Ons emphasised that death was through suffocation caused by airway obstruction which was contributed to by the gagging, the debris and sand and blood in the mouth and nose, by the prone position and by the arms being tied behind his back. 7. It was accepted that if the airways were not obstructed then the deceased would probably be alive and other causes of death would need to be ascertained. 8. As to the deceased being unconscious, the drag marks at the crime scene indicate the deceased was either unconscious or deceased when so moved.
Professor Duflou's opinion as to the cause of death commenced with his Supplementary Expert Opinion. That opinion was as follows: 1. At (17) of the Supplementary Expert Opinion: In this case, I do not believe that the bound ankles and wrist played any role in the death, and they would certainly not be considered a feature of restraint of the type associated with restraint-related deaths - those cases typically have pressure on the person's trunk while in the prone position, with associated difficulties breathing and various cardiovascular and metabolic effects. As indicated in my earlier report, the deceased may well have been restrained and I cannot positively exclude the possibility of positional/restraint asphyxia in this case. However, it remains my opinion that there is no positive evidence at autopsy for this having occurred. 1. At (18): There was injury to the head, indicative of a physical assault with application of multiple applications of force to the head. The postmortem report however indicates there was no identifiable injury to the brain and its coverings which would be expected had death been the result of a traumatic head injury. Overall, the features indicate applications of not more than moderate amounts of force to the head. It is therefore my opinion that it cannot be stated with any degree of certainty that the injuries to the head caused or contributed to death. 1. At (19): There was sand and debris around the mouth and within the nasal passages and in the mouth, and there was a fracture of the nose, and it is possible that at some time the tape found on the head may have covered either or both the nose and mouth. It is also the case though that the exact position of this tape over the front of the face included a void of the nose (as per the statement of [Detective Senior Sergeant] Moon) suggesting the nose was not occluded. There was however no obstruction of the airway at the time of autopsy, and presumably at the time the body was found at the scene. Importantly also, the oropharynx, larynx, trachea and bronchi were clear of obstruction, and there was no indication of aspiration of foreign material, secretions or blood in the lungs. I therefore disagree with Dr I'Ons that airway obstruction had to be present in this case, and in conjunction with the head injury much have been the cause of death. I note the comments made by Dr I'Ons in relation to purge fluid - there are no indications this decompositional fluid was present. 1. In this case, the level of methamphetamine was such that it was at a level typical of death due to methamphetamine, accepting that it was not possible to state that death would therefore have been the result of methamphetamine in this case.
In concurrent evidence, Professor Duflou expressed the following supplementary opinions: 1. The deceased may have been in a prone position as indicated by dirt in his teeth, dirt in his nostrils, injuries to the front of his shoulders and dirt embedded in the front of his thighs and knees. However, Professor Duflou did not agree that the deceased was in a prone restraint position and that he died as a result. 2. The dirt found in the deceased's nose and mouth did not compromise his ability to breathe. 3. He could not exclude that the deceased's face was pushed into the sand but there is no evidence that that did happen. It may have happened as a result of the deceased falling into the sand where there was a physical altercation. 4. As earlier mentioned, Professor Duflou did not consider the elements of restraint asphyxia identified in the Steinberg Paper operated in this case. 5. Professor Duflou did not accept that the deceased was necessarily unconscious or dead at the time that he was moved to his final position. There is a third possibility that the deceased was conscious but bound. 6. There was no indication of the body having been in a prone position to cause death. There was not any indication of the deceased being in such a position and having been prevented from moving from that position. Subject to the gag being on the face at the time of death, there was no indication of airway blockage. If there had been airway blockage, it would be expected that particular material would enter the airways not just around the nostrils and around the teeth but inside the air passages or swallowed into the stomach. 7. If a person is simply on their stomach without additional restraint, typically at the force of compressive restraint on the body, and even with considerable compressive restraint, the cardiac venous return is not physiologically significant. Oxygen levels remain the same in blood and acidosis does not form. There has been blunt force injury to the head but not the type which may be expected to result in death. The heart was normal but that does not mean a person cannot die from a heart condition or the effects of substances, environmental conditions etc. on the heart.
As to the time of death, Dr I'Ons stated that a time frame for death was known because it is known when the deceased died and when he was found. He opined that the exact time frame when the deceased died is not entirely relevant to the cause of death identified by him.
As to the time of death and its significance, Professor Duflou gave the following evidence: 1. The deceased died between 3.33pm and 4.45pm. 2. The accused walked through the bushes, arriving home at 4.30pm. 3. That analysis is productive of an interval of 57 minutes. 4. Sergeant Catto-Pitkin calculated the distance from the crime scene to WD's home as 2.144km and that it took between 35 minutes 30 seconds and 40 minutes 30 seconds to walk the route. 5. If 35 minutes 30 seconds to 40 minutes 30 seconds is subtracted from 4.30pm, it establishes that the accused would have left the crime scene somewhere between 3.50pm and 3.55pm. 6. On that analysis, the accused would have been at the scene between 17 and 22 minutes. 7. If the deceased died then at the time when the accused were present, it would be expected that β-APP positivity would not have had enough time to develop because it takes 30 to 35 minutes. 8. As a result, the deceased would have died after the accused left the crime scene.
If the gag had been removed from the deceased prior to the accused departing the crime scene and before his death, the deceased could not have died from airways obstruction because his mouth was open or able to be opened "readily". In any event, his nose was not "obviously" blocked. The deceased was not in a face down position and his airway was unobstructed which "means that airway obstruction cannot, under those circumstances using those parameters, be the cause of death".
At best, according to Professor Duflou, "what we've got is for a transient period of time, underdefined [when] the body was face down, parts of the body were face down".
As to prone restraint, and based on the numerous studies in the area, a number of points need to be made: 1. The actual increase in oxygen intake is, from a physiological perspective, negligible, unless there is significant lung disease or other cardiac pathology. 2. Research studies in Canada show that the death rate from arrests did not decrease or increase as a result of a change in police procedure from one where the offenders were initially placed in a prone position and restrained to a changed procedure where the offenders were placed in a face up position. The death rate was the same for both groups. This demonstrated that a prone restraint, on its own, was not something which kills any more than a supine position.
I will revisit these issues in my final deliberations.

[62]

The Crown's Submissions

In summary, the Crown made the following submissions in relation to methamphetamine toxicity: 1. The experts agreed that methamphetamine can be present in a person who has died where the death is unrelated to methamphetamine. 2. The deceased regularly used methamphetamine over a long period of time. He had not slept the night before the incident, drugs were found in his car. The Crown accepted that the "two shots" were likely to be methamphetamine, albeit of a small amount (there is talk of using drugs on the Grindr chat). The deceased was functioning before the attack in a sense that he was driving, texting, and making plans as well as shopping. 3. Methamphetamine is a commonly used drug in the community. However, death is not common from the use of the drug having regard to the rate of use in the community. Higher rates of methamphetamine found in the deceased have been observed in people who had used methamphetamine but had not died. 4. There is no correlation between the amount of methamphetamine and its toxicity or its effects. The concentration of methamphetamine in the blood does not determine whether the consumption of methamphetamine causes death. 5. Where death does occur, it is usually in the context of heart disease, multiple drug use or other health issues; particularly because the effects of methamphetamine are similar to adrenaline by producing increased heart rate, increased blood pressure and an increased need for oxygen. 6. Deaths from methamphetamine toxicity alone are rare although there are occurrences of such an event. The effects of methamphetamine on the body are similar to the stress reactions which would have been experienced by the deceased before he died. 7. As was stated in the Logan Report, caution must be exercised against reliance being placed on a concentration of methamphetamine in the blood of a deceased. All circumstances need to be considered. 8. Methamphetamine toxicity cannot be looked at as a possible cause of death unless all other causes are ruled out. They cannot be ruled out in the circumstances of this case. 9. Dr I'Ons stated: 1. Methamphetamine may operate in the background but is not causative. 2. There must be caution about relying on "concentration only". 3. It is not appropriate to say that because the level of the drug could be fatal, that it was fatal. 4. There is no correlation between methamphetamine concentration at autopsy and toxicity. Context is important. Methamphetamine toxicity cannot be looked at as a possible cause of death unless all other causes are ruled out (they cannot be ruled out in this case).

[63]

AN's Submissions

AN submitted that the Crown case seemed to be that the methamphetamine and other drugs found in the deceased acted as "background only" and could not be the cause of death. The evidence of Dr I'Ons rested upon the basis that he could only conclude the death occurred from methamphetamine if all other possible causes of death had been excluded. There is no medical foundation for this approach.
In contrast, the Steinberg Paper stated that there must be a clear exclusion of other causes of death based on findings from the autopsy. AN submitted that that conclusion could not be reached in this case: 1. Dr I'Ons did not know that the deceased had methamphetamine in his body at the time of the autopsy and only learnt that at a later time. He should have revised his medical opinion upon learning that fact, however, he did not do so because of an unwillingness to reconsider his position. 2. Dr I'Ons ignored his own practice of finding methamphetamine as the cause of death, even if he had excluded all other possible causes of death. He went on to state that there might be no cause of death ascertained. 3. It is true that the experts agreed that in many cases persons who die of methamphetamine overdose have cardiac disease. However, Dr I'Ons took the view that, because the deceased did not appear to have cardiac disease, and that there was an alternative cause of death, the deceased did not die of methamphetamine overdose. In contrast, Professor Duflou stated that methamphetamine toxicity in this case was reasonably attributed as the cause of death because of the level of the drug in the deceased's blood. He gave evidence which said that the level was "right in the centre of where you would expect it to be in cases of overdose on amphetamines". 4. As to studies on animals relating to increasing doses of amphetamine, Dr I'Ons did not provide the correct name of the paper he relied upon and Professor Duflou observed serious problems with the study Dr I'Ons appeared to cite. It did not provide research support for the proposition that methamphetamine does not kill unless there is heart disease. 5. The Crown had not proven beyond reasonable doubt that the cause of death was head injuries and airway obstruction or excluded that methamphetamine overdose could reasonably be attributed as a cause of death.

[66]

The Professor Duflou Report

Professor Duflou agreed with Dr I'Ons that many studies had shown no difference between methamphetamine levels in cases where methamphetamine toxicity was considered to be the cause of death and in those where there was another cause of death including traumatic injury. He further observed that, in all likelihood, the amphetamine detected in the deceased's post-mortem blood was a metabolite or break down product of methamphetamine.
Professor Duflou's opinion was that the level of methamphetamine found in the post-mortem blood of the deceased was such that, in the absence of any other competing cause of death, it could be reasonably stated that death would have been due to methamphetamine toxicity. In a recent large study, where Professor Duflou was a co-author, the median level of methamphetamine in blood where the cause of death was considered solely due to methamphetamine toxicity was 0.54 mg/L, but with a range of 0.02 - 22.0 mg/L.
In another study where Professor Duflou was a co-author, 1,600 deaths were examined where drugs may or not have contributed to death. It was shown that methamphetamine levels were found to have median concentrates of 0.15, 0.20, 0.20, 0.15 and 0.17 mg/L in accidental drug toxicity, natural diseased fatalities, non-drug related fatal accidents, suicide cases and homicide cases respectively.
Professor Duflou further opined that, in the present case, the deceased had a level of methamphetamine that was between two and three times higher than the median where other drugs were involved in death, including those death where the forensic pathologist determined the cause of death was a result of accidental overdose. Even in those cases where the death was considered solely due to methamphetamine toxicity, the median level of the drug found in those cases approximated that found in the deceased's blood (0.52 mg/L versus 0.42 mg/L).
Injuries sustained by the deceased may "in some way have caused death" but there were no features of the injury which raised it as more than a reasonable possibility.
As to cannabis intoxication, Professor Duflou concluded that that substance played a very minor role, to no role, in the cause of death of the deceased. As to the GHB, Professor Duflou concluded the relevance of GHB level in this case could only be determined once it is known whether the deceased consumed GHB in the time leading up to death. It is only in those circumstances that it may become possible that the drug contributed to death.

[67]

The Professor McGregor Report

Professor McGregor used the expressions "methylamphetamine" and "methamphetamine" interchangeably.
Professor McGregor opined that the deceased in the current case had been restrained by packing tape around his wrists and ankles, this stress, perhaps in conjunction with a high temperature on the day and a high blood level of methamphetamine, may have been a contributing factor to the deceased death (although, he accepted that if the temperature had been 20 degrees, rather than 33 degrees as appeared in his report, it would have diminished the effect of temperature in that conclusion).
Professor McGregor considered that blood concentrations of methamphetamine do not always clearly differentiate users who are alive and those who are deceased and that methamphetamine undergoes substantial post-mortem redistribution, meaning that concentrations in blood and tissue from deceased persons may not necessarily represent those that are present before death. He considered that the post-mortem concentration identified in the Autopsy Report for the deceased was in the "higher range of typical concentrations found in the blood of users of the drug when alive".
Professor McGregor stated that the analysis of methamphetamine-related deaths in Australia from the national coronial information system database noted that the majority of these deaths (43.2%) were due to accidental drug toxicity and occurred mostly in males (78.4%) with an average age of 36.9 years. The median post-mortem blood concentration was 0.3 mg/L in deaths in which methamphetamine was the only drug detected and 0.15 mg/L where additional drugs were detected. It was concluded, therefore, that the concentration of methamphetamine in the blood of the deceased was consistent with the cause of death being drug induced toxicity, although other causes of death could not be ruled out. He also agreed with Professor Duflou that the presence of amphetamine in the post-mortem blood sample of the deceased most likely reflected the metabolism of the methamphetamine parent compound.
In concurrent evidence, Professor McGregor accepted the opinion of Dr Drummer that a person can have a reaction in the nature of a heart attack to methylamphetamine without any contributing factor or cause, albeit the cases are rare. He observed that where there are a multiplicity of drugs involved, the cases are more common, so he also considered that additional factors of stress and anxiety with methylamphetamine toxicity could be "particularly dangerous".
Professor McGregor did not agree with the proposition advanced by the Crown that there was no correlation between the level of methamphetamine in the blood and harmful outcomes, stating that there is a clear intersection between blood levels of people who are alive and people who are dead, although the higher in the range, the higher likelihood of death. As to tolerance, he repeated that with respect to the phenomena of "sensitisation" and depending on the measure that is being undertaken, it is possible to see the effects of methamphetamine become more pronounced over time.
As to whether methamphetamine deaths are associated with cardiovascular pathology, Professor McGregor indicated that he would defer to Professor Duflou's opinion. He observed that some people die from methamphetamine where there is no obvious cardiovascular pathology.
Professor McGregor agreed that the literature indicates that physical restraint of individuals exhibiting stimulant induced agitation is strongly associated with increased mortality. He agreed that methamphetamine together with restraint of an individual would increase the change of "lethality". Professor McGregor agreed in cross-examination that the combination of methamphetamine intake and restraint did not itself constitute a basis upon which a person may die from methamphetamine ingestion.

[68]

The Dr Drummer Report

In the Dr Drummer Report, Dr Drummer indicated that his opinion on the role of methamphetamine did not differ substantially from those of Professor Duflou and Professor McGregor, in that he could not rule out a contribution of a fatal cardiac event that may have been exacerbated by the presence of methamphetamine in the deceased in the context of a craniofacial trauma with airway obstruction. He opined that no clear distinction could be made concerning the likelihood of a methamphetamine in blood causing sudden death, particularly in the absence of any particular natural disease or relevant contributing drugs. He discounted GHB as a contributor to death. He also found that in the circumstances of this particular matter it was unlikely that cannabis would be a significant contributor to the death of the deceased.
Further, in cases where methylamphetamine is seemingly associated with the cause of death in the absence of significant observable heart disease and drugs, the possibility of susceptibility to cardiac arrythmias due to an underlying weakness in the conduction system of the heart is possible. Agitation, extreme stress including restraint and or possible impairment of breathing can also lead to hypersecretion of catecholamines affected by increased cardiac output and other stresses on the cardiovascular system. This can lead to potentially fatal ventricle arrythmias. However, fatal arrhythmic events can and do still appear in the absence of methylamphetamine.
Toxic responses from methylamphetamine leading to death in adults are uncommon but have been reported with most reports of death from use of methylamphetamine showing blood concentrations greater than 2.0 mg/L. These usually occur in the presence of significant heart disease, often likely to have been caused by chronic stimulant use. In a small number of cases, a major haemorrhage can occur, that is, in the brain or a major blood vessel, leading to sudden death.
Post-mortem blood concentrations of methylamphetamine, as it is of essentially all drugs, are usually different to what they were at the time of death, irrespective of the cause of death.
In oral evidence, Dr Drummer indicated that death from heavy doses of methamphetamine by itself without any associated factor is very uncommon. However, he agreed in cross-examination that, while toxic responses from methamphetamine lead to death in adults is uncommon, it does not mean those deaths do not occur. Stress or anxiety by itself can lead to arrythmia if the person has taken methamphetamine, if there is a slight abnormality in the heart.
At 4.2 mg/L, there is a high chance of a "very high concentration" of methamphetamine but there is no correlation such that concentrations of that level do not necessarily result in fatality. Dr Drummer considered that to make such an assessment it is necessary to conduct an autopsy based on all the information including the information as to the intake of drugs.
Dr Drummer was of the view that if a person using methamphetamine is subject to extreme stress including restraint or restriction of airways, that it was not possible to separate the effects of those factors. Methamphetamine may have the role in the sense of exacerbating other effects. I will return to Dr Drummer's evidence after considering Dr I'Ons' toxicology report and Professor Duflou's Supplementary Opinion.

[70]

The Professor Duflou Supplementary Opinion

In the Professor Duflou Supplementary Opinion, Professor Duflou refers to the Dr Drummer Report, Dr I'Ons' Toxicology Report, the research report at the Victorian Institute of Medicine (which Professor Duflou referred to as the "Pilgrim study") and three studies as follows: 1. S Karch and B Stephens, 'Methamphetamine-related deaths in San Francisco: demographic, pathologic and toxicologic profiles', Journal of Forensic Sciences (42, 2) (1999); at 359-368 (the "Karch Study"); 2. The Logan Paper; 3. Two studies in which the author was Shane Darke, including the Darke Paper of which Professor Duflou was a co-author.
Reference was also made to a paper by Professor Duflou where he was invited to contribute to a peer-reviewed paper for a publication known as 'Addiction', where he described current issues in relation to heart disease in persons who use methamphetamine and other psychostimulants.
By reference to para (7.14) of the Dr Drummer Paper, Professor Duflou disagreed with the opinion expressed by Dr Drummer that blood concentrations of methamphetamine greater than 2 mg/L are usually seen in cases of death from the use of methylamphetamine.
The rationale for that opinion was as follows: 1. The Karch Study stated that the "mean" in the group whose death was due to methamphetamine intoxication was 2.08 mg/L and for deaths due to causes other than methamphetamine but where the drug was present was 1.78 mg/L. However, the distribution of concentration is not uniform, with the overall median level of the drug in that study being 0.19 mg/L, or around a tenth of the mean. In other words, this is a highly skewed distribution with a relatively small proportion of cases with very high levels of methamphetamine skewing the mean upwards - in such cases, reporting of the median and not the mean is more important. 2. The Logan Paper reported 13 cases where methamphetamine was the cause of death. The median in that series was 0.96 mg/L, with a range of 0.09 to 18.0 mg/L. Where other drugs were present, the median lethal level of methamphetamine was 0.37 mg/L. 3. The 2018 Darke Paper reported on deaths where methamphetamine toxicity/overdose was given as the sole cause of death, and found the median level of 0.54 mg/L, with a range of 0.02 to 22.0 mg/L.
Overall, Professor Duflou opined that the median level, taking these studies together, was less than 1 mg/L, and in the Darke studies specifically, only 21% of cases where death was considered to be solely due to methamphetamine overdose, had a methamphetamine level above 2 mg/L.
Professor Duflou also disagreed that methylamphetamine toxicity usually occurs in the presence of significant heart disease, often caused by chronic stimulant use and in a small number of cases the cause of death being bleeding in the brain or from a major blood vessel. The Darke Paper specifically looked at that issue. It did not find that these factors necessarily "played a significant role or necessarily could be viewed as a cause of death". That study based the cause of death determination on the opinions and conclusions of the relevant forensic pathologists who did the autopsy and the coroner who made the final determination of death. The authors did not themselves make an assessment of the cause of death. Severe coronary artery narrowing was found in only 12.9% of cases, the heart was enlarged in 31.1% and there was scarring in 25.7%.
As to Dr I'Ons' toxicology report, Professor Duflou considered that Dr I'Ons agreed with Dr Drummer but ignored the data from the "two Darke papers". Dr I'Ons had placed reliance on the Karch Study, to contend that the deaths caused by direct effects of methamphetamine were characterised by the presence of other health issues such as pulmonary oedema. However, in fact, the study reported that there was a severe coronary artery disease in 5.8% of cases and in a further 10.2% of cases there was a moderate coronary artery disease. He concluded that the data considered in the paper did not support the assertion that methamphetamine deaths were characterised by increased heart weight and only a small minority were found to have severe coronary heart disease.
Professor Duflou agreed with Dr I'Ons that there was no significant heart disease in the deceased but opined that the absence of heart disease did not exclude death due to methamphetamine toxicity in a person where the blood level of methamphetamine is 0.42mg/L. He also stated that the absence of contraction band necrosis mentioned by Dr I'Ons in arguing against death being due to methamphetamine toxicity was not based on evidence in peer-reviewed literature.
Overall, Professor Duflou disagreed with Dr I'Ons' assessment that methamphetamine's may be dismissed as a causal factor given the lack of cardiac disease, based on the research studies to which he referred. The research studies indicated that "an absence of significant (or even any) cardiac disease is seen in many and arguably most cases of death due to methamphetamine toxicity".
Professor Duflou's final conclusion was stated as follows: The toxicological findings are predominantly those of a level of methamphetamine and its breakdown product amphetamine which is entirely capable of having caused death on its own. The other substances detected probably did not play a major if any role. In this case the level of methamphetamine was such that it was at a level typical of death due to methamphetamine overdose, accepting that it is not possible to state that death would therefore have to be the result of methamphetamine in this case. However, in the absence of other definite cause of death, it remains in my opinion that methamphetamine overdose is a reasonable cause of death and one which cannot be positively excluded as the cause of death in this case. It is also my opinion that the absence of significant heart disease dose not exclude methamphetamine toxicity as a cause of death.
In his concurrent evidence, Dr I'Ons opined that he did not accept there was a reasonable possibility that the deceased died as a result of his ingestion of methamphetamine.
Dr I'Ons stated that, when methamphetamines cause death, generally speaking, the persons dying have an existing heart disease such as coronary artery disease. In the absence of coronary artery disease, afflicting heart muscle or fibrosis of the heart, "a sudden arrest because of methamphetamines is not a common occurrence". None of those factors were present in the case of the deceased although, because the deceased was involved in "combat", the existence of methamphetamine, as a "stimulus" would not be "helpful", because there was already a demand for oxygen caused by the exertions around that "combat scene". The effects of methamphetamine would have a similar effect, increasing heart rate and oxygen demand, as to being assaulted.
Dr I'Ons identified that the reason for his conclusion that methamphetamine did not represent a reasonable possibility as to the cause of death of the deceased was twofold. First, there was a lack of underling cardiac disease and secondly, there was a presence of another cause of death. The concentration of the drug in the blood of the deceased (at 0.42mg/L) "doesn't matter when it comes to determining the cause of death" because some persons have died with very low concentrations and other persons have survived with high levels. Methamphetamines can cause death at any concentration.
Dr I'Ons conceded that, if the deceased only had methamphetamines in his blood "and nothing else, he was uninjured, unbound, then I'd be happy to say the cause of death was methamphetamines".
In concurrent evidence, Professor Duflou stated that methamphetamine had a very poor dose response relationship. In order to determine whether a person died from methamphetamine overdose or not at post-mortem, what is necessary to be done is to take into account "the level of the drug". In this case, the level of the drug is in the centre "of where you would expect it to be in cases who have overdosed on methamphetamines". By this, Professor Duflou was referring to the median. He observed that it was necessary to consider where the deceased's blood concentration lay relevant in various medical research because there was a "very skewed distribution of levels of the drug". There is not a typical bell curve distribution. The result is that the consideration of the mean "doesn't work".
Professor Duflou stated that, in the Logan Paper for the drug-cause group, where methamphetamine was present in combination with other drugs, the median methamphetamine level was 0.37mg/L (that group consisted of 25 cases). In the sub-group where methamphetamine alone was present and was considered to be the cause of death, the median level of the drug was 0.96mg/L (this was in a range of 0.09 - 18.0 mg/L). Where death was due to methamphetamine toxicity with a contribution by natural disease, the median level of the drug was 0.39mg/L.
Whilst the Logan Paper stated that the mean was 2.08mg/L for those where death was due to methamphetamine toxicity and 1.78mg/L for those where it was incidental to death, the median level for both groups, but not individually, was 0.19mg/L. In the Logan Paper, the authors looked at all cases together in the abstract and gave a median value of 0.42mg/L which is exactly the same value as found in the deceased in this case. 90% of the population had a concentration of less than 2.2mg/L.
Next, Professor Duflou referred to the Darke Paper. In the Professor Duflou Supplementary Opinion, it was indicated that the Darke Paper (in an earlier paper in 2017) resulted from a study of deaths which occurred in Australia between 2009 and 2015 extracted from the National Coronial Information system. The 2017 study separated cases into accidental drug toxicity, natural disease, and accidents, excluding accidental overdose, suicide and homicide in the case of the examination of deaths where methamphetamine was detected (in the 2017 Darke study) and where methamphetamine was the cause of death (in the Darke Paper). The 2018 Darke Paper found the median level of methamphetamine to be 0.54mg/L in methamphetamine overdose cases whereas 0.11mg/L where multiple drug toxicity was involved.
Professor Duflou agreed with Dr I'Ons that heart disease is a frequent accompaniment to methamphetamine long term use as the drug has an effect on the heart and specifically on blood vessels. Professor Duflou agreed that in many people who die from methamphetamine overdose there is cardiac disease. However, methamphetamine is a toxic substance and persons who take the drug may overdose and die. Here the deceased was "in the middle of overdose levels". It is then necessary to look at other factors, but in the present case there are "good arguments against them having caused or contributed to death".
The direct toxic effect of methamphetamine on the heart muscle cells causing cardiac arrythmia is the primary problem with methamphetamine overdose. Professor Duflou agreed that stress, whether physical or mental, can increase the heart rate and have a similar effect to methamphetamine in that respect. It is important to remember that methamphetamine not only increases cardiac oxygen demand but also increases the breathing rate. In cross-examination, Professor Duflou agreed that persons consuming methamphetamine may die at lower and higher concentrations, confirming that there is a poor dose response relationship. However, he considered the level to be instructive because the level that the deceased died at is a level at which people overdose on methamphetamine and die.
When asked if it was relatively rare to see a normal heart in cases of fatality relating to methamphetamine only, Professor Duflou responded: In terms of age-appropriate heart, which I think is a more appropriate term, rather than an absolutely normal heart, you probably see it in 30-40 percentage of cases, I would say.
He indicated that that was an estimate he would give. Professor Duflou agreed that the average age of persons dying from methamphetamine overdose alone was 36.7 years with a range of 19-38 years, with 80% of the cases being male.
Professor Duflou was then asked about the coexistence of stress and anxiety resulting from the assault and related adrenaline effects and the effects of meth. His evidence in that respect was as follows: If those things are both present, would you agree that it could not be that methamphetamine alone is a reasonable cause of death in this situation? No, I disagree. I mean the alternative that has been suggested is methamphetamine had no effect on this case, you know, it was a negligible, if any, effect.
He continued that he considered that methamphetamine "did have an effect here". He could not be absolutely certain about that view but, "there is certainly enough here for the methamphetamine on its own to cause death and that the other abnormalities are, with all due respect, not that impressive".
After the conclusion of Professor Duflou's evidence, Dr I'Ons made the following observations: 1. Dr I'Ons posed the question as to whether methamphetamine was a cause of death, or the cause of death was just drug related. He considered that methamphetamine was just a bystander. 2. The Logan Report emphasised that conclusions must not be reached based on the concentrations of amphetamines. Neither toxic nor therapeutic concentrations should be used in isolation to establish conclusively whether death was caused by methamphetamine. Proper classification of deaths involving methamphetamine require complete death investigation, investigation at the scene, the circumstances of the death and a complete autopsy. 3. All of the studies referred to by Professor Duflou concerned the death of persons. There was an examination of the concentration of methamphetamine upon the death of them. The only way to really test the effect of methamphetamine on the heart would involve tests being done on volunteers and as that cannot be done, there would need to be tests done through animals. Such a study was carried out in 2019, where methamphetamine was given to animals. In none of those cases did the methamphetamine cause a fatal cardiac arrythmia. At this juncture, objections were taken as the reference to the study had not been previously given by Dr I'Ons. He identified that the article to which he referred was in a journal called Atrial Thrombosis and Vascular Thrombosis and that the article was written by Mr G Christopher and Mr Nichols in September 2019. After some further short observations by Professor Duflou, it was common ground that Professor Duflou would produce a further report which became the Professor Duflou Further Supplementary Report, to which I will now turn.
Professor Duflou drew attention to three additional papers: the Kevil Paper, the Dawes Paper and the Dominic Paper.
The conclusion reached by Professor Duflou through that further research was as follows: I conclude that my review of the listed material, which is in part based on the evidence of Dr I'Ons, has not altered my opinion that death can reasonably be attributed to methamphetamine toxicity in this case. Also, I do not believe this material can be used to support the assertion that administration of increasing doses of methamphetamine to experimental animals does not result in drug overdose - I have not found any research which specifically examines this issue.
The Dawes Paper resulted from a study partly funded by the Taser Corporation which examined the effect of taser shock administration to anaesthetised sheep who had previously been administered methamphetamine intravenously by slow intravenous bolus. Professor Duflou observed that, if Dr I'Ons was in fact referring to this study, then he was correct to state that despite increasing doses, none of the animals died from methamphetamine overdose. However, the study did not investigate overdose, the number of animals was small and, of those sheep, only four received a dose which was potentially in the vicinity of that consumed by the deceased. No animals were administered higher doses. Professor Duflou did not believe this study could be used to support an assertion that administration of increasing doses of methamphetamine to experimental animals does not result in drug overdose.
In further evidence, Professor Duflou indicated the following: 1. It is likely that the paper by "Christopher" referred to by Dr I'Ons was a reference to the Kevil Paper. 2. That paper itself does not relate to any animal experiments. It is simply a review paper. It does, however, refer, in one section, to an animal experiment. 3. The Kevil Paper referred to the effect of methamphetamine upon the heart. However, the authors identified cardiovascular disease as the second most common cause of death in methamphetamine abusers. The most common cause is accidental poisoning. 4. There were some major problems identified with the Dawes Paper . Professor Duflou indicated that, in fact, the experimental study showed that methamphetamine actually provided a protective effect on the heart in tasering. 5. Professor Duflou then attempted to replicate the Dawes Paper study by identifying possible consumption of the deceased of methamphetamine based on body weight and the level of blood concentration which he estimates to be 100mg. The animals received a dose higher than the deceased based on that analysis which Professor Duflou indicated may cause a calculation difficulty for pharmacologists. He continued his criticism of the paper and indicated that he was unaware of autopsies that had been done on any of the sheep. 6. During cross-examination, Professor Duflou pointed to a number of problems with the Dawes Paper, including the small number of cases studied, the capacity to rely the effects of methamphetamine on humans to those on animals and that the animals examined were of variable size. 7. Professor Duflou agreed that his calculation as to the amount of methamphetamine found in the deceased may not necessarily be valid. 8. As to tolerance, he considered the relevant definition was the ability of an organism to be able to sustain higher levels of the drug relevant to a naïve user, although he considered that tolerance can be lost rapidly with many drugs.

[72]

DELIBERATIONS

Having regard to the aforementioned discussion of fact and law and the submissions of the Crown Prosecutor and senior counsel for the accused, my final deliberations with respect to the murder charge faced by the accused are as follows.
The deceased's vehicle was driven by the deceased in the company of AN and parked on the powerline easement at 3.33pm on 2 February 2020. The deceased was assaulted at or about the circular area where the soil had been disturbed near the driver's side door of the deceased's car. In particular, the assault by the accused and WD upon the deceased occurred between an area of new disturbance in the soil substrate identified by Marker R and the area of live and dead grass at Marker S, as per the analysis of Detective Senior Sergeant Moon.
There was DNA material in the deceased's fingernails and on the singlet of AN. It should be noted there was an injury on AN in the photograph of him taken the next day. The Crown correctly submitted that that photograph shows a swollen right hand and a mark on AN's chest. LM's fingerprints were found on the tape around the deceased's ankles.
The assault upon the deceased by the accused and WD was extensive, with most of the blows occurring to the deceased's head, resulting in craniofacial trauma. Dr I'Ons described the multifocality of the injuries. The deceased was also struck by a shoe or a stick.
As was discussed in the second issue for concurrent expert evidence, the deceased suffered mild, traumatic axonal injury to the brain caused by the brain rotating within the skull as a result of significant blunt force trauma. It is likely that the brain injury would have resulted in the deceased being concussed, although the degree of concussion is unknown. Typically, a person who experiences trauma of this kind may be either unconscious, albeit briefly, or dazed. The Crown submitted that this could have happened early in the assault, which is a plausible proposition, but just how easy is unknown.
There was an injury to the deceased's forearm that was a classic defensive injury. It may be inferred that the defensive injury must, therefore, have occurred prior to the deceased's arms being bound behind his back.
The photographic evidence and the evidence of Detective Senior Sergeant Moon revealed that there was dirt, sand, and vegetable matter on the deceased's face, in his nostrils and his teeth (ingrained near the area of his gums).
The deceased's hands and knees had extensive exposure to dirt, as demonstrated by photographic evidence. A reasonable inference that can be drawn from that evidence is that the deceased's hands were in the dirt prior to him being bound. It may well be that he was on his hands and knees at some stage during the assault.
Senior Detective Sergeant Moon also opined that the transfer of sand and grass onto the adhesive section of the tape occurred after the deceased's face came into contact with the sand and grass. Bodily fluids and/or sweat would need to be present on the deceased's face for a large quantity of sand and grass debris to adhere to the face and subsequently transfer onto the tape.
The Crown submitted that the Court should infer that the deceased was assaulted leading to sweat and blood coming to his mouth and face. The deceased's mouth and nose were wet when his face went into the dirt and, thereafter, packing tape was placed over his mouth. That explains why the dirt was on the adhesive side of the tape. I accept that submission.
I also accept Senior Detective Sergeant Moon's evidence that the substances transferred from the deceased's head and face to the tape came from the ground located near the front side of the vehicle, most probably in or about the area identified by Marker Q, whereas the soil and dirt transfer located on the front of the deceased's knees and lower legs were consistent with the area identified by Marker R.
I reject, however, that the presence of dirt in the deceased's teeth would give rise to an inference, which the Crown sought to be drawn, that his face was "pushed" into the ground. The location of the dirt in his teeth is also consistent with him falling hard, face first into the ground. This conclusion is, nonetheless, consistent with the deceased having been in a prone position at some stage or him falling onto his hands and knees during the assault.
It is logically inconsistent for the dirt, sand and vegetable matter to have come into contact (and remain on) the deceased's mouth and teeth if the packing tape was on the deceased's mouth from the beginning to the end. This much was accepted by Dr I'Ons and Professor Duflou.
The deceased was in a prone position at some stage between his arrival at the crime scene and the departure of the accused. This may be inferred, having regard to the following evidence: 1. The appearance of the front of the deceased's trousers (the top half of the trousers at the front of this thighs were extremely dirty) and his exposed knee areas; 2. The upper singlet worn by the deceased showed contact with the ground. Detective Senior Sergeant Moon gave evidence that the grass located on the front of the deceased's singlet was possibly transferred from the area identified by the Marker S; 3. This conclusion is consistent with the evidence of the forensic pathologists. Dr I'Ons identified that there was "significant anterior sand and debris showing that [the deceased] was in a prone position". The prone position, according to Dr I'Ons, explained how the sand and debris came to be on the front part of the deceased's body. Professor Duflou accepted that "so at one stage [the deceased] might have been in a prone position" before being "dragged" to where he was found.
Professor Duflou's opinion that the presence of dust or debris on the deceased's singlet and upper legs did not conclusively demonstrate that the deceased was restrained while in a prone position because the dirtiness may have occurred before or after the restraint was applied was logical and may be accepted. However, based on common experience, I believe it would be difficult to bind a person in the way the deceased was bound if they were in a supine position. Although I understand Professor Duflou's counterpoint that the deceased could have been restrained whilst seated, this appears to be little more than conjecture as there is little evidence to suggest he was constrained in that way and there was a lack of dirt and material on the rear of his body.
Dr I'Ons' opinion as to the deceased being in a face down position extended, not only to the proposition that the deceased was in a "prone position" per se, but that the deceased had been in a prone position for "a significant period of time". Professor Duflou opined, correctly in my view, that there was no evidence that the deceased must have been in a face-down position for a prolonged period of time. It is simply unknown on the evidence how long the deceased was in a prone position although it is known that he was not in a prone position for the whole of the time from his arrival until the accused departed the crime scene. That is because, at the least, the deceased was found in a supine position and, as I will mention shortly, was dragged to the position when he was found in a face-up position.
The description of being in a "prone position" is a broad, umbrella term that encompasses a variety of positions in which a person is lying face down on the ground. Within the broader term "prone position", one may be in a prone restraint position, that is, on Professor Duflou's evidence, where a person is in a prone position, their hands and feet are restrained, and there was pressing down on the trunk. A prone restraint position may result in death by positional asphyxia as that concept was defined in the evidence by reference to the Steinberg Paper. This involves the body position being interfered with or preventing ventilation or normal gas exchange; evidence that the individual was unable to move to another position; and a clear exclusion of other causes of death in the Autopsy Report.
Dr I'Ons suggested that the deceased was in a prone restraint position and that that contributed to his death by asphyxia, although it should immediately be made clear that the mere fact that one is in a prone position does not mean they are in a prone restraint position. When cross-examined, Professor Duflou accepted that the deceased was restrained because he had his arms and feet bound. However, Professor Duflou emphasised that there is no evidence of persons placing pressure on the trunk of the deceased at the same time as the restraint. The point of Professor Duflou's evidence, which was well made, was that the restraint asphyxia causes or contributes to death, not because of restraint to the limbs and the prone position per se, but also pressure being applied to the trunk of the restrained person. Further, when consideration is given to the criteria in the introduction of the Steinberg Paper relied upon by Dr I'Ons (although the paper was not produced to the Court), there is also no evidence that the deceased was unable to move to another position and it may be doubtful that there was a clear exclusion of other causes of death based on findings from the autopsy viz-a-viz methamphetamine toxicity.
I agree with Professor Duflou that there is no evidence of pressure on the deceased's trunk as required in the classic exposition of restraint asphyxia. The Crown put to Professor Duflou that the deceased's injuries to the front of his shoulders and top of his knee are consistent with the deceased being in a prone restraint position at some time during this incident and encountering such pressure. However, Professor Duflou did not consider that pressure to the trunk will cause bruising to the front of the body although the injury may be explained by a person in a prone position moving, or being dragged, against the surface that they are lying on. Based on common experience, I agree that a person does not, without more, get bruising from simply lying on the ground. Again, bruising would be unusual, as suggested by Professor Duflou, to the shoulders if a person's hands were tied behind their back in a restraint position unless there was some extra, additional force, such as if the shoulder was impacted against the ground. Overall, I accept Professor Duflou's evidence that a direct impact to the shoulder was the most likely explanation to the deceased's shoulder injury rather than a transmitted force impact. That is the usual way in which a bruise of the kind found in the autopsy would have occurred. Professor Duflou also ruled out, correctly in my view, bruising from being dragged as that would tend to leave abrasions.
I will return to questions of suffocation after considering some further aspects of the evidence. The deceased was dragged to the place where his body was found. It was most likely he was dragged with his heels on the ground. That interpretation is consistent with the furrows in the ground that can be seen at Marker Q. The evidence from Detective Senior Sergeant Moon was that there was no movement in those furrows suggestive of a struggle.
The Crown sought that an inference be drawn in that respect that the deceased was either deceased or unconscious at the time his body was moved, as the tracks showed no movement.
Senior counsel for the accused criticised Dr I'Ons' evidence in that respect, namely, that the drag marks were consistent with someone who was either unconscious or dead, in that Dr I'Ons failed to consider the deceased could have been conscious but bound. That possibility was noted by Professor Duflou although he did not exclude the other possibilities to which Dr I'Ons referred. In the absence of contradictory evidence, it must be accepted that the three possibilities are available in this case.
When found, the deceased was lying partially on his back and left side. His head was turned with the left side facing downwards and right cheek exposed. There was a considerable amount of sand and soil adhering to the front part of his face. Further, sand was located within his nostrils and mouth.
On the evidence, I accept that, at some point, after the commencement of the assault upon the deceased and before he was found there was packing tape wrapped around his head which covered his mouth and nose albeit with a gap left through which the deceased's nose protruded.
Detective Senior Sergeant Moon conducted an experiment to establish whether the tape lying on the ground to the side of the deceased's face, when raised over the face (without touching it), fitted the deceased's face. He concluded it did. Further, he established that the tape would have apparently joined the remainder of the tape on the right side of the face. He was also able to match the dirt on the deceased's face with the adhesion on the tape and the position of the deceased's nose relative to the cut in the tape to accommodate the nose. I have accepted Detective Senior Sergeant Moon's evidence which accords with Professor Duflou's evidence in this respect.
Professor Duflou stated that it also appeared that the nostrils or at least the lower part of the nose were not covered by the tape. This accords with the evidence that some part of the nostrils of the deceased were unoccluded by the tape.
I accept Detective Senior Sergeant Moon's evidence that the tape had been released from the deceased's face in the orientation of the face when the deceased's body was found. There was evidence that the tape was not cut as none of its ends were cut but rather torn at the edges.
The evidence would suggest that the tape was torn from the deceased's face when the deceased was at the location at which he was found. This is consistent with the fact that the tape around the deceased's face was not strongly adhering to the back of his head and was not in situ over the face of the deceased. Because it was not strongly adhering to the back of the deceased's head, the Crown contended that "it is likely that the gag was removed at that final place". The evidence was it was difficult to break the tape and it stretched to break. I agree with that submission, but the evidence does not establish a particular timeframe in which the tape was removed.
Given the deceased was bound by his wrists and ankles when found, the tape across his mouth and nose must have been removed by a person other than the deceased. The evidence reveals that neither Mr Devlin, who found the deceased, nor the police officers who first attended the crime scene, removed the packing tape from the deceased's mouth.
I do not consider the evidence was consistent with the packing tape falling off the deceased's face whilst he was being dragged across the ground. The tape was robust and resisted breaking unless cut or torn at the edges. Further, Detective Senior Sergeant Moon opined that the deceased was likely dragged with his body on a diagonal slope such that his shoulders were lifted and his feet touching the ground. On this scenario, there would not be the occasion for the tape to fall or be pulled off during the movement of the deceased to his final location.
LM was involved in binding the deceased. He was untruthful to police when he said he played no active part in the assault and detention of the deceased. To this, it may be added his constant activity from the activity tracker on his phone.
The evidence of LM in his ERISP was that he "rolled [the deceased] over" and, at that time, "[the deceased] was just sort of groaning. You could hear him, you know … He was lying on the ground. He wasn't saying anything". LM said the deceased was "on his side, after I rolled him" (and answered affirmatively to the proposition "you rolled [the deceased] on his side") and stated that "I just thought [the deceased] was unconscious". He did not know if the deceased's eyes were open or not. The reason why LM "rolled him on his side" was "so he wouldn't choke on his tongue".
Senior counsel for LM submitted that the Court would be inclined to accept that account even though it was plain that LM had lied in other parts of his ERISP. She submitted that the Court would accept this proposition because it accorded with the "practical experience". I am inclined to accept this submission. Even though the deceased was dragged to the location where he was found in a face up position, the position that he was ultimately found in did have him leaning to one side in a manner not inconsistent with the account given by LM, namely, that he was in a recovery position.
I also agree with Senior counsel for LM that it may be inferred that around this time the tape had been removed from the deceased's mouth. Working backwards, it can be inferred from the fact that Mr Devlin and the first responders who located the deceased did not themselves remove the tape, and therefore, it had been torn off before their arrival. As mentioned, it would have been impossible for the deceased to have torn off the tape himself because his hands were tied behind his back. The only available inference is that, by the time of the departure of the accused and WD, the tape had been removed from the deceased's mouth. This is fortified by the evidence that LM heard the deceased groaning, which was most likely to occur if the deceased's mouth was not occluded.
It may be accepted that the accused left the area quite promptly after the deceased was situated in the position in which he was found.
Contrary to the submissions of the Crown and for the reasons given in my judgment, I consider that the police experiment as to the time that it would have taken the accused and WD to walk from the crime scene to WD's home was at least 30 minutes, should be accepted. This was the shorter of the time periods in the time range estimated by the police.
I turn then to my conclusions as to the issues considered during the course of concurrent evidence.
I have concluded that, in considering the survival time after the brain injury suffered by the deceased, the Court should apply the well-established or conventional approach in medical literature and learning: positive axonal injury may be observed by a β-APP stain if the survival time between the brain injury and death is no less than 35 minutes (or on Professor Duflou's concession, 30 minutes). I have rejected the application of a shorter minimum survival time suggested by Dr I'Ons based upon the new theory espoused in the Al-Surraj Paper for road traffic collisions, for reasons given in my judgment.
I accept the submission for AN that the Court must not accept scientific evidence disputed by the defence that is unfavourable to the accused unless there is good reason to reject the defence evidence. For the reasons given in my judgment, I do not consider there is a good reason to reject the evidence of Professor Duflou as to the interpretation and application of medical literature as to survival time between axonal injury to the brain and β-APP positivity.
There is a further consideration in this respect. If it were not possible to reach such a conclusion on the evidence and the Court was left thereby with an unresolvable conflict as to the literature on β-APP reactivity and survival time as between the experts, then the direction as to exceptional cases on the expert evidence would apply (see [72] of my judgment). That direction requires that, if the Court is incapable of resolving a conflict between experts on matters of science and the conflict relates to an area where the Court cannot resolve that conflict in a manner which would eliminate reasonable doubt, the accused must be acquitted. Save for the conclusions I have reached as to the medical opinions and literature, this would be such a case because of the significance of the evidence of axonal injury and survival time to causation.
This conclusion has significant implications for the question of whether the deceased died, as submitted by the Crown and as found in the Autopsy Report, by the combined effect craniofacial trauma with airway obstruction.
In order to understand the consequences of my finding as to axonal injury and β-APP reactivity, it is necessary to briefly revisit the facts as I have found them as follows. 1. The deceased died between 3.33pm and 4.45pm; the former being the time the deceased and AN arrived at the crime scene; 2. The accused and WD arrived at WD's home after departing the crime scene at 4.30pm; 3. The interval between the accused arriving at the crime scene and arriving at WD's home is 57 minutes; 4. The walk from the crime scene to WD's home is between, on the shortest estimate, 35 minutes and 30 seconds and, on the longest estimate, 40 minutes and 30 seconds; and 5. If the lesser time is selected (that is, the shortest walking time), the accused left the crime scene at 3.55pm, having been there for 22 minutes.
It follows that, if the deceased suffered axonal injury from the outset of being assaulted by the accused and WD, the deceased would have died after the accused left the crime scene because the minimum survival time was, on Professor Duflou's concession, 30 minutes. Again, as I have found, at the time the accused left the scene, the packing tape had been removed from his mouth.
On that basis, and putting aside prone restraint asphyxia, which I have rejected, Professor Duflou concluded that the deceased could not have died from airway obstruction as his mouth would have been open or able to be opened, his nose was not fully occluded (even when affected by dirt and blood, the nasal passage remained open to air flow) and he was in a recovery position with patent airways.
The Crown's submission that Professor Duflou conceded that the deceased could have died from airways obstruction if the "gag" remained in place omitted the significant caveat introduced by Professor Duflou. He conceded that, if the mouth and nose were obstructed by the gag then death may, and probably would, follow. But his evidence was that this was "not as shown here and not as calculated". Professor Duflou observed that, at best, what the Crown had demonstrated was "a transient period of time, undefined" where "the body was face down or parts of the body was face down".
In relation to airways obstruction, the starting point of the Crown's position was the Autopsy Report. As identified by Dr I'Ons in oral evidence, that report principally concerned suffocation or positional asphyxia. In terms of suffocation, even though the Crown listed a range of factors in their closing submissions, the Autopsy Report specifies a number of mechanisms contributing to the death of the deceased including the apparent obstruction of the mouth with packing tape; the dirt around and within the mouth; the facial injuries including the fractured nose and the prone position of the deceased. Dr I'Ons also relied upon the deceased being potentially unconscious and thereby unable to protect his airways.
Despite a reference to an "apparent obstruction" by a gag as such a mechanism in the Autopsy Report, the conclusions in the Autopsy Report plainly relied on, not just the evidence of a gag over the deceased's mouth at some point, but that the gag was present at the time when the deceased was found. I was not persuaded by Dr I'Ons' concurrent evidence to the contrary. It is clear from the cross-examination of Dr I'Ons that the Autopsy Report is predicated on the presence of the tape over the deceased's mouth when he died.
The Autopsy Report thus proceeded on a flawed premise. That flaw in the Autopsy Report was fundamental when the question of obstruction of airways comes to be considered in the light of the findings that I have thus far made, namely, by the time the accused and WD departed the crime scene and when the deceased died, there was no presence of a gag or tape over his mouth.
There are two related considerations which may be dispensed with promptly before returning to the issue of suffocation.
The first is the theory by Dr I'Ons that either the deceased was the subject of restraint asphyxia and/or was suffocated by the cushion effect of sand when in a prone position. I have rejected those theories in my judgment, but it is important to note that the cushion theory did not form any part of the basis for suffocation or positional asphyxia identified in the Autopsy Report. The significance of the cushion theory is that, as contended by senior counsel for AN, it was developed in the light of the obvious difficulty for the Crown case that the deceased's airways were patent - there was no dirt or debris found in the airways or stomach. In any case, the explanation for the cushion theory for reasons given in my judgment is unconvincing.
The second feature is that there is evidence advanced that the deceased was likely concussed at some point. However, there is no proof that the deceased was necessarily unconscious for any extended period of time.
It is against that background that the Crown identified in its oral submissions the mechanisms, which were said to demonstrate airway obstruction and thus suffocation. The Crown Prosecutor submitted seven factors that lead to obstruction of airways: (1) the brain injury with a capacity to cause concussion; (2) broken nose causing swelling and bleeding, which causes pain; (3) the nostrils were occluded by dirt; (4) the existence of the packing tape which covered the deceased's mouth and partly over his nose during the melee; (5) entrenched sand and debris in his teeth and on the packing tape, which suggested the deceased's face having been pushed into sandy soil prior to him being gagged; (6) the deceased was in a prone position during the melee as evidenced by the injury to the front of his shoulder, staining on the front of his thighs, grass on inner singlet and stomach area; and, (7) there was clear evidence of restraint, which restricts the ability to breathe.
I note, at the outset, for the reasons given in my judgment, that I do not accept that the presence of petechiae is indicative of suffocation or obstruction or the airways in the case of the death of the deceased.
It was accepted by both Professor Duflou and Dr I'Ons that total occlusion of the nostrils and mouth is not required for suffocation. It is the Crown's case that the combination of evidence of dirt in the deceased's nostrils, and the broken and bleeding nose, that there has been at least a substantial, if not total, occlusion of his airways through his nostrils. The Crown submitted, in closing, that the deceased did not necessarily die when the gag or packing tape was over his mouth.
Senior counsel for AN referred to the evidence of Professor Duflou that, if the deceased survived the period when the tape was over his mouth, he would not die of airway obstruction after it was removed simply because his mouth was covered at some point, even with the circumstances of debris in the mouth and other circumstances.
In the circumstances of this case, I am not satisfied to the requisite criminal standard, beyond a reasonable doubt, that there had been airway obstruction. Once it is accepted that the packing tape was torn when the accused and WD left the crime scene and the deceased was still alive without the obstruction over his mouth, it follows that his mouth would have been open or able to be opened. Even if one were to accept the Crown's submission that breathing through the nostrils was substantially occluded by the swelling in the broken nose and dirt around the rim of the nostrils, there is still the possibility that the deceased could have been able to breathe through his mouth. I am not satisfied, from reviewing the photographic evidence, that the amount of sand, dirt, and vegetable matter, which was largely attached to the deceased's teeth and gums, had the effect obstructing the deceased's ability to breathe through his mouth. This reasonable possibility is fortified by the fact that the airways were patent. There was no sand, dirt or vegetable matter found in the trachea, lungs, and airways. I agree with Professor Duflou that there is a reasonable possibility that, once the deceased survived the period when the tape was over his mouth, he would not die of airway obstruction after it is removed.
I found that Dr I'Ons' evidence that the deceased, in the circumstances of his assault, restraint and detention, had a high demand for oxygen, to be very compelling. However, even assuming the Crown's submission that breathing through the nostrils was substantially occluded, there was no evidence that, in the circumstances of high oxygen demand, there would be an obstruction of airways amounting to causing death. I found Professor Duflou's answer in cross-examination as to the ability to breathe through the mouth in circumstances of high oxygen demand to be measured and clear. Based on common experience, I agree with Professor Duflou that one can still breathe through their mouth, albeit with difficulty and uncomfortableness, following activities that demand high amounts of oxygen. The Crown did not negative the possibility raised by the accused.
The Autopsy Report stated the "combined effects of the blunt force injuries may have resulted in a reduced level of consciousness or unconsciousness and an inability to self protect the airway". This observation was made before Associate Professor Buckland's report was released. That report resulted in a consensus that the deceased may well have been concussed (the severity being unknown) but, as Professor Duflou opined, given the extent of the injuries found, it was most likely that any unconsciousness would be for a short period of time or, alternatively, the deceased would not be unconscious but rather dazed.
The Autopsy Report also described that the deceased had a "comminuted fracture nasal bones". I accept the view of Professor Duflou that the nature of such a fracture would not cause a severe obstruction of airways.
It was the common view of Dr I'Ons and Professor Duflou that heart disease is a frequent accompaniment to methamphetamine long-term use as the drug has an effect on the heart, and that death from methamphetamine overdose often occurs where cardiac disease is present.
The deceased had no acute or chronic heart disease and his heart was unremarkable. However, in the opinion of Professor Duflou, this fact did not exclude death due to methamphetamine toxicity. He opined that, in terms of an "age-appropriate heart" 30-40% of fatal cases related to methamphetamine use alone.
Dr Drummer and Dr I'Ons were of the view that death from heavy doses of methamphetamine by itself without any associated factor is very uncommon, but that such deaths do occur. Dr Drummer suggested that the deaths usually occur with a blood concentration of greater than 2.0 mg/L.
The Crown reinforced the limitation by reference to the common use of the drug in the community and that death from the use of the drug is nonetheless uncommon. Reference was made to the need to have regard to tolerance and drug distribution, and in the former category, the deceased was a regular use of the drug without apparent adverse effect.
There was no correlation between the amount of methamphetamine and its toxicity and effect.
However, central to the thesis of Professor Duflou was the following: 1. Methamphetamine has a very poor dose relationship. In other words, persons consuming methamphetamine may die at lower or higher concentrations. 2. In order to consider whether a person has died from methamphetamine toxicity, it is necessary to take into account the level of the drug. In the present case, the level of the drug in the deceased was in the centre "of what you could expect it to be in cases who have overdosed on methamphetamines".
As to the existence of anxiety or stress arising from the assault of the deceased or him engaging in a combat situation, Professor Duflou agreed that stress, whether physical or mental, can increase the heart rate and have a similar effect to methamphetamine in that respect. However, when asked if the coexistence of stress and anxiety and the related adrenaline effects and the effects of methamphetamine are both present, would he agree that it could not be methamphetamine alone as a reasonable cause of death in the present situation, Professor Duflou did not agree that methamphetamine toxicity alone could be excluded as a reasonable cause of death. He stated in that respect: "I mean the alternative that has been suggested is methamphetamine had no effect on this case, you know, it was a negligible, if any, effect". He continued to opine that methamphetamine did have an effect here and that there is certainly enough in this matter for methamphetamine on its own to cause death, particularly when the other asserted causes of death are "not that impressive".
Based on the medical research upon that question, which he considered in detail, Professor Duflou opined that the level of methamphetamine found in the deceased was typical of death due to methamphetamine overdose, accepting that it was not possible to state that death would necessarily be the result of methamphetamine in this case.
His opinion in that respect was that, in the absence of another definitive cause of death, methamphetamine overdose was a reasonable cause of death and one that could not be positively excluded as a cause of death in this case.
Dr I'Ons' opinion was that methamphetamine toxicity should be rejected as a cause of death because of the absence of an underlying cardiac disease and the existence of another identifiable cause of death, namely, craniofacial trauma and airway obstruction. However, he accepted that if the latter factor was absent, then he would have considered methamphetamine as a potential reason.
In my view, the opinion of Professor Duflou in this respect should be preferred to that of Dr I'Ons.
Professor Duflou's eminence on the question of methamphetamine toxicity is well-recognised. His opinions were firmly founded upon his own qualifications and experience and his analysis of medical literature to which he himself had contributed. There was not, in my view, a convincing challenge to those opinions. In many respects, Dr Drummer and Professor McGregor were aligned with Professor Duflou's opinion.
Dr I'Ons' reliance upon animal studies to demonstrate that methamphetamine may be administered in increasing doses without a cardiac response leading to death was misplaced and without foundation. The paper relied upon by Dr I'Ons had no relevant connection to the proposition that he was advancing and further, Professor Duflou's short but extensive investigation of the proposition after it was first raised at the end of concurrent evidence, demonstrated that there was no basis to the hypothesis advanced by Dr I'Ons.
As to tolerance, being the ability of an organism to sustain higher levels of drug relevant to a naïve user, Professor Duflou opined that tolerance can be lost. Professor McGregor referred to "sensitisation", meaning that the effects of the drug may actually become more pronounced over time.
In all the circumstances, I do not consider the Crown has established to the requisite standard that the deceased died by the combined effect of craniofacial injuries and airways obstruction. Further, I do not consider the Crown has excluded, as a reasonable hypothesis, the possibility of another cause of death, namely, methamphetamine toxicity.
It follows, in my view, that the Crown has not established, on the evidence, when approached in a common sense way, the acts of AN or LM were a substantial or significant cause of death of the deceased.
AN and LM each pleaded guilty to the foundational offence. I accept those pleas and will convict each of the accused of that offence.
I find and return a verdict that AN is not guilty of the charge of murder.
AN is convicted of the charge that on 2 February 2020, at Broulee in the State of New South Wales, he detained the deceased without his consent and with the intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, AN, LM and WD were in the company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased.
I find and return a verdict that LM is not guilty of the charge of murder.
LM is convicted of the charge that on 2 February 2020, at Broulee in the State of New South Wales, he detained the deceased without his consent and with the intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, AN, LM and WD were in the company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased.
I publish my judgment.
The Crown Prosecutor and senior counsel for AN and LM should confer as to a timetable for the sentencing of the offenders, AN and LM, and provide in that respect a timetable to my Chambers by Short Minutes of Order. They have liberty to approach my Chambers to that end. If a directions hearing is required, then similarly a communication to my Associate will result in the matter being listed accordingly.

R v AN; R v LM

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