R v Bailey

Supreme Court of NSW|2012-09-04|Before: Hulme J, Garling J

Judgment 1HIS HONOUR: Sean Hai Bailey (the accused) has been charged with the murder of Allan Thomas Hall (the deceased). 2The charge arises from an incident in the Laurieton Hotel on the evening of Friday 20 August 2010. The Crown case is that he punched Mr Hall who was sitting on a bar stool watching friends who were about to play a game of pool. The Crown says that the punching caused damage to a vertebral artery which bled into the base of the brain causing a subarachnoid haemorrhage that quickly resulted in death.

The proceedings 3The accused was arrested almost immediately. He agreed to be interviewed and was then charged. He was committed for trial to this Court on 9 June 2011. A question was raised as to his fitness to stand trial. On 11 October 2011, Garling J determined that he was unfit to be tried: R v Bailey [2011] NSWSC 1228. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 (the Act) his Honour referred the matter to the Mental Health Review Tribunal (the Tribunal) and remanded the accused in custody pending the determination of the Tribunal pursuant to s 16 of the Act. 4Unfitness to be tried means that the accused has an inability to meet a minimum standard of mental capacity to be tried fairly; that there is a limitation on the ability of the accused to participate in or contribute to his defence: Subramaniam v R [2004] HCA 51; (2004) 211 ALR 1 at [40]. 5On 29 March 2012 the Tribunal determined that the accused would not, during the period of 12 months after the finding of unfitness, become fit to be tried. The Tribunal notified the Court and the Director of Public Prosecutions of this determination. In a further review on 3 August 2012 it remained the determination of the Tribunal that the accused had not become fit to be tried and would not do so in the 12 months following the determination of unfitness by Garling J. 6The Director of Public Prosecutions determined pursuant to s 19 of the Act to take further proceedings in the matter. That then required the Court to conduct a special hearing for the purpose of ensuring, despite the unfitness of the accused to be tried in accordance with the normal procedures, that he is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the accused committed the offence charged or any other offence available as an alternative to the offence charged: s 19(2) of the Act. 7Section 21A of the Act requires that a special hearing is to be conducted by a judge alone unless an election is made by either the prosecution or the defence for there to be a jury. No such election was made in this case. 8If there had been a jury, I would have been required by the provisions of s 21(4) to explain certain aspects relating to the accused being unfit to be tried and the nature and consequences of a special hearing, including the verdicts which are available. The High Court of Australia provided a suggested direction to comply with this requirement in Subramaniam v R at [40]. I have re-read that passage of the judgment in order to remind myself of the various matters that a lay tribunal of fact would be required to have drawn to their attention. 9The verdicts available at a special hearing are provided in s 22(1) of the Act. They are: (a)Not guilty of the offence charged. (b)Not guilty on the ground of mental illness. (c)That on the limited evidence available, the accused person committed the offence charged. (d)That on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged. 10As to the latter, manslaughter is, of course, an alternative verdict available where there is a charge of murder. Whether it is open for the tribunal of fact to return such an alternative verdict depends upon the facts of the case at hand. There is no issue between the parties that it is available in this case. 11As there has been an issue in this special hearing as to whether the accused was mentally ill at the time of the incident in question there are some further provisions of the Act that should be noted. 12If there had been a jury, I would have been required by s 37 to explain the findings that may be made and the legal and practical consequences of those findings. Such an explanation would have included reference to the existence and composition of the Mental Health Review Tribunal and its functions with respect to forensic patients. That, in turn, would have included reference to the requirements of the Act that the Tribunal may make an order for the release of a person detained pursuant to s 39 following a special verdict returned pursuant to s 38 only if the Tribunal is satisfied that the safety of the person or any member of the public will not be seriously endangered by the person's release. I do not intend to set out all of the matters that are relevant to these issues but simply record that I have reminded myself of those matters.

Elements of the offence 13To establish a charge of murder the Crown is required to prove beyond reasonable doubt that there was a deliberate act of the accused that caused the death; that such act was done with an intention to kill the deceased or to inflict grievous bodily harm (really serious physical injury) or with reckless indifference to human life; and that the act was not carried out in self-defence. 14In this case the Crown alleges that the act of the accused that caused the death of the deceased was accompanied by an intention to inflict grievous bodily harm. There has been no suggestion that it was carried out in self-defence. 15The Crown contends that if it has failed to establish beyond reasonable doubt that the act was accompanied by that intention, a verdict for manslaughter arises for consideration. That requires the Crown to prove that there was a deliberate act by the accused that caused death and that such act was unlawful and dangerous. 16It has been submitted that the evidence establishes at least that it was the deliberate act of the accused that caused the death of the deceased and that this act was an unlawful and dangerous one. There is no suggestion of there having been any lawful excuse for the accused to have punched the deceased. Punching the deceased was dangerous if a reasonable person in the position of the accused would have realised that by that act the deceased was being exposed to an appreciable risk of serious injury. It has not been submitted that there is any doubt about the latter. 17On the accused's behalf the defence of mental illness has been raised. This requires that the accused persuade the court on the balance of probabilities that as a result of a defect of reason from a disease of the mind he did not appreciate the nature and quality of his act of punching Mr Hall, or that he did not know that it was wrong. When I speak of a disease of the mind I am talking about the function of the accused's reason, memory or understanding being thrown into a state of derangement or disorder. This must involve his capacity to reason so that he did not know the physical nature or quality of the act, or that he did no know that the act was wrong; wrong according to the ordinary standards of reasonable people in the community.

Matters not in dispute 18There has been no issue as to the following matters. 19The accused suffers from a mental illness. I will say more about this later. 20At the Laurieton Hotel at about 7.35pm on 20 August 2010 the accused approached the deceased who was sitting on a bar stool with his back to a wall and feet up off the ground. He was watching two friends who were about to play a game of pool. The accused spoke briefly with him and shook his hand. He then immediately delivered at least one blow with a clenched left fist to the right side of the deceased's head. 21There is no dispute that the act of punching the deceased was both unlawful and dangerous in the sense described above. 22The accused's motive was that he believed, mistakenly, that the deceased had made a racially offensive remark to the accused's mother some three weeks previously. Such a remark had been made, but someone else, not the deceased, made it. 23The accused was immediately grabbed by hotel patrons, brought to the ground and restrained. Some of the patrons immediately afforded first aid to the deceased. Police and ambulance officers arrived a short time later. Sadly, the deceased had passed away. 24The direct cause of death was ascertained on autopsy examination to be a subarachnoid haemorrhage; a large collection of blood at the base of the brain. The cause of this was bleeding from the upper right vertebral artery. The cause of the damage to this artery is in issue and I will return to it. Another significant condition contributing to the death was aspiration; choking by inhaling food material that was in the stomach, something that occurs to a person when they are unconscious. 25The accused was arrested and taken to Port Macquarie police station. Whilst he was in custody he was taken to Port Macquarie Hospital for treatment to a head wound that he sustained when the hotel patrons brought him to the ground. He was returned to the police station where he agreed to be interviewed by detectives. His father was present as a support person. He made admissions as to assaulting the deceased in the manner and for the reason indicated above.

Issues to be determined 26There are a number of issues that remain to be determined (1)Was it the act of the accused in punching the deceased that caused death? (2)Did the accused intend to inflict grievous bodily harm upon the deceased? (3)Is the defence of mental illness made out?

The defence of mental illness 27I propose to deal with these issues in a slightly different order. I will deal first with whether the defence of mental illness has been established, although it will only be relevant if the Crown has proved either murder or manslaughter. 28There is an abundance of evidence that the accused was mentally ill at the time of the incident. There is evidence from his brother and sister that in the days leading up to it his mental state was deteriorating and they were concerned about him. Efforts were made to have him seen and treated. There is no need for me to trace this evidence in detail; suffice to say that their efforts were, tragically, unsuccessful. 29There is evidence that the accused's behaviour in the hours following the incident was consistent with him suffering from a deterioration of his mental condition. After he was arrested he was taken to the Port Macquarie police station. Because he had sustained a wound to the back of his head as a result of the efforts of hotel patrons to apprehend him it became necessary for police officers to take him to the Port Macquarie Base Hospital. 30One of the officers, Sergeant John Lawrie, said that on the way to the hospital the accused was very vague. He sat quietly in the rear of the ambulance staring straight ahead. At the hospital he was mumbling things to himself and making hand gestures. He was placed in a safe room where he was observed to be talking to himself, making hand gestures to the walls, laughing out loud for no apparent reason, and having conversations with himself about a range of topics. Sergeant Lawrie said that the accused appeared oblivious to the fact that police were standing near the doorway observing him. It was necessary for a doctor to insert about six staples to the site of the wound to the accused's head after administration of a local anaesthetic injection. Throughout the treatment the accused was laughing uncontrollably. 31Sergeant Lawrie recorded some video footage on his mobile phone and this recording was tendered by the Crown (Exhibit K). It is consistent with the descriptions given of the accused's behaviour. 32Dr Sarah Beable was the treating doctor. Her statement (Exhibit U) includes that the accused "was constantly talking to himself and appeared to be acting out in an unusual manner". When left alone in a room he "still remained ... vacant and talking to himself". Another doctor who took over the treatment of the accused noted that the accused was laughing loudly and talking to himself, but denied reacting to auditory/visual hallucinations. 33The police interview commenced almost 11 hours after the incident at the hotel. I have had the benefit of watching the visual recording (Exhibit W). It shows behaviour by the accused that is consistent with someone experiencing a significant deterioration of mental health. He appears to have had no appreciation of the serious situation he was in. He often smiled and on occasion laughed. His admissions to having punched the deceased were given in a quite determined and matter of fact style. At one point (Q 162) he began to sing. At another point (Q 207-208) he expressed interest in the microphone on the interview table, commenting that it was "a nice one". A number of times he took on a vacant appearance as if he was not aware of his surroundings and was in a world of his own. 34Professor David Greenberg saw the accused in custody on 30 March 2011 and 1 and 12 August 2011. His report of 26 August 2011 is Exhibit J. 35Professor Greenberg reported that the accused gave a poor account of his past psychiatric history. He said that he was first diagnosed with schizophrenia in 1998. He gave a history of hospitalisations and treatment in the community but claimed that there had been a misdiagnosis and that he was not mentally ill at all. 36The report includes in summary form Professor Greenberg's review of a number of witness statements and hospital records. He stated his conclusions thus: Mr Bailey has a documented chronic history of suffering from a major psychiatric illness, namely a Schizoaffective Disorder. It is reported that his first psychotic episode was in 1998 and he subsequently had at least eight known admissions to various Psychiatric Units or Psychiatric Hospitals for his psychotic illness. His admissions were precipitated by his non-compliance with his psychiatric medication. It is noted in the medical records from Royal North Shore Hospital and Port Macquarie Mental Health Services that Mr Bailey had a history of violent behaviour whilst in a psychotic state. During periods of psychosis he had elevated mood with decreased need for sleep. He also presented with agitation and grandiose plans to start various businesses whilst in a psychotic state. According to the information available, Mr Bailey's medication was decreased from approximately February 2010. His intramuscular medication, namely Fluanxol was decreased and finally ceased at the end of March 2010. He had also ceased his mood stabilizing oral medication, namely Sodium Valproate at this time period. It is noted that Mr Bailey's mental state was subsequently stable for several weeks until July 2010 when there was noted signs of deterioration in his mental state. It is noted in the medical records that his Fluanxol intramuscular antipsychotic medication was subsequently restarted on 9 July 2010; and further small doses were given on 14 July and 22 July 2010; he was due for a further injection of 80 milligrams on 4 August 2010. It is noted that whilst in Sydney Mr Bailey was reported by his father, sister, brother and mother to have symptoms and signs of a relapse of his Schizoaffective illness. It is reported that he had decreased need for sleep, was laughing to himself and staring vacantly into space. He appeared being preoccupied with his thoughts and also had grandiose ideas about starting businesses. The family recognized that heir family member was deteriorating in his mental state and attempted to seek help from the Royal North Short Hospital and Port Macquarie Base Hospital. I am therefore of the opinion that Mr Bailey suffers from a major psychiatric illness, namely a Schizoaffective Disorder and at the time of the alleged offence was suffering from an acute relapse of his Schizoaffective Disorder. 37The report then addresses specifically the defence of mental illness: I am of the opinion that Mr Bailey likely has a 'Defence of Mental Illness'. I base my opinion on the documentation from various family members and medical personnel at Royal North Short Hospital and Port Macquarie Base Hospital in the weeks just prior to the alleged offence, the police officers observations after detaining the accused and the statements from the various witnesses. It is evident that at the time period of the alleged offence, he had an acute relapse of his Schizoaffective Disorder. I am of the opinion that he was suffering from a disease of the mind, namely a Schizoaffective Disorder with acute exacerbation of psychotic symptoms at that time period of the alleged offence. I note that following his arrest and interview by the police it is evidenced in the transcript of the ERISP and in the same video recording that Mr Bailey was highly inappropriate in his manner. He is noted to be laughing to himself and at times preoccupied with his thoughts. At times he is noted to be staring vacantly when asked questions by the police officer. He appears to be either preoccupied with his psychotic thoughts or responding to auditory hallucinations. During interview he appears not to understand the nature and quality of the charges. He dismisses that his actions were wrong and feels justified that he hit the victim. He appears not to understand the implications of his admissions of punching the victim. At times he appears to have the perception that he is on TV and also comments on the microphone on the desk in an inappropriate manner. These examples of his mental state would suggest that he was acutely psychotic at that time period. Various witnesses noted in their statements that Mr Bailey appeared to be calm and un-phased that the victim was deceased as a result of his alleged behaviour at the time period. In my psychiatric interview, Mr Bailey claimed that he believed that the victim and his two friends were going to attack him and beat him. He felt that he was justified in punching the victim to stave off the attack. I am therefore of the opinion that Mr Bailey likely did not understand the nature and quality of his actions and did not understand the wrongfulness of his action both in a legal sense and a moral sense at that time period. I am of the opinion that he had a defect of reason flowing from his mental illness namely Schizoaffective Disorder. At the time he was suffering from paranoid delusional beliefs and likely was hallucinating at that time period. I am therefore of the opinion that Mr Bailey has a 'Defence of Mental Illness'. 38There was no expert evidence contradicting Professor Greenberg's opinion. The Crown accepts it to be correct. I have no basis not to act upon it; indeed, it would be capricious not to. Evidence as to causation 39Principles relating to the issue of causation in the criminal law were discussed by the High Court of Australia in Royall v R [1991] HCA 27; (1991) 172 CLR 378 and recently by the Court of Criminal Appeal in Whelan v R [2012] NSWCCA 147. Allsop P (at [2]) succinctly described the issue thus: The question is one of fact, dealt with by commonsense, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter, and so the causal connection must be sufficiently substantial to permit a conclusion of criminal responsibility. 40The first task is to determine the facts. Only then can it be determined whether it was the act of the accused that caused the death of the deceased. 41The dispute between the parties on this issue comes down to this. Was the damage to the vertebral artery directly caused by a punch, or punches, delivered by the accused? Or, is it a reasonable possibility that such damage was occasioned when hotel patrons intervened to restrain the accused? It has been suggested that it is a reasonable alternative possibility that the deceased sustained the damage to the artery when he became inadvertently caught up in the ensuing fracas. 42There are four aspects of the evidence that assist with the determination of what happened: security camera footage, physical evidence, expert opinions of the forensic pathologist and eyewitness testimony.

Security camera footage 43The area of the hotel in question is rectangular in shape. The security camera was installed approximately in the northeast corner and was generally directed towards the middle of the wall on the opposite, southern side. The vision provided is across two table tennis tables with a pool table the other side of them in the middle of the screen. There is another pool table further to the right. 44It is the pool table in the middle of the screen that is of interest. Vision from the security camera sees the table at an angle. The longest sides of the pool table run parallel with the far (southern) wall of the room. With the aid of a crime scene officer's scale plan and working notes (Exhibits P and Q) it can be determined that there is a distance of about metre and a half between that wall and the pool table. 45The table at which the deceased was sitting was against the southern wall and is about half a metre in diameter. There were stools near to the wall on either side of it. The table was opposite the eastern end of the pool table; at the left hand end of it as viewed from the security camera. 46Also against the southern wall was a chip vending machine. It was to the west of the table in question, or to the right as viewed from the security camera. The distance from the middle of the table to the closest side of the chip machine is about three metres. The distance between the southwest corner of the pool table and the north east corner of the chip machine is about 90cm. 47There was evidence that the time stamp on the security camera footage was about 20 minutes in advance of actual time so I have deducted 20 minutes from the displayed time. 48At 7.34.37 Mr Phillip Hardy is seen to approach the pool table from the main bar area. Mr Jimmy Waters similarly approached at 7.35.10. They both appeared to put their beers on the table and then directed their attention to the pool table. It was their intention to have a game. 49At 7.36.13 the deceased approached the area of the pool table. He took a seat on the stool to the north of the table, or to the left as viewed from the security camera. 50At 7.36.47 the accused comes into view, approaching from the main bar area. Messrs Hardy and Waters at that point were in the vicinity of the table at which the deceased was sitting. Mr Hardy walked anticlockwise around the pool table and came together with the approaching accused at about the middle of the northern, or camera, side of the pool table. This was at 7.36.54. The deceased remained seated on the stool with Mr Waters standing a short distance in front of him. 51At 7.36.59 the accused continued to walk clockwise around the pool table in the direction of Mr Waters and the deceased while Mr Hardy continued walking anticlockwise around the pool table to the western, or baulk end of it. This is consistent with his evidence that he and Mr Waters were about to have a game of pool and Mr Hardy was to break. 52The accused came to Mr Waters who was still standing a short distance in front of the deceased. The two appear to shake hands, which is consistent with the oral evidence. 53At 7.37.03 the accused moved around and past Mr Waters and approached the deceased who was still sitting on the stool. At 7.37.05 the accused was directly in front of the deceased. At 7.37.11 there is movement by the accused towards the deceased. It is not possible to see that this movement was a punch, but it is consistent with it. It is not possible to discern that there was anything more than the one movement by the accused, a matter relevant to the assessment of Mr Waters' evidence that he saw two punches in quick succession. 54The ensuing events occurred very quickly. The deceased came forward off the stool, slightly bent over from the waist. Whether he was grabbing at the accused, or the accused had hold of him, or neither, is not possible to discern. At this point Mr Hardy immediately moved to his right (left as viewed from the camera) anticlockwise around the pool table in the direction of the incident. Mr Waters took two or three steps back away from the accused and the deceased as the latter came off the stool. 55The deceased and the accused then move to the right as viewed from the camera. Vision of them is immediately lost as they move into an area between the pool table and the far wall that is very brightly lit. It is impossible to say that, if they were in contact as the deceased came off the stool, they remained in contact as they disappear from vision into the brightly lit area behind the pool table. 56At 7.37.14 Mr Waters moved forward to the area behind the pool table and vision of him is lost. It is certainly the case that Mr Hardy and Mr Waters were the first to reach the area towards where the deceased and the accused had gone. Their evidence was that they were focussed upon restraining the accused. 57By 7.37.33, eight men had gone to the area of the pool table; four coming from the left side of the screen (the northern end of the room) and the others from right side of the screen from the area of the main bar. These men congregated around the furthest (southwest) corner of the pool table. 58At 7.37.50 the accused can be seen (particularly because of his distinctive white shoes) walking at a normal pace away from the pool table, towards the main bar to the right of the screen. 59The first police officer on the scene was Senior Constable Dietrich. He can be seen by at least 7.48.35. Ambulance officers can be seen arriving at 7.50.30. 60There was evidence that the pool table was moved to allow better access to the deceased by those seeking to provide assistance. The right hand end, as viewed from the security camera, was rotated away from the far wall and that is how it appears in the photographs subsequently taken by the crime scene officer.

The physical evidence 61The body of the deceased is not seen on the security camera footage. The crime scene officer's plan and photographs (Exhibits P and B respectively) show that he was lying roughly parallel to the far wall with his head to the right and feet to the left, as viewed from the security camera. The knees were very close to the area of the far corner of the pool table before it was moved; if they were not in contact with the leg of the table they must have been very close to it. The head was approximately just over half a metre from the nearest (northeast) corner of the chip machine. There is evidence that the deceased was moved by persons who sought to assist him from the position he was in initially when he went to the ground; references ranged from rolling him over but in the same location to lifting him up and moving him to a different location. As a result, it is not possible to conclude anything from the position of the body except that one would expect that any movement would not have involved any great distance. 62The table at which the deceased was sitting was not disturbed and nor were the stools on either side of it. There were three schooner glasses of beer on the table with only about a mouthful consumed out of each. There was a single leg to the table and it seems reasonable to assume that it was in some fashion fixed to the floor. So, it maybe that in the movement of the deceased away from the table there was some contact with it, but it was probably minimal at best given the beers were not disturbed. 63A matter of some significance in the submissions for the accused is the chip vending machine. Photographs 70 and 71 (Exhibit B) show the lower portion of the side closest to the table at which the deceased was sitting. The crime scene officer's description includes that "there was visible damage observed to the bottom edge of the eastern side of the vending machine" (Exhibit A at [21]). The photographs show something that might be damage but it very minor. The officer also described a light coloured hair being located in the damage and that can be seen in photograph 71. Reference was made in the course of submissions for the accused to the deceased having light coloured hair and the accused having black hair. The deceased's glasses were found on the floor very close to this area of damage to the machine. 64The crime scene officer's evidence was that she took a swab from the area of the bottom of the chip vending machine and she seized the hair. For some unknown reason they were never submitted for analysis. The accused may have been disadvantaged because of this; I understand the submission made on his behalf to be that analysis might have confirmed that the deceased had been in contact with the bottom of the machine as the hair was consistent with the colour of his hair. Forensic pathologist's evidence 65Dr Kasinathan Nadesan conducted an autopsy at the Newcastle Department of Forensic Medicine on 23 August 2010. He determined that the cause of death was as I have indicated earlier. It is important to refer to some other matters that he found upon his examination. 66Superficial abrasions, bruising and subcutaneous contusions were found in various areas which need not be considered further as no-one has suggested that they are significant. What was significant was a contusion of the upper border of the right ear with a small superficial laceration on the top of the ear. The underlying scalp, which is under the skin, was bruised over an area of 6cm by 6cm. 67Dr Nadesan said it was not uncommon to find that a blunt impact occurring on the upper outer part of the neck, on either side, will cause damage to the upper vertebral artery causing bleeding into the base of the skull under the brain, that is, into the subarachnoid space. The doctor said that it was a logical conclusion in this case that a blunt heavy impact on the upper right side of the deceased's neck was the cause. This conclusion was based upon the external injuries seen on the right ear and the bleeding involving the entire thickness of the scalp in that area. This corresponded with the bleeding from the right vertebral artery and the subarachnoid haemorrhage. In other words, the scalp bruising, the contusion of the ear and the subsequent bleeding from the vertebral artery were all interrelated. 68Dr Nadesan also said that death is "quite rapid" when a subarachnoid haemorrhage occurs; the person usually collapses within a matter of seconds. Cessation of breathing is almost immediate and that causes the heart to stop because there is no oxygenation. A further aggravating feature in this case was the aspiration; the air passages were blocked which further compromised respiratory distress. 69Of some significance in relation to the alternative hypotheses advanced by counsel for the accused is that there were no injuries to the left side of the body, nor any to the right shoulder or the top and back of the head. Dr Nadesan also said that the part of the upper right neck where the trauma was noted is protected; if one was to fall to the ground the force would usually be absorbed by the tip of the shoulder and, presumably, the side of the head. 70Another means by which an upper vertebral artery can be damaged so as to cause bleeding leading to a subarachnoid haemorrhage is by lateral rotation of the head, such as when an inept chiropractor might perform such a manipulation of the neck. In cross-examination Dr Nadesan said that "a violent movement of the head along the upper vertebrae" by way of a lateral or sideward rotation through the head rotating quickly could cause the upper vertebral artery damage. At another point in the cross-examination he said that "abrupt and rapid movement"; "rapid rotation of the head on the neck" would be required. 71Versions derived from the eyewitness testimony were put to Dr Nadesan. A description of the deceased having been hit with a fist to the right side of the head and then collapsing to his knees slowly was consistent with a subarachnoid haemorrhage occurring. A description of the deceased going down to the floor without attempting to break his fall was consistent with him being unconscious. 72Dr Nadesan was asked about the degree of force that would be required to cause the trauma seen to the deceased's upper right neck. He said "it has to be substantial force"; "heavy impact", "a full blown punch". 73A number of alternative explanations for the deceased's injuries were put to Dr Nadesan in cross-examination. As to the contusion to the upper tip of the right ear he agreed that contact with a broad hard surface, "perhaps" might be the cause. He disagreed that it was consistent with contact with the edge of a hard surface. He agreed that the bruising underneath the area of the ear was consistent with that area of the ear impacting with a solid surface. 74Counsel for the accused showed photographs 23, 25, 70 and 71 from Exhibit B to Dr Nadesan and asked him to assume that the deceased's head came into contact with the bottom of the chip vending machine. With that assumption, he was asked whether the injury to the tip of the right ear and the underlying bruising were consistent with that part of the head having come into contact with that surface. Dr Nadesan had difficulty envisaging how contact with the area in question could have occurred if the deceased fell and contacted the bottom of the machine; he would have expected contact to have been made with a more upper region of the head (the parietal eminence) and the shoulder but there was no injuries to either of those areas. 75When asked to assume that the area in question did come into contact with the bottom of the chip machine, Dr Nadesan agreed that the kind of injury the deceased sustained was possible. 76Another possibility put to Dr Nadesan was that as hotel patrons tackled the accused they also collected the deceased and so there was additional force placed on him as he moved towards the ground. He was asked to consider whether damage to the vertebral artery by way of a rotational injury sustained in that way was possible. In response he said that some kind of rotational force would need to be considered as the cause if it were not for the injury seen to the right ear and the underlying bruising. He maintained that his conclusion that the artery was damaged as a result of blunt impact to the side of the head was a logical one that took into account all of the findings made at autopsy. 77Dr Nadesan was then asked to assume that the punch, or punches, did not cause the injury to the ear or the underlying bruising but that the area of the right ear came into contact with the base of the chip machine. He agreed that it was a possibility that the damage to the vertebral artery could have been caused in that way. 78He was then asked to assume that the deceased fell in an awkward position into the chip machine and that this caused his head to move in a particular direction, causing damage through the rotational effect to the right vertebral artery. He agreed that was possible. 79Finally he was asked to assume that the punch, or punches, did not cause any injury but that the damage to the tip of the ear and the underlying bruising were caused by contact with the bottom of the chip machine which also caused a rotation of the head, causing damage to the right vertebral artery. He agreed that was possible. 80Counsel later returned to the scenario of the contusion to the right ear and underlying bruising being caused by contact with the bottom of the chip machine. Dr Nadesan reiterated his puzzlement as to how the right side of the upper neck and ear area could come to squarely strike the vertical side of the vending machine. But, on the assumption that this happened, he again agreed that it was a possible cause of the contusion and bruising. 81Dr Nadesan's last words on these subjects were: My personal impression is it is a sort of, sort of a vertical [which I take to mean perpendicular] impact in this area [region of the right ear and behind it], like a fist blow is the most likely thing in my mind. I will definitely support that theory more than the other possibilities. (T245.5) 82Dr Nadesan was recalled the following day for further cross-examination. He was first asked to assume that a punch to the right side of the head caused the damage to the vertebral artery and asked whether the angle at which the punch was delivered mattered. He said that whether the punch was perpendicular to the side of the head or slightly upward or slightly downward did not matter so long as substantial force was transferred onto that area to cause the damage. 83He was then asked to assume that the punch did not cause the contusion and underlying bruising and asked whether they could have been caused by contact with the bottom of the chip machine whether the head struck it horizontally, diagonally downwards or diagonally upwards or otherwise. He expressed significant reservations about such a possibility because he had not seen the machine itself and reminded the court of the reservations he had expressed the previous day about such a scenario. Nevertheless, he agreed that it was a possibility but concluded his answer by saying, "this is purely a theoretical sort of answer from me, your Honour". 84Next, Dr Nadesan was asked to assume that a punch to the right side of the head caused the contusion and underlying bruising. He agreed it was possible that the vertebral artery was not consequentially damaged; although he also reiterated that it was his conclusion that it was. 85Finally, he was again asked about the possibility of the contusion and bruising being caused by a punch but that the vertebral artery damage was caused by rotation of the head and neck as the deceased made his way to the ground, or towards the chip machine. He said, "Yes, if you could prove the scenario. Yes, it's a possibility". 86In re-examination, Dr Nadesan agreed that a person being struck and then collapsing was consistent with a subarachnoid haemorrhage. He also agreed that a person being struck, going to his knees, witnesses noticing blood trickling, an open mouth, an appearance of unconsciousness and just falling to the ground, was consistent with a subarachnoid haemorrhage.

Eyewitness testimony 87It is often the case when incidents that are traumatic occur without warning and quickly, that the testimony of eyewitnesses varies greatly. Some people focus more quickly upon the incident than others; some may pay greater attention to some aspects than others; and some may simply be so affected by the trauma that they have difficulty in mentally processing what they have seen. A factor that may further exacerbate the problem in this case is that a number of the witnesses were consuming alcohol. That is to be expected given the scene was a hotel but there is a question as to the extent to which their ability to observe and recall was affected for this reason. There is no question concerning the honesty of any of the witnesses. Accuracy and reliability are in question. 88Eleven people who were either patrons or members of staff of the hotel were called to give evidence. I do not believe it is necessary to review their evidence in detail. The security camera footage provides the most reliable record of the basic facts as to what occurred. To reiterate, Mr Hall was seated on a stool watching his companions who were about to play a game of pool. The accused approached, spoke briefly with him, and then lunged at him, by inference punched him. The deceased and the accused then moved to the right, generally in the direction of the chip vending machine. Mr Hall was on the floor and found to be deceased very shortly afterwards. 89The various eyewitness accounts were the bases of scenarios put to Dr Nadesan. 90Mr Phillip Hardy was involved in tackling the accused and bringing him to the ground. Once the accused was restrained he looked back and saw the deceased. He said that he was in distress, his breathing was not right, he was gasping or struggling to breathe. There was a trickle of blood down the right side of his face. In his police statement made that night he said that "Al slowly went down to his knees and I went over to his side. Jimmy [Waters] and I helped Al to the ground and put him on his back". 91Dane Gunning gave an account which included three versions as to what occurred. I do not propose to have any regard to his evidence. 92Michael Moore was involved in restraining the accused. He looked back and saw the deceased on his knees; he wasn't looking good; there was blood coming down the right side of his head; his mouth was open as if he was in a state of unconsciousness; he was on his knees, not looking around or anything like that. This is quite consistent with the account of Mr Hardy. 93Whilst every witness said something that could be shown objectively to be incorrect, Daniel Dunn's evidence, like Mr Gunning's evidence, contained too many inconsistencies to warrant serious consideration. I will cite just the one example. He said that two people tackled the accused but that the deceased got caught up in this and he ended up on the bottom, that is, with three people on top of him. However, when asked if the deceased could have been "a bit further back and separate from those people" he said, "Yep, definitely". 94Mr Dunn's brother Joshua, also had the deceased on the ground with the accused and he said that Mr Hardy came and "smothered" both of them. He said Mr Hardy had pulled the accused off. He then said that the deceased was on his knees facing the corner where the chip vending machine backed on to the wall. Joshua Dunn had said that the man he described who was obviously the accused had earlier been playing pool with Mr Hardy. There are too many discrepancies in his evidence to know what can be relied upon. 95Mathew Owers, a barman, was a more impressive witness. He was working behind the bar when he heard a commotion. He looked up and saw a group of people crashing into the chip machine. He said there were "about" four people and that they then wrestled on the ground. One of them was Mr Hardy. Mr Owers raced around the bar and over to the scene. When he arrived he saw three men holding the accused down. The deceased was elsewhere, a little bit further back, about one and half metres towards the road (left as viewed from the security camera). He saw him drop to the ground on his knees and gag for air. He then fell forward onto the floor. He also saw blood coming from a cut around the right temple (it will be recalled that Mr Hall sustained a small contusion to the tip of the right ear). 96Scott Van Den Hoof said prior to the incident he had noticed the deceased playing pool (which, of course, he had not). He looked up from texting on his phone when he heard an exchange between the accused and the deceased. He saw the deceased had left his chair and seemed to be tackling the accused; they were up against the pool table. The deceased had his shoulder in the stomach area of the accused and his arms and shoulders were around the accused's stomach. Then another man who was playing pool came and tackled both of them and they ended upon the floor near the chip machine. Mr Van Den Hoof got up from his table and went over. He saw the accused on the ground with two people on top of him. The deceased was away from them, up against the chip machine. He was on his knees, slumped forwards onto the floor, but he added that this was not a clear memory. This aspect of his account is, however, consistent with that of Joshua Dunn. 97Michael Falconer said that he saw the accused punch the deceased with his right hand, although he did not actually see the blow land. The deceased got up off his stool and the two commenced to wrestle. The two people who had been playing pool were not there at this time (Mr Hardy and Mr Waters); one had gone to the toilet and he did not know where the other one was. (The security camera footage shows the contrary). Two people rushed to intervene, but they were not the two who had been playing pool. All four men went to the ground. The accused was on the bottom, with the deceased on top of him, and the other two men on top of him. Mr Falconer said that the deceased hit his head on the chip machine: "when they fell over it was just big bang where he's hit". He was asked how he knew it was the deceased and he said "I couldn't be sure but looked like him". In response to further questions he struggled to explain how it was possible for him to discern that it was the deceased's head that hit the machine. Another curiosity about Mr Falconer's evidence is that he said the deceased had a cut on his neck; he could not say which side; it was not bleeding, it was an open wound. No such injury was detected by Dr Nadesan. 98Mr James Waters gave a clear account of what he saw, although, like everyone else, there were certain inconsistencies. He was the person about to play pool with Mr Hardy when the accused approached. He was closest to the two when the accused punched the deceased to the right side of his face. He claimed that there was a second punch in quick succession; something that nobody else saw and something that is not possible to discern in the security camera footage. Mr Waters combined with Mr Hardy in grabbing the accused and bringing him to the ground. He looked over to the deceased and saw that he was on the ground some one to two metres away. There was blood on his face. He was not up against the chip vending machine. This is broadly consistent with the versions of Mr Hardy and Mr Moore. Conclusion as to causation 99I have carefully considered the alternative possibilities suggested on behalf of the accused as to how the deceased's upper vertebral artery came to be damaged and bled, causing the subarachnoid haemorrhage which quickly led to death. I am not persuaded that any of the alternative scenarios are reasonably possible. Like Dr Nadesan, I simply cannot envisage the right upper neck of the deceased coming into contact with the bottom of the chip machine in a manner that would cause the injury. Similarly, there is nothing in the eyewitness testimony that provides a foundation for the possibility that the deceased's head was abruptly rotated, either by contact with the machine or through physical manhandling in a way that could have damaged the artery. 100There is support for Dr Nadesan's opinion that the artery was damaged as a direct result of the accused's punch. It was described by some of the witnesses as quite a forceful punch. Most descriptions of the blow have it landing roughly in the region where the contusion and underlying bruising was found. Descriptions such as that of Mr Hardy and Mr Moore of seeing the deceased slumped to his knees, gasping for air and the like are consistent with the damage already having been done. 101I am satisfied beyond reasonable doubt that the fatal injuries were sustained as a direct result of a very forceful punch by the accused. An intention to cause grievous bodily harm? 102The Crown relied upon three aspects of the evidence to support the proposition that at the time the accused struck the deceased he intended to inflict grievous bodily harm. They were the accused's physical actions, what he said in his police interview and what he said to people at the scene. 103In the police interview the accused said that he had been told by his mother three weeks previously that the deceased had made a racially offensive comment to her. He was "pissed off" and "very upset about it". He vowed to "get him"; "I'm gunna get that one". He said that when he saw the deceased in the hotel, which was the first time that he had seen him since he had heard what his mother had alleged, he thought to himself "that's it, I'm gunna get him". There was in fact evidence from Mr Hardy that something like half an hour before the incident the accused became aware that Mr Hall was in the hotel; he walked past and said "G'day". 104The accused told the police that he went outside and put his glasses down before re-entering the hotel. There was evidence that the accused's glasses and his leftover Chinese meal that he had been carrying were found on an outdoor table. The accused said that he then immediately went to where the deceased was near the pool table and "king-hit" him. He said that after asking the deceased whether he had called his mother a "slaphead" and a "gook" he went "bang, king-hit". He was asked how hard the punch was and he said "I don't know, it was a good one though". He was asked what he meant by the term "king-hit" and he said, "Like, king-hit, cheap shot". 105A number of statements were made by the accused in the interview as to what his intention was. At first he said that he intended to kill him. Later he denied that but said his intention was to break his jaw. Counsel for the accused objected to those parts of the interview, relying upon ss 85 and 90 of the Evidence Act 1995. A voir dire was conducted. Submissions and my ruling on the objection were deferred. Prior to the issue being determined, the Crown conceded by agreeing to tender a version of the interview with all references to the accused's intention being redacted. Accordingly, I must ignore what the accused said in the interview on the subject. 106Descriptions by eyewitnesses as to the nature of the punch varied. Mr Hardy said it was not what he would call "a savage punch"; "it wasn't a well guided punch"; "it was a hit to the side of the head, a fairly sort of lifting up shot". I do not know what he meant by that. Mr Moore said "you could hear it - a very, very good punch - if you were boxing you'd be pretty happy with it". Mr Waters, as I have mentioned, said that there were two punches. I am doubtful about that because no-one else saw two punches and it is not possible to discern movements on the security camera footage that are consistent with that being the case. Nevertheless, as to the force of the punches, he said that when the first one hit he heard "a thud" and he thought the second punch was harder. Some of the other witnesses did not see the blow and others who did were unable to provide a description as to its force. 107Dr Nadesan's opinion was that the fatal injury was caused by "blunt, heavy impact". He said that such trauma as he observed required "substantial force", "a heavy impact". The descriptions of Mr Moore and Mr Waters were put to him and he agreed that they were consistent with the type of force that would be required, that is, "a full blown punch". 108The third aspect of the evidence referred to by the Crown was not developed further in submissions. What the accused said to people at the scene immediately after the incident was confined to the reasons why he punched the deceased, not what he intended to achieve by it. 109The evidence as to what the accused told police and as to what he actually did persuades me that it is highly likely that he did intend to cause really serious injury to the deceased at the time he struck him. However, I am not satisfied of this beyond reasonable doubt. 110The accused's stated intention to "get" the deceased could mean that he intended to inflict grievous bodily harm upon him. It could also mean that he intend to hurt him in some way but not necessarily in a really serious way. The fact that he put his glasses down outside the hotel before going in to confront the deceased is also equivocal as to the degree of harm he might have had in mind. The force of the blow that he inflicted is the most compelling feature relied upon by the Crown. But, was his intention to hurt him, or did it go so far as an intention to inflict really serious bodily harm upon him? I am left with a doubt. The accused must be acquitted of murder. 111I am satisfied that the accused's actions amounted to an unlawful and dangerous act as I have earlier described. To punch a person without that person's consent amounts to an assault. A reasonable person in the accused's position would realise that punching someone hard to the side of the upper neck/head would expose that person to an appreciable risk of serious injury. On the limited evidence available I am satisfied beyond reasonable doubt that all of the elements of manslaughter have been established. 112However, I am also satisfied on the balance of probabilities that because of a defect of reason from a disease of the mind the accused did not appreciate that what he did was wrong. Professor Greenberg was also of the opinion that the accused did not know the physical nature or quality of his act. I am hesitant in accepting that the accused did not know he was delivering a hard punch to the deceased's head. However, it is unnecessary to dwell upon that. The fact that the accused did not appreciate the wrongfulness of his act is sufficient for the defence to be made out. Verdict 113I return the following verdicts:

Not guilty of murder
Not guilty of manslaughter by reason of mental illness 114I make the following order:
Sean Hai Bailey is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2012

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