R v Hasapis

Objections to portions of the evidence

1. The parties agreed that this trial be judge alone for a number of reasons. Senior counsel for the accused had foreshadowed certain objections to evidence that were said to be unfairly prejudicial to the accused within the meaning of s 137 of the Evidence Act 1995 (NSW). It was submitted that those problems would be removed if the trial was by judge alone. Further, the indictment had originally contained two additional counts in relation to offences allegedly committed against Mariana Taitoko (one of the eyewitnesses to the fatal assault); assault occasioning actual bodily harm ("AOABH") and kidnapping. Shortly before the trial, the accused indicated he would plead guilty to the AOABH offence in exchange for the Crown accepting that plea in full satisfaction of the charges in relation to Ms Taitoko. That plea was subsequently entered before me on 17 February 2025. The admissibility of that assault was also challenged at the trial.
2. On the first day of the trial, the foreshadowed objections were maintained. They were set out in a document (marked MFI 1) provided by senior counsel for the accused. The following material was objected to: 1. [6]-[7] and [8]-[9] of the Agreed Facts (to the extent they mention the assault upon Ms Taitoko and injuries); 2. Photographs of Ms Taitoko's injuries, except 53-54 (BOE pp 653-654); 3. Crime scene photographs 142-143, 176-177, 219-220, 249, 372-380, 382, 385, 388-391; 4. Post-mortem photographs (pp 409-554) to the extent they show more intense markings than the bath photographs; 5. Forensic evidence summary 2-3, 9, 11, 13; 6. FASS certificate, except as specifically relied upon by the prosecution or defence; 7. Summary of relevant phone records on 25-26 January 2023, except 13:12:56-13:13:31 on 25 January 2023, and 14:01:20 on 25 January 2023; 8. Post-offence conduct, as consciousness of guilt to murder.
3. The parties agreed that the trial would proceed without these challenged portions of the evidence being excluded and that I would make my rulings at the conclusion of the evidence.
4. I indicated my rulings orally in court on 19 and 21 February 2025. The parties were content with me providing my reasons in this judgment. I shall do so at the conclusion of my summary of the evidence before I consider that evidence for the purpose of my deliberation.

Elements of the offence of murder

1. Section 18(1)(a) of the Crimes Act relevantly provides that the crime of murder shall be taken to have been committed where the "act of the accused" caused the death charged and was done with an intention to kill or inflict grievous bodily harm. In this context, "grievous bodily harm" means "really serious injury". Section 18(1)(b) provides that "[e]very other punishable homicide shall be taken to be manslaughter."
2. It follows that to prove the accused's guilt on the charge of murder, the Crown must prove: 1. The death of Mr Froggatt; 2. That the death was caused (or substantially caused) by a voluntary or deliberate, act or acts of the accused; and 3. The act was done with the intention to inflict grievous bodily harm to Mr Froggatt.
3. If the Crown can prove all those elements beyond reasonable doubt, then the verdict is guilty of murder.
4. As I have already stated, the sole element in dispute was whether the acts which killed Mr Froggatt were done with an intention to inflict grievous bodily harm, or "really serious bodily injury".
5. If the Crown cannot prove beyond reasonable doubt that the accused intended to cause grievous bodily harm to Mr Froggatt, then, on the accused's own admission, he would be guilty of manslaughter by reason of an unlawful and dangerous act.

Manslaughter - unlawful and dangerous act

1. To prove the offence of manslaughter based on an unlawful and dangerous act the Crown must prove: 1. The death of Mr Froggatt; and 2. That the death was caused by a voluntary, that is a deliberate, act or acts of the accused; and 3. The act (or acts) was unlawful; and 4. The act (or acts) was dangerous.
2. An act is dangerous if, viewed objectively, it carries with it an appreciable risk of serious injury. In the absence of any evidence capable of raising a lawful excuse, punching and kicking someone is clearly unlawful.

Legal directions and warnings

1. Section 133(1) of the Criminal Procedure Act provides that a judge in a judge alone criminal trial may make any finding that could have been made by a jury on the question of the guilt of the accused person and that any such finding has the same effect as a verdict of a jury: see also Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 52 [6]. Section 133(2) of the Criminal Procedure Act requires that the judgment in a trial by judge alone "must include the principles of law applied by the Judge and the findings of fact on which the Judge relied": Filippou v The Queen at 74 [77]. Section 133(3) provides that "[i]f 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".
2. The findings of fact on which I relied in reaching my verdict are set out in the balance of this judgment but before I turn to set those facts out, it is necessary for me to first record the applicable principles of law and any "warning" that I have taken into account.
3. I direct myself as follows.

Presumption of innocence

1. The fundamental starting point is that the accused enters the courtroom with the presumption of innocence. He is not required to prove his innocence; he is presumed to be innocent.

Onus and standard of proof

1. The prosecution bears the onus of proof. That onus remains on the Crown from the beginning to the end. The accused bears no onus. He is not required to prove anything in the trial. He is not required to prove that he is innocent.
2. The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. Suspicion, no matter how grave, is insufficient to justify a conviction.
3. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. The Crown is not required to prove the truth and reliability of every disputed fact or to establish everything that each witness said in evidence.

Drawing inferences from direct evidence

1. There was no direct evidence regarding the accused's intention at the time he assaulted Mr Froggatt. But the assault was witnessed by two people and there was expert evidence as to the cause of death. The Crown case is that I would infer beyond reasonable doubt that the accused intended to inflict grievous bodily harm on Mr Froggatt from the primary evidence, much of which was not disputed.
2. I am able to and will draw inferences from the established evidence. Before drawing any such inference, I must take care to consider whether the inference can rationally be drawn and must consider any competing inferences that are available. When drawing inferences, there is no particular standard of proof to be applied to the individual items of evidence from which inferences are drawn, but the process is subject to the care to which I have referred.
3. When it comes to drawing the ultimate inference of guilt, which would flow from a finding beyond reasonable doubt that the accused intended to inflict grievous bodily harm on Mr Froggatt, I must not draw such an inference unless it is the only reasonable inference, or the only reasonable hypothesis or conclusion, available on the evidence, such that I am satisfied of it beyond reasonable doubt.

Silence of the accused

1. After he was arrested, the accused declined to participate in an interview with police. He did not give evidence or call any defence case at trial. Consistent with the onus of proof, I draw no adverse inference against the accused based on his silence either on his arrest or at trial. The case is to be decided on the evidence before me. That evidence is to be considered without regard to any decision of the accused not to participate in an interview or give evidence.

The demeanour of witnesses

1. I have had regard to both what each witness said as well as how they said it. I do not propose to assess the honesty or reliability of the two eyewitnesses based on their "demeanour" in the witness box. Rather, I propose to scrutinise their evidence against the objective facts having regard to the submissions made as to how I would assess their reliability and honesty.

Expert evidence

1. Evidence was given by the crime scene officer, Mr Peter Watson, and the forensic pathologist who conducted the post-mortem, Dr Lea Murray. There was no challenge to the expertise of these witnesses. Accordingly, their opinions based on that expertise can be accepted. Although it is still open to me to reject some or all of the expert evidence, there is no basis to do so in this trial.

Witness knowingly concerned

1. Bonnie Cullen, who was at the date of Mr Froggatt's death the estranged partner of the accused, was also initially charged with murder on 28 January 2023 and refused bail. She pleaded guilty to being an accessory after the fact to the murder and provided an undertaking to give evidence for the Crown in this trial.
2. Ms Cullen's proceedings on sentence in the District Court were heard on 31 January 2025 at which time she was released from custody. On 10 February 2025, she was sentenced to a term of imprisonment which comprised a non-parole period of 2 years and 3 days. She received a 15% discount for her undertaking to give evidence which equated to 6 months of her total sentence.
3. The courts have a great deal of experience concerning the reliability of evidence given by a witness who participated in some way in the alleged crime. That experience has shown that the evidence given by such a witness may be, although it is not always, unreliable. As a result, such evidence must be approached with considerable caution.
4. There are many reasons why the evidence of such a person may be unreliable. Possible reasons include that the witness may want to shift blame from themselves onto others and to justify or minimise the severity of their own conduct. This may involve constructing untruthful stories to downplay their own role and play up the part of others, even to the extent of blaming innocent people. Such witnesses may also be motivated by revenge, dislike, or hostility. They may be motivated to give false evidence blaming others in order to qualify for a discount on their own sentence.
5. There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be.
6. Experience has shown that once such a witness has given a version to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.

Anti-tendency direction: previous assault on Ms Taitoko

1. As discussed further below, I ruled that some of the evidence of the assault on Ms Taitoko the day prior to the fatal assault on Mr Froggatt could be admitted over objection. That evidence was admitted for the limited purpose of placing the evidence of Ms Taitoko in context. The assault on her was part of a connected series of events but the Crown did not rely on it as being relevant to the accused's state of mind at the time of the fatal assault.
2. I have only had regard to this evidence in the limited way that the Crown relied on it. I have not used that evidence to reason that because the accused assaulted Ms Taitoko the day before the fatal assault he is more likely to have intended to inflict grievous bodily harm on Mr Froggatt. I have not used the evidence to reason that the accused is the type of person who would have intended to inflict grievous bodily harm when he fatally assaulted Mr Froggatt.

Evidence of blood

1. I admitted into evidence some crime scene photographs which were objected to. The background to their tender is discussed below. I have relied upon those photographs as being consistent with the evidence of the eyewitnesses as to what the accused did with Mr Froggatt's body after the fatal assault. I have not, and could not, use those photographs to infer that there was any more significant blood loss than was established by the other evidence.

Evidence at trial

1. Only five witnesses gave evidence at the trial. The two eyewitnesses to the fatal assault on the deceased (Mariana Taitoko and Bonnie Cullen), the crime scene officer, Peter Watson, the forensic pathologist Dr Lea Murray and the Officer in Charge, Detective Senior Constable ("DSC") Andrew Schepis.
2. Agreed Facts pursuant to s 191 of the Evidence Act 1995 (NSW) were tendered in the proceedings and marked Exhibit A. They provided the background and context to the issues in dispute at trial.
3. Exhibit B comprised a bundle of 139 photographs including crime scene photographs taken at the Unit 1/5-7 Levitt Street, Wyong ("the Unit 1" or "the unit") and the post-mortem photographs. I shall refer to some of these in my discussion of the crime scene evidence and that of the forensic pathologist, Dr Lea Miller.
4. Exhibit C was a CAD plan of Unit 1. It depicted where the yellow markers were which are included in the crime scene photographs in Exhibit B. In conjunction with Exhibit B, it was helpful in understanding the layout of Unit 1 where the fatal assault occurred.
5. Exhibit D was the FASS (Forensic & Analytical Science Service) report dated 6 February 2025. None of the DNA evidence was challenged by the accused and the analyst was not required for cross-examination.
6. Exhibit E was a document headed "Forensic Evidence Summary" which cross-referenced the swabs and other items collected by the crime scene officer with their later DNA analysis as found in Exhibit D. I ultimately did not need to consider much of what was in Exhibit D considering the agreed contents of Exhibit E which I will refer to below.
7. Exhibit F was a bundle of photographs taken of the injuries to Ms Taitoko the day before the fatal assault on the deceased. There was an objection to these photographs on the basis of relevance and I ultimately excluded them.
8. Exhibit G was a summary of relevant telephone records. The summary included a number of calls between the accused and Ms Cullen on 25 January 2023 in which he expressed his strong desire that nobody attend Unit 1 and his concerns about his property being taken. Again, objection was taken to some of these calls on the basis of relevance/unfair prejudice and I excluded some of them on that basis.
9. Exhibit H was two photographs depicting the injuries inflicted to Ms Cullen by the accused when he hit her with the gold chain.
10. Exhibit J was the post-mortem report of Dr Miller dated 28 February 2024.
11. Exhibit K comprised three diagrams drawn by Dr Miller: K1 was an A3 diagram of the injuries to the deceased's head, K2 was a diagram of the injuries to the front of his body and K3 was a diagram of the injuries to the back of his body.

Defence exhibits

1. Exhibit 1 was a crime scene photograph showing a photo of purple garbage bags in a kitchen drawer.
2. Exhibit 2 was a crime scene photograph showing a knife located under the bed in the second bedroom.
3. Exhibit 3 were screen shots of Ms Cullen when first arrested from the body-worn video ("BWV") taken by police and during her short interview with police.
4. Exhibit 4 were some of the post-mortem photographs marked by Dr Miller to indicate where there had been decomposition of the deceased's body.

Factual findings

1. I make the following factual findings (noting that many of them formed part of the Agreed Facts).
2. As at January 2023, the accused was living with Bonnie Cullen in Unit 1. Ms Cullen was renting it from the Department of Communities and Justice (Housing NSW). The accused had been staying with Ms Cullen for a number of months. They were in an intimate relationship, however, as at the time of the alleged offence, the relationship was dysfunctional, and the accused was in the process of moving out of the unit. The accused was supplying small quantities of methylamphetamine ("ice") to other persons out of Unit 1. [1]
3. Sean Froggatt ("the deceased") was living in Unit 8 of 5-7 Levitt Street, Wyong. Mr Froggatt lived at that address with a roommate named Rodney Dickinson. He received support through the National Disability Insurance Scheme for medical conditions including schizophrenia and epilepsy (for which he was medicated). Mr Dickinson received a regular payment from Centrelink as Mr Froggatt's nominated carer. Mr Froggatt was supplying small quantities of cannabis to other persons out of Unit 8. [2]
4. In the week commencing Monday 23 January 2023, Mariana Taitoko was staying at 9 Howarth Street, Wyong. The premises at 9 Howarth Street was a few blocks away from Unit 1 (separated by a five-to-ten-minute walk). Ms Taitoko and Ms Cullen were friends. [3]
5. On 25 January 2023, there were 22 missed calls from the accused to Ms Cullen (between 12:51:23 and 15:31:53). One call was answered (at 12:51:29), it lasted around eight seconds, but the content of that conversation is not known. There were no calls from Ms Cullen to the accused that day. The accused sent 106 text messages to Ms Cullen that day (between 13:01:45 and 15:35:19) and Ms Cullen sent 21 text messages to the accused (between 13:07:08 and 15:32:34).
6. The accused's text messages to Ms Cullen were abusive and mostly relating to their relationship ending, the logistics of him moving out of the unit and his desire to collect his belongings. Some of the messages the accused sent to Ms Cullen and Ms Cullen's occasional responses are extracted below:

• at 1:08:19pm, "Picck up dog",
• at 1:10:24pm, Ms Cullen responded, "Just text me Ur to abusive";
• at 2:01:20pm, "You busy working with open legs or what need a reply";
• at 2:13:15pm, "I see you packed your bags and left";
• at 2:16:46pm, "Im waiting for some one 2 help me move my shit";
• at 2:20:20pm, Ms Cullen messaged, "I'm not throwing U out I'm asking U to leave Civily";
• at 2:20:40pm, the accused messaged, "I cant move easily";
• at 2:20:46pm, "I have so much shit here";
• at 2:20:46pm, "I am moving";
• at 2:20:49pm, "I have told you that";
• at 2:21:00pm, Ms Cullen responded, "I don't have anyone to ask babe right now";
• at 2:21:44pm, "You have guys in and out when im not here so its hard 2 trust my shit here";
• at 2:22:45pm, "I want my stuff";
• at 2:27:41pm, "Bring your friend with you can come back and watch me pack and leave mate".

1. On the morning of Thursday 26 January 2023, Ms Taitoko was in attendance at Unit 1. During the course of that day, the accused discovered that some property was missing from the unit, including a pink-coloured handbag, a set of keys to the unit and a watch. The accused believed that the property had been stolen from the unit, and that Mr Froggatt was the person responsible. [4]
2. Upon discovering that the property was missing, the accused became angry. He demanded that the property be located and returned. Ms Cullen left Unit 1, heading for 9 Howarth Street, in search of the pink-coloured handbag and the other items. She did not return to the unit for a number of hours. [5]
3. While Ms Cullen was absent from Unit 1, the accused violently assaulted Ms Taitoko in the second bedroom of the unit ("the spare bedroom"). The assault lasted a number of hours, and included the accused pulling Ms Taitoko by the hair, punching her to the face and head, striking her to the body with punches and kicks, burning her skin with a jet lighter, and striking her to the head with the jet lighter. [6]
4. As a result of the accused's sustained assault, Ms Taitoko occasioned extensive and significant bruising to her face and head including but not limited to a subdural haematoma overlying her left parietal and frontal lobes, a large scalp haematoma at the back of the head and extensive bruising and swelling around both eyes. She also sustained extensive bruising to the left shoulder and 17 superficial dermal burns of various sizes to the neck, left breast, stomach, forearms, upper left arm, upper left back behind the shoulder, left torso, middle of the back and thighs. [7]
5. While the accused was assaulting Ms Taitoko, Ms Cullen returned to 9 Howarth Street, however she was unable to locate the missing property. At some stage after Ms Cullen left 9 Howarth Street, occupants of that premises (Ernesteen "Sissy" Peterson and Tori Nunn) found the pink handbag, the keys and watch. Ms Peterson and Ms Nunn then walked those items to Unit 1 in order to return them. The accused stopped assaulting Ms Taitoko when the handbag, keys and watch were returned. The assault had commenced when it was still daylight on Thursday 26 January 2023, and ceased sometime after dark (that is, sometime after the sun had set at around 8:00pm that day). [8]
6. When the handbag was returned, and the assault had ceased, Ms Taitoko fell asleep in the spare bedroom at Unit 1. She slept through the night and awoke the following morning in the spare bedroom. Ms Taitoko was in pain and feeling tired from her injuries. She remained at the unit throughout the day on Friday 27 January 2023. [9]
7. At about 12:30pm on Friday 27 January 2023, Mr Froggatt was collected from his unit by a disability support worker (Mr Pusko) and driven to the Toukley Community Health Centre (at 1A Hargraves Street, Toukley) for a routine medical appointment. The appointment was at 1:00pm, and it lasted for about 15 minutes. Mr Froggatt was dropped home by Mr Pusko at about 1:40pm. Mr Froggatt was wearing a jumper or t-shirt, tracksuit pants, socks, and slides or sandals on his feet. Mr Pusko observed Mr Froggatt to be dishevelled and to lack personal hygiene but did not record him to be suffering from any injuries. [10]

• At 6:25:15, the accused said, "Stupid hooker you think your on the phone being a fuckwit"
• At 6:38:19, Ms Cullen responded "I was breathing only and I told U y wat up plz babe?"
• At 6:38:49, she sent another text message saying, "I'm not doing anything I'm just here have even slept Yet so Calm down plz"

1. Telephone records indicate that the accused was still out when he and Ms Cullen had their only telephone conversation that day at 8:11:38pm.
2. Earlier that day, whilst the accused was absent from Unit 1, Ms Cullen arranged for Mr Froggatt to attend the unit to supply herself and Ms Taitoko with cannabis. Mr Froggatt went to the unit and remained there for a period of time, smoking cannabis with Ms Cullen and Ms Taitoko in the loungeroom. While Mr Froggatt was at Unit 1, another unknown male came to the unit for a short time. The unknown male wanted to speak to the accused and left when advised that the accused was not there. Mr Froggatt left Unit 1 (returning to his own unit) after smoking some cannabis with Ms Cullen and Ms Taitoko. [14]
3. Ms Taitoko's evidence was that the only time she ever met Mr Froggatt was on that day when he came over to sell them some marijuana. She thought it was in the afternoon and the accused was not there. He stayed about 15 minutes. She did not observe any injuries on Mr Froggatt when she saw him that first time. She described another man attending Unit 1 in the accused's absence as well, but she did not know him and he did not stay long. [15] Ms Taitoko's evidence was that Ms Cullen paid for the cannabis with some of the accused's "ice". [16] The three of them consumed it in the main bedroom.
4. Ms Cullen gave evidence that Mr Froggatt came over, looking for the accused about lunchtime. She purchased some cannabis from him. The three of them (Mr Froggatt, Ms Taitoko and Ms Cullen) all smoked some "cones". Ms Cullen's evidence was that she paid for it in cash and gave some of the cannabis back (presumably the cannabis they smoked together in the main bedroom). Another neighbour came in, but she could not remember his name. He was looking for the accused. [17]
5. The accused and Mr Thornthwaite returned to 5-7 Levitt Street at some time around 8:00pm to 8:30pm. At some point after returning to Unit 1, the accused became angry, because he believed that some of his property had been removed from the unit in his absence. The accused was yelling at Ms Cullen and Ms Taitoko, demanding to know who had been at the unit when he was out, and accusing them of performing sex work from it in his absence. The accused struck each of Ms Cullen and Ms Taitoko while yelling at them. Ms Taitoko eventually told the accused that both Mr Froggatt and an unknown male had attended the unit when the accused had been out that day. [18]
6. Ms Taitoko gave evidence generally consistent with the agreed fact. Her version was that the men arrived back at about 5:00pm and that Mr Thornthwaite, who she could not identify, did not stay long. [19] In cross- examination she agreed that when questioned by the accused Ms Cullen denied that other persons had been in Unit 1 when he was out. Her evidence was that it was she (Ms Taitoko) who eventually told the accused that Mr Froggatt had come around with the second male. She agreed that once she gave him that information, she was not the target of his anger anymore.
7. Ms Cullen's version was that the accused returned in the afternoon closer to "teatime" with Darren Thornthwaite. Mr Froggatt had left by then. The four of them all smoked some "ice" and Mr Thornthwaite then left. [20] Her evidence was that the accused became enraged as to whom had been in Unit 1. He punched and kicked both Ms Cullen and Ms Taitoko. He believed they were working out of the unit as sex workers and he also thought he lost his watch. He slapped Ms Cullen a number of times on the face. [21] He also punched Ms Taitoko to the head a couple of times. He kept asking who had been at the unit and accusing them of having worked out of it. They denied it. Ms Cullen had forgotten that Mr Froggatt had come over. When she remembered it and told him, she did so in the context of being struck. After this was mentioned, the accused became enraged and wanted Mr Froggatt to come around. There was shouting. This was in the early hours of the morning. [22]

The fatal assault

1. From a time after midnight on the evening of Friday 27 January 2023, the accused physically assaulted Mr Froggatt within the spare bedroom at Unit 1. This physical assault caused the death of Mr Froggatt. [27]
2. After Mr Froggatt went to Unit 1, Mr Dickinson went to bed and fell asleep. Mr Dickinson woke at about 1:40am and noticed that Mr Froggatt had not returned home. At 1:41am, Mr Dickinson placed a call to the accused's mobile telephone, however the accused did not answer. At 2:38am, Mr Dickinson sent the accused a text message that said, "Hey bro, u still awake? Is Sean there". The accused did not respond. [28]
3. On the evening of Friday 27 January 2023, Drew Harper-Thornthwaite was staying with his father (Darren Thornthwaite) at Unit 7 of 5-7 Levitt Street (directly above Unit 1). That evening, sometime after dark, Mr Harper-Thornthwaite heard a loud bang in Unit 1, followed by Mr Froggatt's voice. Mr Froggatt said, "oh fucking hell". Mr Harper-Thornthwaite then heard a few more bangs, followed by the accused's voice. Mr Harper-Thornthwaite heard the accused yell, "shut the fuck up". For the next 30 minutes, Mr Harper-Thornthwaite heard multiple bangs and multiple voices yelling. The loud noises were not constant but were happening every now and again. Mr Harper-Thornthwaite fell asleep after hearing noises for that 30-minute period. [29]
4. At around 3:00am, Gerald Ellis and Bailey Hammond attended Unit 1 to purchase "ice" from the accused. No one answered the door at the unit, despite Mr Ellis and Mr Hammond knocking loudly on the front door, on and off, for a number of hours. [30]
5. Mr Froggatt was fatally assaulted in the early hours of 27 January 2023. Both Ms Taitoko and Ms Cullen witnessed the fatal assault. They gave broadly similar accounts of the actual assault and were only challenged on discrete parts of their evidence. I accept their evidence to the extent that it is consistent with each other and not challenged. I will identify those portions of their evidence where I prefer one of their accounts to the other in my deliberation below.

Ms Taitoko

1. When Mr Froggatt arrived, the accused began yelling at him because he had come over earlier, and Ms Taitoko, Ms Cullen and Mr Froggatt were all taken to the second bedroom. Once in that room, Ms Taitoko described how the accused "just kept punching '[Mr Froggatt] in the head". She also stated: [31] "Daniel started getting angry and hitting Sean. I was on the ground next to the bed and Bonnie was on the bed, and every time Daniel was hitting Sean, Bonnie would get up to try stop him from doing it and he'd throw her back on the bed and come over and punch me in the face and he'd go back to Sean. It was just like going back and forward from me to Sean to Bonnie. He was just punching Sean."
2. The accused punched Mr Froggatt in the head about eight times. She described it as a normal punch to his head and his face with a closed fist. Mr Froggatt was crying and telling the accused to stop. Mr Froggatt was taller than the accused but smaller than him. Ms Taitoko stated that the accused also punched Mr Froggatt in the stomach about four times and that he "just kept hitting him" in the head and in the stomach. The accused also hit her (Ms Taitoko) with a chain. [32]
3. Ms Taitoko did not think that Mr Froggatt threw any blows. The accused stopped hitting Mr Froggatt only when he said, "the Yugoslavs set you up". The accused then left the room with Ms Cullen. He turned the light out and closed the door. She was left alone in the room with Mr Froggatt. She could not see but she could hear him on the ground trying to breathe. His breathing was "raspy", and he was gasping for air. It started after the accused left the room and went for about ten minutes. Mr Froggatt tried to crawl towards her, but she was scared and could not move. She was sitting on the floor "trying not to cry". [33]
4. About 15 minutes later, the accused and Ms Cullen came into the room. Mr Froggatt had stopped breathing. The accused told Ms Taitoko to bring him back to life. She tried mouth-to-mouth resuscitation and chest compressions. The accused told her to put "ice" in his "bum" and breathe it into his mouth. She did this but it did not work. [34]
5. Feeling sick, Ms Taitoko fell asleep. She agreed that she remembered the incident better at the time she gave her statement than now and that she receives Depot injections for mental health issues. [35]
6. At the conclusion of her evidence in chief, the Crown foreshadowed an application under s 38 of the Evidence Act but, ultimately, the witness instead had her memory refreshed by having portions of her police statement and body-worn video transcript put to her. She agreed that the accused may have kicked Mr Froggatt in addition to punching him. After portions of her body-worn video transcript were read to her, she remembered the accused kicking Mr Froggatt to the head as well. She agreed that they were "big punches" and that they were all "big kicks". [36]
7. When Ms Taitoko was cross-examined about the accused's attitude towards his "ice", she said that he was not angry when he walked in but became angry when he found out that Mr Froggatt had come over and he thought some of his "ice" was missing. She agreed that he also might have got upset about the fact that he thought that she and Ms Cullen were working out of Unit 1. She agreed that the accused did not normally share his "ice" and that he was protective of the "ice" he had and did not want to waste it. [37]
8. Ms Taitoko agreed that Mr Froggatt was wearing long pants and a long sleeve top and stated that he looked "sickly…real tired" and that she did not pay much attention as to whether he had any marks on him or not already. [38]
9. Ms Taitoko agreed that the accused was asking Mr Froggatt to tell him the truth about the missing "ice", but that Mr Froggatt kept saying "I don't know" and "I don't know what you're talking about". Each time Mr Froggatt did not answer the question the accused punched and/or kicked Mr Froggatt. She described the punches and kicks as "ongoing" in that the accused kept asking questions and then punched. She agreed that they were broken up by either of them saying things. [39]
10. Ms Taitoko first described the punches as "big punches" and "big kicks" however in cross-examination described them as "just normal punches" and "they were just punches". Mr Froggatt was still conscious during the punches and kicks, but he was not saying much and "was just crying". He did not remain awake and alert for long because he passed out probably 15 minutes later. She stated that she did not know if Mr Froggatt started to bleed much before the lights were turned out, she "couldn't tell". [40]
11. In cross-examination, Ms Taitoko stated that she tried to resuscitate Mr Froggatt for 35 to 40 minutes pressing on his chest with all her weight and agreed she may have cracked a few ribs. At the request of the accused, she also breathed "ice" into his mouth. She was worried about there being a "little bit of blood on his face" but she could not tell where it was coming from. She agreed that she then put about 100 dollars' worth of "ice" into Mr Froggatt's bottom. She agreed that the accused was "a little bit" in a panicked state. The body was then covered with a sheet and her recollection was that Mr Froggatt had not been moved out of the bedroom by the time she left. [41]

Ms Cullen

1. Ms Cullen's evidence was that when Mr Froggatt came around the four of them went to the second bedroom. She was standing between the accused and Mr Froggatt and Ms Taitoko was at the end of the bed on the window side. The accused hit Mr Froggatt to his head with a closed fist. Ms Cullen said, "It wasn't him, it wasn't him", but the accused continued to hit Mr Froggatt to his head and he fell to the floor, the blows being "very forceful". There were more than ten punches. The accused then kicked him, and both Ms Cullen and Ms Taitoko were hit as well with a closed fist to the head. [42]
2. In response to the accused's questions as to who had been to Unit 1, Mr Froggatt kept saying "I don't know what you're talking about". Mr Froggatt did not throw any punches. When he fell to the ground, he put his arms up to cover his face. He was kicked about five times to the abdomen and upper body (his chest and torso). She did not see any kicks to the head. [43]
3. The accused whipped the three of them (Ms Cullen, Ms Taitoko and Mr Froggatt) with a gold chain about five to ten times. Ms Cullen said she was struck on the upper arm and a couple of other places. The accused kept saying "Tell us who's been in the apartment. Youse are gonna die if you don't tell me who's been in the apartment". Upon being struck with the fists, Mr Froggatt fell on the ground when he was kicked and struck with a chain. He had swelling on his face and his breathing was heavy. [44]
4. Mr Froggatt was moving on the ground a bit and then stopped and was just laying there. The incident in the bedroom took about half an hour to 40 minutes. The accused then took Ms Cullen outside. They kept arguing outside the door that was not shut. The accused kept asking who had been in the apartment with Ms Cullen denying that it was anybody he did not know. They were out of the room for about half an hour to an hour. When they went back, they used the light from the mobile telephone and saw that Ms Taitoko was at the end of the bed and Mr Froggatt was on the floor. [45]
5. The accused then saw that Mr Froggatt was struggling to breathe and that he was "gurgling". He asked Ms Taitoko to do CPR which she did by breathing into his mouth. It was not working. She was getting no breath back. The accused told her to give him some "ice" which she did. He told her to put it in his anus which she did, but this made no difference. Ms Cullen told the accused that it would not work. Mr Froggatt continued gurgling but not for long. He was soon deceased. Ms Taitoko said that there was no pulse. [46]
6. Ms Cullen was cross-examined. She said that the accused did not keep "ice" in her unit. He was a small-time user who sold it to neighbours. She thought that he had money by the door and gave Mr Froggatt money and some of the "pot" back in payment for the cannabis he sold that day. [47]
7. Ms Cullen's evidence was that the accused and Mr Thornthwaite came back together to Unit 1, and they had also left together earlier in the day. Once they returned, they all had "ice" together. Ms Cullen stated that they only had a small amount, and the accused was not protective of or agitated about his "ice". He was agitated about who had been in the apartment. He had an expensive watch that was missing, and he was angry about the watch. It was suggested to Ms Cullen that the accused had got his watch back the day before, and she agreed. Ms Cullen then agreed that the accused was instead angry at this stage about someone being in the unit that day. [48]
8. When Mr Froggatt arrived, the accused started interrogating him about the "ice" that was missing and whether he knew about the prostitution or about the other male. He asked whether he had been in Unit 1 and Mr Froggatt kept saying that he did not know who had been there. The accused kept punching and kicking him in response. The assault went on for about 30 minutes. Mr Froggatt was conscious. He was able to respond at that stage but started to struggle towards the end. [49]
9. Both Ms Cullen and Ms Taitoko were also being punched during the assault on Mr Froggatt. Ms Cullen said she could not remember whether Mr Froggatt said, "the Yugoslav has set you up" but she did remember that Mr Froggatt said, "do you want to know about some guy". She thought it was "nonsense" and "gibberish", and the accused kept assaulting him. [50]
10. Part of the facts sheet Ms Cullen had pleaded guilty to was put to her. She agreed that they stated that the accused was angry because the "ice" was missing. She responded that she was not 100% sure why the accused was agitated, and that Ms Taitoko might have remembered this better than her. [51]
11. Ms Cullen and the accused then left the room, and Mr Froggatt was on the floor at this time and was still not talking. When Mr Froggatt was not responsive, the accused turned his focus on to Ms Cullen and Ms Taitoko. She could hear heavy breathing from Mr Froggatt and there was swelling to his face. The swelling was significant from being punched. It was inflamed and red to the right-hand side of the face. [52]
12. Ms Cullen agreed that when she was later arrested, she told police, "It was very violent and it was out of my control. I want a lawyer." She did not otherwise speak to police. She told police that she had not been well as she had not been taking her medication, she was on "ice", and she had not slept. [53]
13. At Wyong police station, soon after being arrested, she was asked when the last time she saw Mr Froggatt was. She responded that she lost track of days at that time. She said she was "half with it" and she wasn't very coherent. She felt "scattered" when interviewed. [54]
14. Some months after her arrest, Ms Cullen was served with the brief which included Ms Taitoko's statement. She also had the BWV transcript. She did not watch the video or read the transcript, but her lawyers told her about it. There was a long dense fact sheet, and her lawyers went through it with her. She took out things she could not remember. Ms Cullen stated that it appeared that Ms Taitoko remembered more. She knows that Mr Froggatt said something to the accused, and he kept assaulting him, but she may have forgotten things in the room or been unable to properly process them. It was suggested to her that it was possible that things Ms Taitoko had said happened after she left the room had become fixed in her own mind. She responded that this was not possible, despite being scattered at the time. [55]
15. When Ms Cullen entered the room again later, she said that Mr Froggatt was in the same position laying down. She was not sure if he was breathing when she left the room, but he was unresponsive. He was gurgling before she left the room, and gurgled a few times once she re-entered the room later. When she left the room, he was on his side and not moving. She did not try to help him or talk to him. Nobody was saying anything to him.
16. Ms Cullen believed that the accused wanted Mr Froggatt to recover so Ms Taitoko attempted to resuscitate him. The accused had dragged him by the body, on his back, to the end of the bed before Ms Taitoko began resuscitating him. After the period of resuscitation, there was also a period where Ms Cullen saw Mr Froggatt's body shaking like a seizure or a convulsion and he was gurgling. He was still gurgling when she gave him the "ice". [56]
17. The accused was "psycho" until police arrived. He was quite erratic and uncontrollable prior to this, over the two day period, to the point that Ms Cullen felt she could not reason with him. She was asked whether her perception that he was "psycho" over the whole period was a mistaken view during cross-examination, and she responded that it was not. [57]
18. Ms Cullen also noted that Mr Froggatt was hit with the chain in the context of not giving the answers he wanted. There was blood on the walls and clothing, and blood spatter. She remembered that he had blood on him and there was a puddle of blood on his face. [58]
19. After morning tea break, it was suggested to Ms Cullen that she had been signalling to her mother in court. She responded by indicating that her mother was smiling at her and denied that she was answering consistently with her mother's gestures. She denied seeing her mother mouthing anything. [59]
20. As for the number of punches, where Ms Cullen said there were a bit more than ten, she stated that this was the impression now she has of the number, rather than counting them at the time. In relation to the punches being forceful, she said that this is something she noticed at the time, but she thought everything that the accused did that day was forceful. Additionally, he would say "you're going to die if you don't tell me", and "made threats not only at the time of the CPR but quite often and directed to both of the women. [60]

Ms Taitoko

1. When Ms Taitoko woke up the next day it was daytime. She first stated that Mr Froggatt was still under a blanket in the bedroom [61] but when referred to her statement agreed having said that the body was gone because she could not tell whether there was a body under the blanket or not and that she just assumed that it was not in the room any more. [62] I am satisfied the body was moved while she was asleep.
2. She used "Spray n' Wipe" to clean up the bedroom. [63] She first said that it was her idea to do that and that the three of them cleaned the blood of the wall near the window and the bedside drawer. [64] She explained that the assault took place near the window. [65] When taken to her statement, she agreed that it was Ms Cullen who handed her the "Spray n' Wipe" and told her to clean up with Ms Cullen watching her while she did that and make her do it again. [66]
3. In cross-examination, she agreed that she had said that it was she and Ms Cullen who had done the cleaning. She was sure that the accused was helping too but could not remember the details of what he did and could not remember whether he was helping them clean up or not. [67]
4. Ms Cullen then asked her to leave because her father was coming around the visit. When she got home, some friends were there, one of which called the police and she was taken to hospital. She spoke to the police at the hospital. [68]

Ms Cullen

1. After Mr Froggatt died, the accused used the torch from his telephone and wrapped up Mr Froggatt's body in a sheet after Ms Cullen confirming that he should do so. Ms Taitoko was lying down when that was happening, and Ms Cullen could not tell whether she was awake or asleep. [69]
2. Ms Cullen described how the body was moved to the laundry by the accused. Mr Froggatt's body was dragged in by the sheet that he was in, he was on his back. [70] The accused subsequently moved Mr Froggatt's body from the laundry to the bathtub in the bathroom. When asked how long after the "ice" incident Mr Froggatt was taken into the laundry, she said that it had not been that long but that he stayed in the laundry for some time. He was then moved to the bath. [71]
3. Ms Cullen then made a call to her uncle and did not see what happened next. [72]
4. As a result of punching and kicking there was blood up the walls, on the curtains and on the floor, but primarily on Mr Froggatt. The accused told Ms Cullen and Ms Taitoko to clean the bedroom. They used "Chux" and "Windex". She did the cleaning to appease the accused. [73]
5. Ms Cullen then told Ms Taitoko she needed to leave Unit 1 as her father was coming over. When Ms Taitoko left, she was not allowed to keep her backpack as there was blood on it. [74]

Inconsistencies in eyewitness evidence

1. The three areas of inconsistency in the evidence of the two eyewitnesses were: 1. Whether the deceased became unresponsive during the assault; 2. Whether the accused stopped assaulting the deceased when he gave him the answer he wanted; and 3. Whether there were visible injuries on the deceased before the accused stopped the assault.
2. I will resolve these disputed issues in my deliberation below. Otherwise, I do not consider there to be any significant differences between the accounts of these two witnesses.

Agreed Facts

1. At 10:08am on Saturday 28 January 2023, Mr Dickinson sent the accused a text message that said, "Morning bud, is Sean still down there at URS?". At 10:41am, Mr Dickinson sent the accused a further text message that read, "He ain't come home yet since he left and that's unusual 4 him... Anyways, let me know ASAP please". The accused did not respond to these text messages. [75]
2. At 3:01pm, the accused sent a text message to Darren Thornthwaite (from Unit 7) that said, "What's up man". At 3:10:13pm, Mr Thornthwaite responded, "I at work gettn cooked fuck hot im going to pack up get out here let you know when home". At 3:10:43pm, the accused replied, "Sweet cya when your back home". At 4:07pm and 4:10pm, the accused sent Mr Thornthwaite further text messages that said, "What you up to", and "Anyone home?". Mr Thornthwaite did not respond. [76]
3. At 5:29pm, Mr Dickinson placed a call to the accused's mobile telephone, however the accused did not answer. At 5:30pm, Mr Dickinson sent the accused the following text message: "Cops are here". [77]

Peter James Watson.

1. Mr Watson is a crime scene officer based out of the Gosford Crime Scene section. He gave evidence that he attended Unit 1 at 10:30pm on 28 January 2023. [78] He took a number of photographs in relation to the crime scene, the post-mortem, the laundry sink items and the accused's shoes and socks (Exhibit B) and prepared a CAD (computer aided design) plan for Unit 1 (Exhibit C).
2. Much of his evidence was not in dispute. It was quite detailed. I propose to only refer to those aspects of it which are relevant to the question of the accused's intention and/or confirm the accounts provided by the two eyewitnesses.

Hallway

1. A bloodstain was observed on the hallway cupboard. [79] A sample was taken and the DNA recovered showed a mixture originating from at least three individuals. Mr Froggatt and Ms Cullen could not be excluded as contributors. [80]

The kitchen

1. There were cleaning products in the kitchen area [81] and a standard block of kitchen knives. Mr Watson agreed in cross-examination that there were knives in the block [82] and there was also a knife found under the bed in bedroom 1. No assessment was made as to whether it came from the knife block. [83] The relevance of this is that there were knives available to the accused, but he did not use them.

Laundry

1. There was blood on the vacuum cleaner in the laundry under two blankets on the floor. [84] FASS analysis confirmed that it matched the DNA profile of Mr Froggatt. [85] This is consistent with the body being first moved from the second bedroom to the laundry before being moved to the bathtub.
2. In cross-examination, Mr Watson was shown a photograph of the empty bath after the body was removed from. A pool of blood remained in the bath. He was asked whether it was tested to see if it contained urine or water, and he responded that there is no capability to test if a bloodstain is watered down in any way. [86]

Second bedroom

1. It was an agreed fact that Mr Froggatt was fatally assaulted in the second bedroom. Mr Watson's evidence was that blood was found in the second bedroom. He described the room and noted [87] a yellow cleaning sponge on top of the drawers next to the bed, and an apparent blood stain to the base. There was a window located on the eastern wall of the bedroom which had grey curtains that were closed over. There appeared to be staining on the curtains that were consistent with blood. The swab analysis returned a DNA profile matching Mr Froggatt. [88] No further testing was performed in relation to the stains on the curtains. On the northeastern corner of the bedroom was a white pillow with a large stain that appeared to be blood. [89]
2. Mr Watson evidence was that he also observed two small bloodstains on the small segment of the northern wall niche of bedroom 2. [90] A swab analysis of bloodstains on the wall [91] returned a DNA profile matching Mr Froggatt. [92]

Bathroom

1. Mr Watson's evidence was that the deceased's body was in the bathroom when he commenced his investigations. He described the bathroom and observed a green cleaning sponge, rubber gloves and a bottle of "Windex" cleaning spray on the vanity and a scrubbing brush on the end of the bathtub. [93] The bath contained a number of blankets and bed linen which were covering the deceased. A small orange facecloth was hung over the shower screen. [94]
2. The cleaning material he observed is consistent with the evidence of Ms Taitoko and Ms Cullen that they cleaned up after the fatal assault.
3. Mr Watson stated that he conducted a confirmatory blood test on each of the stains on the floor which all produced a positive result for the presence of human blood. He collected a swab from each of the blood stains for further analysis.
4. Mr Watson's evidence was that the swab analysis of blood stains on the floor tiles [95] and at the base of the bathroom door returned the DNA profile matching Mr Froggatt. [96]
5. Mr Watson further observed the deceased's body under the white doona. A blue fitted sheet was covering the head and neck area, and the deceased was wrapped in a blue and white doona cover. [97] The deceased was located in a supine position with both legs fully flexed at the knee. His feet were behind his hips, and his right arm was bent and laying across the chest region. The left arm was extended down the left side of the body. [98]

Accused's shoes and socks

1. The shoes and socks the accused wore at the time [99] were tested by another crime scene officer, Rachel Browne. [100] Bloodstains were observed on the accused's socks. The DNA recovered from the blood swatch at the top right part of the sock showed that it originated from Mr Froggatt whereas the DNA recovered from the swatches on the toe of the right sock and the top of the sock showed it being a mixture originating from at least two individuals with Mr Froggatt being the major contributor. [101]
2. Mr Watson's evidence was that bloodstains were also observed on the accused's shoes. [102] The DNA recovered from the blood swatch taken from the outer toe area of the left shoe showed it to be a mixture originating from at least three individuals with the major contributor to the mixture having the same profile as Mr Froggatt. [103] The DNA matching the profile of Mr Froggatt was recovered from the blood swabs taken from the inner sides of the shoes. [104]
3. In cross-examination Mr Watson explained that no pattern analysis was done to confirm the mechanism by which Mr Froggatt's blood came to be on the accused's socks due to the fact that the fluid blood gets absorbed in the fabric causing the pattern to change and that even if the blood was diluted it would still be blood there. He also stated that no splatter analysis was done on the accused's shoes and that there was no testing capability available to date the blood to establish when the blood was deposited on the socks and the shoes. [105]

Chains

1. Mr Watson located a gold and a silver chain from the laundry sink. [106] It was accepted that the link pattern on the chains appeared to match the injuries to the deceased's arms (from when he was whipped by the accused during the fatal assault).
2. In cross-examination, Mr Watson stated that the chains were mixed up with the hair and fluff in the sink and that he collected them as a bulk item. [107] He disagreed that the hair was mixed up in and out of the links of the chains. He stated that it was possible that they came from separate places (his impression was that it came from the water from the washing machine) but that he was unable to determine that. [108]

Luminol testing

1. Mr Watson was aware that there had been an attempt to clean the premises after the passing of the deceased [109] and he was aware of this before the luminol screening was done. [110]
2. He conducted a luminol examination on the premises. A chemical in luminol reacts with a certain component of blood causing production of blue light luminescence. A luminol examination is a presumptive screening on the basis that it does not confirm that what is observed is blood, because luminol also reacts with other substances such as bleach or peroxide which are common ingredients in cleaning products. [111]
3. Mr Watson explained the process of luminol screening as first taking a photograph in daylight, then applying a luminol substance, then taking of another photograph in darkness, and then overlaying the two photographs on top of each other. [112] Luminol examinations were conducted in the laundry, [113] the hallway, [114] the bedroom 2, [115] and the bathroom floor [116] Mr Watson's evidence was that there was a confirmatory test for human blood from a sample taken from the bathroom floor. [117]
4. By way of explanation of what was depicted in the photographs, the luminol showed a pool of liquid in the area where the pool of blood was found in the laundry and also drag marks in the hallway consistent with the body being dragged to the bathroom. Luminol also showed up extensively on the bathroom floor.
5. In cross-examination, Mr Watson agreed that he could not exclude bleach being the cause of marks because luminol as a screening tool gives an indication as to what might be there. It could still show one or the other. [118] He also stated that substances other than blood that react with luminol could remain for months and years after an event and that it was possible that the cleaning could have occurred before the death of the deceased. [119]

Chain marks

1. Mr Watson's evidence was that marks consistent with a chain were developed during the fingerprint examination of bedroom 2 and the bathroom, namely on the interior surface of the bedroom 2 door [120] and on the bathroom tiles (just above the tap). [121] In his opinion those marks were similar to the links on the chain marks observed on the deceased. [122]
2. In cross-examination, Mr Watson confirmed that no formal comparison was performed in relation to the markings observed on the door and on the bathroom tiles and the chains that were seized on the basis that the pathologist did not believe they were the cause of death. He also confirmed that it was impossible to date them. [123]

Officer in Charge

1. DSC Andrew Shepis gave evidence that a triple-0 call was received at 4:28pm on 28 January 2023 in relation to injuries inflicted on Ms Taitoko (she had arrived home by then). They attended the accused's premises at 5:30pm that day. The accused was arrested, and they took his joggers and socks. It was only when they did a sweep of Unit 1 that they found Mr Froggatt's body located in the bath. Ms Taitoko had told them that was where it would be. A crime scene was established.
2. When the accused was spoken to, he exercised his right to silence.
3. DSC Shepis was briefly cross-examined. He was asked about Ms Cullen's state when she was interviewed. He was shown photographs of Ms Cullen with her head resting on the table in the interview room and stated that one of the images concerned the extent to which Ms Cullen lifted her head during that interview. The images were from body-worn footage when police first attended the units and from the recorded police interview later that evening.
4. DSC Schepis was also questioned about his interaction with Ms Cullen's mother while Ms Cullen was giving evidence. He said that Ms Cullen's mother denied doing anything to influence the trial, and he reminded her to "just please don't do anything". [124]

Dr Lea Murray

1. Dr Leah Murray (nee Clifton), forensic pathologist, performed the autopsy on the deceased. The evidence was given by reference to the post-mortem examination report ("the post-mortem report") (Exhibit J) dated 28 February 2024 which she had prepared.
2. Dr Murray first confirmed that the appearance of the injuries reflected that they all occurred at or around the time of death, being "perimortem". [125] The overall pattern of some of the injuries are suggestive of "defensive" type injuries implying that the deceased tried to defend himself and, for example, instinctively put up his hands in front of his body to protect himself. [126] This is indicative from the injuries on the deceased's forearm and upper arms. [127]
3. The Crown took Dr Murray through the post-mortem report with respect to various injuries of the deceased. The injuries were described with respect to those to the head and neck, injuries to the front of the body, and injuries to the back of the body, which correspond to Exhibits K1-K3. Together, Dr Murray identified a total of 71 external injuries on the body of Mr Froggatt. [128]
4. With respect to the injuries to the head, Dr Murray noted the following results arising from formal neuropathological examination: [129] "In summary, the brain showed swelling, bleeding on the surface of the brain and within the ventricles of the brain, a single contusion (bruise) to the brain, vascular congestion, and microscopic changes of raised intracranial pressure and/or hypoxic/ischaemic injury. Possible microscopic changes of traumatic brain injury were also noted. These findings support the external, and facial dissection findings that this man was subjected to repeated blunt impacts to the head and face, and the history of becoming unconscious prior to later dying." (Emphasis added.)
5. Dr Murray explained that the raised intracranial pressure is a secondary effect of swelling of the brain, and that there is a correlation between the degree of raised pressure in the brain and the degree of brain injury. [130] For this to occur, there also needed to be a period of survival (likely hours) meaning the deceased would not have died immediately from the injury. [131]
6. Dr Murray also outlined the results from the post-mortem CT scan: [132] "Post-mortem CT scan identified diffuse subarachnoid and subdural haemorrhage (bleeding on the external surface of the brain), intraventricular haemorrhage (bleeding in the ventricles within the brain), marked swelling and bleeding within the scalp tissues, fractures of the left sided facial bones with associated gas in soft tissues of the face and neck, multiple rib fractures, emphysematous changes in the lungs, evidence of previous right shoulder and leg fractures requiring surgery and changes of decomposition."
7. Dr Murray noted that there was "confluent contusion" on various parts of the face meaning "it was difficult to define individual impact points or individual blows because there was so many that the bruising into the tissue from the impact had merged altogether". [133] Additionally, there was subcutaneous (under the skin) haemorrhage to both cheeks and the forehead region. [134] There were also "blowout fractures" to the left eye socket, [135] the bruising of which likely would have been pronounced quite early on after the incident. [136]
8. Dr Murray described "blowout fractures" in the following way when giving evidence: [137] "… blowout fractures are a radiological term where the specialists are looking at the medical imaging report and that is their terminology, but it just means that because that part of the bone is quite thin in the orbit, blowout means it is just kind of shattered. So that part of the eye socket has been subjected to significant force on the left side that has caused that pattern of fracturing." (Emphasis added.)
9. During cross-examination, Dr Murray stated that the orbital floor is an area of bone that is likely more easily broken as compared to other facial bones. Additionally, there were no fractures of the skull, the only fractures being to the orbital wall and the maxilla. [138]
10. Dr Murray listed the following visible injuries to the head and neck: [139] "Head 1. Confluent contusion on the entire left side of the face with extension from the left to the right forehead, around the left eye, onto the left cheek down onto the left underside of the mandible. 2. An 11 mm laceration on the left lower cheek. 3. Contusion around the right eye measuring 50 x 60 mm. 4. Clustered contusion on the right mid to lower cheek measuring 120 x 80 mm with extension to below the angle of the mandible, with an associated adjacent distinctive patterned abrasion measuring 95 x 15 mm across the cheek. 5. A 60 x 40 mm area of contusion involving the right ear. 6. A 20 x 5 mm area of contusion on the left outer helix of the ear. Neck 1. A vague area of contusion measuring 80 x 20 mm across the left lateral upper"
11. In cross-examination, counsel for the accused questioned Dr Murray in relation to the amount of blood loss the deceased would have suffered in relation to the facial lacerations and any abrasions. Dr Murray stated that the facial lacerations "would have definitely bled" but that "significant" is not the right term to use to describe the blood loss. [140] Dr Murray stated that there would have been external bleeding, but a large majority of the bleeding here would have been of the soft tissue meaning it was within the body. [141]
12. Dr Murray also listed some "Additional Findings" in relation to the face and neck at page 9 of the post-mortem report: "Layered soft tissue plane dissection of the face, neck, chest and left and right upper limbs showed areas of deep contusion as follows: [emphasis added] Face 1. 70 x 100mm area of subcutaneous haemorrhage to the left cheek and forehead region. 2. 30 x 50 mm area of subcutaneous haemorrhage to the right upper cheek. Neck 1. 80 x 30 mm area of subcutaneous haemorrhage across the left upper neck adjacent to the body of the mandible and extending down the neck along the sternomastoid muscle."
13. Upon internal examination of the brain, Dr Murray noted the following at page 10 of the post-mortem report: "The reflected scalp tissue showed significant acute contusion and oedema as follows: 1. A 100 x 80 mm large expanse of severe sub scalp haemorrhage and oedema overlying the left temporo- parietal region. 2. A 30 x 40 mm area of acute haemorrhage in the left frontal region. 3. A 100 x 60 mm area of scalp haemorrhage over the occipital region."
14. Together, these findings indicated that the deceased was subjected to repeated blunt force impacts to the head and face. Dr Murray stated in the post-mortem report (at page 3), and it was repeated when she gave evidence orally that: "This man suffered multiple repeated blunt force impacts to his head, face, body and limbs. He had extensive bruising and swelling to his scalp and face, fractured facial bones, and bleeding and swelling on his brain. This has likely resulted in profound unconsciousness and death."
15. The cause of death was recorded as "Blunt Force Head Injuries". [142]
16. In relation to the deceased's consciousness, Dr Murray stated that as the pressure in the brain increases, the level of consciousness would have dropped. [143] With respect to the process of decline a person shows before entering profound unconsciousness, Dr Murray noted that a person will initially become more agitated, then become less coherent, then unconscious, and then deeply unconscious. [144] The final stage with no intervention is "coning" which implies advanced pathology. [145] The time it takes for someone to go through this process is dependent on several factors and so it is hard to say how long it would have taken for the deceased to progress through each stage. Dr Murray stated that it would have likely taken a couple of hours, not minutes, and certainly not 24 hours. [146]
17. Dr Murray also stated that during the profound unconsciousness and coning phases, there may be such long pauses between someone's breaths that you might think they have already died. [147] She stated that 'rasping' "is probably not an uncommon description of one of the noises someone might make in the terminal phase of their coning". [148]
18. During cross-examination, Dr Murray stated that if after the assault the deceased had a small fall on to hard carpet, there is a possibility this may have caused some of the bruising, but certainly not the patterned injuries. [149] Similarly, if the deceased was observed to have had some kind of seizure, there is a possibility this may have caused some of the bruising, but again, certainly not the patterned abrasions. [150] It would be unlikely that dragging the deceased on a sheet from the bedroom to the laundry would have resulted in some of the marks and bruising suffered by the deceased, but it would depend on, for example, whether the deceased was bumped into something. [151] It is possible that lifting the deceased's body on the sheet and into the bath could have caused some of the bruising and markings, but the deceased only weighed 63 kg and would not have been a big person to lift. [152]
19. With respect to her mention of "patterned abrasions", Dr Murray was of the opinion that various marks left on the deceased's body could have been inflicted by way of a gold necklace chain. The marks were described by Dr Murray as "very distinctive". [153] There were 16 such marks in images included in Exhibit B. At page 3 of the post-mortem report, Dr Murray wrote: "External examination identified significant bruising and swelling to the face and scalp, as well as numerous areas of patterned abrasions and bruises to multiple locations on the chest, arms, back and legs. Overall, the pattern of injuries is in keeping with being subjected to multiple repeated blunt force impacts, some of which were inflicted by an object or implement that left distinctive patterned injuries."
20. With respect to the chest and abdomen, Dr Murray outlined the following in the post-mortem report at page 7 as evidence of injury to the rest of the deceased's body (in addition to the head and neck): "Chest and Abdomen 1. A 50 x 5 mm linear contusion extending down from the right shoulder and continuing over the top of the shoulder onto the right posterior shoulder. 2. Confluent contusion across the chest approximately 340 x 400 mm from above the clavicles to halfway between the xiphisternum and umbilicus. 3. A 110 x 10 mm linear abrasion horizontally orientated across the left upper chest overlying the medial clavicle. 4. A 60 x 10mm area of linear contusion and patterned abrasion below and lateral to the right nipple. 5. A 30 x 10 mm contusion on the right mid to upper abdomen. 6. A 80 x 90 mm area of clustered contusion on the left lower lateral chest wall. 7. A 30 x 20 mm contusion on the left lower abdomen. 8. A 120 x 50 mm area of clustered contusions on the right lower lateral chest wall. 9. A 100 x 50 mm area of clustered discrete contusions over the right lower abdomen and side region. 10. A 100 x 60 mm area of clustered contusion extending from the left lower abdomen around the left hip region. 11. A 40 x 20 mm area of contusions around the ventral glans of the penis."
21. Dr Murray acknowledged that some of the bruising on the chest and numerous anterior rib fractures may be the result of inflicted trauma to the chest, but also may be accounted for by attempts to give the deceased CPR. [154]
22. With respect to the remainder of the body, the following was outlined in the post-mortem report at pages 7-9 as evidence of injury: "Back and Buttocks 1. A 280 x 15 mm linear distinctly patterned abrasion and contusion extending diagonally across and down the left upper back from the left shoulder. 2. A 160 x 10 mm linear distinctly patterned abrasion and contusion extending horizontally across the left mid back. 3. A 360 x 15 mm linear distinctly patterned abrasion and contusion extending diagonally across and down the right upper back from the right shoulder. 4. A 110 x 10 mm distinctly patterned abrasion and contusion extending across the right mid back. 5. A 50 x 30 mm area of clustered brown contusion on the right lower back. 6. A 45 x 35 mm area of clustered brown contusion on the left lower back. 7. A 100 x 10 mm linear contusion across the left buttock. Upper Limbs 1. A 150 x 60 mm area of contusion and patterned abrasion consisting of two perpendicularly orientated linear lesions on the anterior aspect of the right upper arm. 2. A 110 x 30 mm area of contusion and patterned abrasion consisting of two perpendicularly orientated linear lesions on the posterior aspect of the right upper arm. 3. A 100 mm linear contusion on the anterior aspect of the right arm above the elbow. 4. A 55 x 10 mm linear contusion on the dorsal right mid forearm. 5. A 6 mm laceration on the dorsal right wrist. 6. A 35 x 5 mm contusion on the dorsal right hand. 7. An 80 x 40 mm contusion on the dorsal right hand associated with a 10 x 5 mm abrasion at the base of the ring finger. 8. Linear adjacent lacerations across the proximal dorsal right index, middle and ring fingers measuring 15 mm respectively. 9. A 15 mm laceration on the dorsal right mid ring finger. 10. A 10 mm abrasion on the dorsal right thumb. 11. A 60 x 25 mm area of contusion on the inner aspect of the right upper arm. 12. Confluent red contusion and swelling involving the dorsal left hand, proximal fingers and wrist. 13. A 60 x 10 mm linear abrasion across the dorsal left hand. 14. A 10 x 10 mm circular area of deep purple contusion and laceration on the dorsal left hand at the base of the middle finger. 15. A 15 mm area of linear patterned abrasion on the dorsal left hand. 16. A 10 x 15 mm abrasion on the dorsal proximal left ring finger. 17. A 10 x 10mm area of clustered contusion and abrasion on the dorsal left distal little finger. 18. A 3 x 3 mm abrasion on the dorsal proximal ring finger. 19. A 2 x 3 mm abrasion on the dorsal distal ring finger. 20. An 80 x 30 mm area of clustered contusion and patterned abrasion on the dorsal left wrist and distal forearm. 21. A 90 x 50 mm area of dark contusion on the posterior left upper arm. 22. A 130 mm long distinctive patterned abrasion surrounded by a 130 x 30 mm area of contusion on the outer aspect of the left upper arm. 23. An area of clustered linear distinctive linear abrasions surrounded by contusion covering an area measuring 80 x 60 mm on the outer aspect of the left upper arm above the elbow. 24. A 110 x 60mm area of clustered distinctive linear abrasions on the dorsal left upper forearm. 25. A 60 x 50 mm area of clustered contusions and abrasions on the outer left upper arm. Lower Limbs 1. A 85 x 80 mm area of clustered contusion on the anterior left mid-thigh. 2. A 110 x 10mm linear contusion across the antero-medial left lower thigh. 3. A 25 x 10 mm contusion on the antero-lateral left upper thigh. 4. A 20 x 20 mm contusion on the anterior-lateral left mid-thigh. 5. A 15 x 10 mm contusion on the antero-lateral left mid-thigh. 6. A 40 x 10 mm contusion on the medial left upper thigh. 7. A 110 x 100mm area of contusion overlying the left knee. 8. A 190 x 50 mm area of clustered red contusion extending down the left shin. 9. A 110 x 10mm linear contusion on the right lateral mid-thigh. 10. A 100 x 50 mm area of contusion surrounding a 45 mm linear abrasion on the right lower lateral thigh. 11. A 15 mm abrasion on the medial right lower thigh. 12. A 50 x 50 mm area of red contusion on the lateral right upper knee. 13. A 60 x 50 mm area of contusion on the medial right lower knee. 14. A 20 x 15 mm contusion and abrasion lateral to the right knee. 15. A 30 x 55 mm contusion on the right lateral mid shin. 16. A 80 x 45 mm area of contusion and abrasion on the posterior right upper thigh,. [sic] associated with two partial thickness lacerations measuring 4 and 13 mm respectively. 17. A 85 x 60 mm area of contusion on the postero-lateral left upper thigh. 18. A 10 x 15 mm contusion on the posterior left mid-thigh. 19. A 10 x 10 mm contusion on the left posterior mid-thigh. 20. A 50 x 15 mm contusion across the posterior right [lower] leg."
23. The following was also apparent following dissection of chest and arms showing areas of deep contusion (at page 9 of the post-mortem report): "Chest 1. 100 x 70 mm area of subcutaneous haemorrhage across the right lower chest wall. 2. 70 x 30 mm area of haemorrhage on the left upper chest wall. 3. 120 x 40 mm area of subcutaneous haemorrhage across the left lower chest wall. Left Arm 1. Extensive (150 x 60 mm) subcutaneous haemorrhage on the dorsal left hand and wrist. 2. Confluent (170 x 75 mm) area of subcutaneous haemorrhage over the posterior left upper forearm and elbow. 3. Confluent (100 x 50 mm) area of subcutaneous haemorrhage down the posterior left upper arm. 4. A focal 30 x 25 mm area of subcutaneous haemorrhage in the left antecubital fossa. Right Arm 1. Patchy (70 x 70 mm) subcutaneous haemorrhage on the dorsal right hand. 2. Patchy (80 x 40 mm) subcutaneous haemorrhage on the posterior right lower forearm. 3. Focal (50 x 25 mm) subcutaneous haemorrhage in the right antecubital fossa. 4. Deep (100 x 70 mm) area of subcutaneous haemorrhage over the outer right upper arm."
24. The following was also raised following internal examination (at page 13 of the post-mortem report): "Left Arm Acute haemorrhage is present in the subcutaneous tissues with associated acute inflammatory infiltrates. Right Arm Acute haemorrhage is present in the subcutaneous tissues with associated acute inflammatory infiltrates. Sternomastoid Muscle Acute intramuscular haemorrhage is noted with associated acute inflammatory infiltrates."
25. The Crown also raised with Dr Murray the discolouration of various parts of the deceased including on the hand, neck, abdomen and chest areas where there had clearly been a change in the body due to decomposition. Dr Murray clarified that not all of the injuries were "terribly affected" by post-mortem change. [155] For example, Dr Murray took a biopsy of the neck muscle on the deceased to confirm that it was in fact bruising and not post-mortem artefact. [156] Additionally, the dark red colour in the images of the deceased's chest taken in the bathtub indicate bruising, and with the passage of time in the images taken during the autopsy, lividity has progressed such that the bruising appears more pronounced. [157]
26. In cross-examination, Dr Murray noted that the bruising might have been more subtle to the naked eye had the post-mortem been conducted earlier, but the bruises likely would not have been smaller in measurement. [158] The same can be said for the images of the deceased's face taken in the bathtub, closer to the time of death, as compared to the images taken during the post-mortem examination. The bruises in the images in the bathtub "are still red, they're just much more subtle". [159] At the time of the assault and immediately afterwards, the patterned abrasion marks would have been apparent, but the bruising and other swelling had clearly developed over time. [160]

Defence case

1. The accused did not give evidence nor call any evidence.

Rulings on objections

1. When the evidence was concluded, and prior to closing submissions, the Crown filed written submissions in response to the objections. Oral submissions were made by senior counsel for the Crown and senior counsel for the accused. As stated above, I indicated my rulings prior to the closing addresses and both counsel were content for me to include my reasons in this judgment.

Telephone summary material

1. The accused objected to calls/texts between he accused and Ms Cullen on 25 January 2023 on the basis of both relevance (s 55 of the Evidence Act) and unfair prejudice (s 137 of the Evidence Act). The Crown submitted that the telephone contact demonstrates the nature of the relationship between the Crown witness Ms Cullen and the accused at the relevant time as well is the accused's pre-existing concerns with respect to persons coming to Unit 1 and taking his property. As well as to his concerns about Ms Cullen's suspected infidelity in the context of her escort work.
2. As for the telephone calls, I indicated during oral submissions that any messages which were consistent with the accused's motive for the fatal assault were relevant and admissible: namely, concerns that persons might steal his belongings, and that Ms Cullen and Ms Taitoko were letting strange men into Unit 1 as they were undertaking escort work from the unit. I otherwise excluded all messages which reflected general threats by the accused to Ms Cullen or similar messages which reflected a tendency for violence.

Luminol examination

1. The objections to the photographs depicting the luminol testing were based on the fact that it was not possible to infer from them how much blood loss there was because luminol also detects bleach which is the very product that was used to clean up after the fatal assault.
2. Ms Avenell noted that there was no objection to the luminol testing in the laundry because it is consistent with the photographs of where the blood appeared. The objection was to the luminol in the bathroom especially in circumstances where it cannot be timed and could reflect cleaning at a much earlier point in time
3. The Crown submitted that the luminol is consistent with the evidence that the body was dragged from the bedroom to the laundry and then to the bathroom. The evidence was that the accused dragged the deceased backwards which is consistent with the striation type mark or streak depicted in the photographs. It was submitted that there is of some blood in bedroom 2 and the laundry. There is then a gap between the marks consistent with heading out the door towards where the bathroom or the entrance to the bathroom is.
4. The Crown conceded that the luminol examination is not sufficient to say how much blood there was nor, inferentially, how strong the blows were. There was no dispute that there has been a cleaning up and the body was moved. There was clearly a significant amount of blood in the laundry and some in the bathtub.
5. I ruled that I would not have regard to the luminol drag marks depicted in the photographs to conclude that it solely depicted blood. Nor do the photographs support an argument that there was more blood than is already depicted or described in other evidence. But the luminol results were relevant in that they were consistent with Ms Cullen's evidence as to where the body was moved and that it was dragged. I indicated at the time that I would admit the photographs on that limited basis.

Post-mortem photographs

1. The objection to the post-mortem photographs was ultimately not pressed.

Transactional evidence

1. It was submitted on behalf of the accused that any evidence of what happened to Ms Taitoko on 26 January 2023 was irrelevant to the facts in issue and, even if it was relevant, it should be excluded under s 137 of the Evidence Act.
2. The Crown did not rely on this evidence to establish the accused's state of mind at the time of the fatal incident. Rather, it was submitted that it was admissible as both context and transactional evidence being part of the connected set of events that occurred in Unit 1 over the period from 25 to 27 January 2023. The Crown relied upon the decisions of O'Leary v R (1946) 73 CLR 566; [1946] HCA 44 and Harriman v R (1989) 167 CLR 590; [1989] HCA 50 and additionally referred to R v Mostyn [2004] NSWCCA 97 at [116], R v Adam [1999] NSWCCA 189 at [30], and R v Player [2000] NSWCCA 123 at [11]-[13].
3. The Crown submitted that the prolonged assault of Ms Taitoko occurred in the context of the accused's anger regarding property missing, which persisted as a source of anger at the time of the incident leading to the deceased's death. Ms Taitoko had not left Unit 1 after her assault and remained there until after the deceased's death, such that the Crown submits her narrative of the events could better be understood by reference to her own assault the night prior.
4. Further, it was said to be important context (or relationship) evidence as it demonstrated the nature of the relationship between the parties: Harriman at 630. The Crown also relied on R v Toki (No 3) [2000] NSWSC 999 and FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317 at [36]-[37] in support of that submission.
5. It was submitted on behalf of the accused that the only issue in the trial is the accused's state of mind at the time of the assault. It was accepted that some background context transactional evidence is necessary but "a line needs to be drawn". It was submitted that that line commences on the day of the fatal assault and that the court did not need any further reason as to why Ms Taitoko was at Unit 1 that day. It was noted that there was no objection to the assaults on Mr Taitoko on 26 January 2023.
6. It was accepted that the previous assault on Ms Taitoko is potentially relevant to her evidence that she stayed in the room in the dark and did not help the deceased as he lay dying because she was scared. But the evidence of what occurred to her that day would be sufficient without adducing what occurred to her the previous day.
7. It was further submitted that even if relevant, I would exclude the evidence under s 137 of the Evidence Act. It was submitted that judge alone trials should proceed as closely as possible to a jury trial. Further, s 135 of the Evidence Act applies to both civil proceedings and criminal proceedings when there is no jury and that kind of discretion is not confined to where there is a jury.

Ruling: Evidence of Ms Taitoko

1. The first question is whether the evidence of the assault on Ms Taitoko the previous day whilst she was at Unit 1 is relevant in the sense that it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act. If the evidence is not relevant, that is the end of the matter: Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at 653 [6]; IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 ("IMM").
2. The specific evidence objected to in this case were the description of the assault in the Agreed Facts and the photographs of the injuries. Given that the evidence was all accepted (in that the accused has pleaded guilty to it), the question of its capacity to be accepted does not arise: IMM at [49].
3. I am satisfied that the fact of the assault is relevant as it forms part of the series of events which occurred in Unit 1 over the 48-hour period from when Ms Taitoko came to the unit until she left. She was an important witness in the Crown case. Although it is to be accepted that much of her evidence was not directly challenged, that does not detract from the fact that her evidence is placed in context when it is understood why she was in the unit, why she did not just leave, why she subjected herself to a second assault at the time of the fatal assault on the deceased and why she was too scared to help the deceased. The evidence also reinforces the explanation as to why the accused did what he did and acted the way he did. It also explains how police came to Unit 1 when they did.
4. Despite this, I am not persuaded that the photographs of Ms Taitoko's injuries are relevant on that basis give that they are described in detail in the Agreed Facts. They did not take the matter any further. That is why I excluded them.
5. That leaves the application of s 137 of the Evidence Act which provides that in a criminal proceeding, "the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant". "Probative value" of the evidence is defined in the Dictionary to the Evidence Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
6. The term "unfair prejudice" is not defined in the Evidence Act. It has been held that the danger of "unfair prejudice" within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; IMM at [44], [52]. More recently, the High Court observed the following in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [73] (footnote omitted): "… 'unfairly prejudicial' in s 135 and 'unfair prejudice' in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way."
7. In Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, Gleeson CJ observed at [22] that "unfair prejudice" "lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use". In doing so, his Honour referenced the decision of McHugh J in Papakosmas v The Queen at [91]-[97].
8. The question arises as to how "unfair prejudice" is to be assessed in the context of a judge alone trial. This question was considered by Johnson J in R v Droudis (No. 13) [2016] NSWSC 1350 at [78]-[95]. His Honour noted (at [79]) that in a judge alone trial the trial judge is required to comply with s 133 of the Criminal Procedure Act and provide reasons. There is a duty to give reasons with respect to findings of fact and principles of law. As his Honour observed, that is a "fundamental difference in the nature of the trial. There is no jury".
9. As his Honour went on to observe, clearly provisions of the Evidence Act such as ss 97, 101, 135 and 137 apply in judge alone trials but, as was acknowledged on behalf of the accused in that matter, "[t]he risk of evidence being used for an impermissible purpose, or directions not being followed or being misunderstood, are significantly decreased" (at [83]).
10. His Honour went on to observe the differences between a trial by jury and trial by judge alone for the purposes of the law of contempt in that the law recognises that it would be wrong to hold that a publication constitutes a contempt because it may influence a judicial officer. His Honour went on (at [87]) to observe the following: "… This is because judicial officers, by their training and experience, are expected to put aside prejudicial remarks and material: Attorney General for NSW v John Fairfax & Sons Limited and Bacon (1985) 6 NSWLR 695 at 709 ('John Fairfax and Bacon') (per McHugh JA). It has been said that Judges are more capable than jurors of putting aside prejudicial matter, including public prejudice, and that 'objectivity and independence are the qualities which judges are expected to bring to judicial determination': Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; 152 CLR 25 at 102 ("BLF Case") (per Mason J)."
11. His Honour then went on to observe the following at [88]: "There is force in the view that similar reasoning applies to the assessment to the risk of prejudice for the purpose of provisions such as ss.101 and 137 Evidence Act 1995. This is not to say that these provisions have no real application when a trial is by Judge alone. Rather, it is to acknowledge that trial Judges have the training, experience and qualities referred to by McHugh JA in John Fairfax and Bacon and by Mason J in the BLF Case."
12. As his Honour observed (at [89]), implicit in the fact that trials are ordered to be by way of judge alone "because of the existence of a substantial volume of prejudicial evidence" is an acceptance that a judge sitting alone will be equipped to determine the trial on the merits, keeping the prejudicial material in proper perspective, citing R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 at [114]-[117]; Redman v R [2015] NSWCCA 110 at [19]. His Honour went on to observe that Judges (sitting without a jury) or Magistrates determining criminal proceedings may exclude evidence on one basis or another during the course of the trial. The fact that they reach a verdict without the excluded evidence is a "practical illustration" of the training, experience and qualities of judicial officers in operation.
13. His Honour then said this at [92]: "The obligation to give reasons is, of course, a fundamental difference between criminal trials by jury and trials by Judge alone. This obligation serves a number of purposes, which include a practical demonstration as to how the Court has guarded against 'prejudicial effect' (s.101) or 'unfair prejudice' (s.137) which might have a stronger foundation at a jury trial. As Martin CJ observed in Arthurs v State of Western Australia at [89], the duty of the trial Judge to give reasons will allow the parties, the community and (where necessary) an appeal court to evaluate whether emotion may have influenced the Court's decision."
14. The duty to give reasons emphasises the important differences between trial by jury and trial by judge alone flowing from the judicial duty to give reasons (at [94]). His Honour concluded the following at [95]: "I approach this judgment upon the basis that the provisions in ss.101(2) and 137 have application and operation at a Judge-alone trial, but that the Court should keep in mind, in considering the issue of prejudicial effect, the important differences between the two forms of trial, and the checks and balances which operate at a Judge-alone trial, in particular by way of the duty to give reasons."
15. This approach was also adopted by Hamill J in R v Qaumi & Qaumi [2016] NSWSC 1473 at [51] and R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487 at [37] and Davies J in R v Davidson (No. 1) [2019] NSWSC 980 at [45]. I have adopted the same approach in considering whether the probative value of the evidence of the assault on Ms Taitoko outweighs its "unfair prejudice".
16. I propose to consider the risk of unfair prejudice arising by the admission of this context evidence in the way described by Johnson J: any risk of the evidence being used for an impermissible purpose is significantly decreased by the fact that this was a judge alone trial.
17. Having regard to these principles, I am satisfied that the probative value of the evidence outweighs any risk that I would use the evidence of the assault on Ms Taitoko in a manner inconsistent with the case. The "checks and balances" in this judge alone trial included that I have provided detailed reasons in my judgment, I have already given myself an anti tendency direction, and I have expressly only had regard to the evidence as part of the context or relationship evidence to better understand the evidence of Ms Taitoko.

Closing addresses

1. Both senior counsel provided detailed and helpful closing addresses. I have considered their arguments in my deliberation but by way of overview, their respective cases were as follows.

Crown closing address

1. The Crown submitted that the intention to inflict grievous bodily harm can be inferred from a series of factors. 1. The severity of the assault itself evidenced by the injuries themselves and the number of injuries: 71 external injuries on all parts of the body of the deceased. 2. The focus of the attack was to the head of Mr Froggatt. When the scalp was retracted it showed "significant acute contusion and oedema". 3. The use of gratuitous violence, namely, whipping Mr Froggatt with the gold chain. The post-mortem photographs (Exhibit B) depict 16 such marks. It was submitted that this shows a significant degree of cruelty. 4. It was common ground that the accused was angry and aggressive with a violent state of mind at the time of the fatal assault. His state of mind related to missing drugs or missing property or his suspicions that Ms Taitoko and Ms Cullen had been performing sex work or he was angry about wanting to know who had been in the premises in his absence. 5. The attack was on a quite small man. Mr Froggatt weighed 63 kg, and he offered no resistance or any threat of retaliation.
2. The Crown relied upon the conclusion in the post-mortem report regarding the internal examination of the skull and the conclusion that: "This man suffered multiple repeated blunt force impacts to his head, face, body and limbs. He had extensive bruising and swelling to his scalp and face, fractured facial bones and bleeding and swelling on his brain. This is [sic] likely resulted in profound unconsciousness and death."
3. Mr Froggatt's DNA was found on the accused's shoes and socks when arrested. The blood was on the toe area, not on the sole of the shoe which would certainly indicate that kicking took place.
4. It was submitted that when one considers the totality of the external injuries and the internal injuries to the head it allows for a very strong inference to be drawn as to the intent of the accused to inflict grievous bodily harm.

Defence closing address

1. It was submitted on behalf of the accused that I would be satisfied of an intention to inflict some injury and pain on Mr Froggatt and to punish him with the intention of extracting information from him and also gain some kind of psychological satisfaction for the accused. In other words, the accused accepted that he is guilty of manslaughter. But, it was submitted, there are seven aspects of the evidence which raise a reasonable doubt that he intended grievous bodily harm.
2. The first circumstance is the initial interrogation of Ms Taitoko and Ms Cullen when the accused came home that evening. He assaulted them to gain information from them and stopped as soon as he obtained that information.
3. The second circumstance is the interrogation of Mr Froggatt. The evidence is that it was not a constant assault for half an hour; it was interspersed with questioning and assaults on the other two women. The accused interrogated Mr Froggatt about what he was doing in Unit 1, about the missing "ice" and about Ms Cullen and Ms Taitoko engaging in sex work in the unit. He was also asking all three of them who else had been in Unit 1 that day. The accused was telling him that he needed the truth and wanted the truth. Mr Froggatt was answering that he did not know. It was submitted that the assault was only to obtain information which he thought he was not getting.
4. As to the severity of the assault, it was submitted that where is a mild tension between Ms Cullen's evidence as to the ferocity of the assault (and that he was "psycho") and the expert evidence because the only broken facial bones were the left orbital floor and eye sockets.
5. The third circumstance was the use of the chains by the accused. It was submitted that their use is consistent with the defence case that this was an act of punishment, not an intentional infliction of grievous bodily harm. It might be, as the Crown contended, that the use of chains was cruel and gratuitous, but it did not cause much injury to Mr Froggatt beyond breaking the skin and being painful. It was submitted that had the accused wanted to cause more harm to Mr Froggatt he could have obtained a weapon such as a knife from the kitchen, but he did not. This was not a "spur of the moment" attack; there was time for him to reconsider his method.
6. The fourth topic was Mr Froggatt's presentation. Throughout the assault he denied any knowledge of the answers sought by the accused. He was crying and in pain and asking the accused to stop. This showed that he was conscious and able to talk, even if he was starting to struggle as it went on. Ms Cullen described Mr Froggatt as speaking "gibberish", but he was still breathing heavily, and he remained moving a bit. It was submitted that I would reject Ms Cullen's evidence that Mr Froggatt became unresponsive during the attack. It was accepted that the post-mortem photographs depicted significant injuries but those taken when the body was in the bath showed less serious injuries.
7. It was submitted that, contrary to the Crown submission, the fact that Mr Froggatt was not offering much resistance or threat does not say much about the accused's intention.
8. The fifth point is how the assault ended. It was submitted that I would accept Ms Taitoko's evidence over that of Ms Cullen as to how the assault ended. It was submitted that this is a significant part of the defence case, namely, that the accused stopped the assault when he got an answer that seems to have satisfied him. It was said that this complicates the finding of proof beyond reasonable doubt of an intent to cause grievous bodily harm.
9. The sixth point was that the accused's anger was redirected from Ms Taitoko when she told him about the second man being at Unit 1 (this is a separate point to the first). The evidence is unclear as to when this happened, but Ms Taitoko thought it was whilst Mr Froggatt was there. This was said to further confirm that the applicant's intention in relation to Mr Froggatt as he did not touch Ms Taitoko again after she gave that information. It was submitted that this was consistent with his intention being to punish and inflict some pain and get some kind of psychological satisfaction out of them other than to cause grievous bodily harm.
10. The seventh and final point is the aftermath to the assault. This was said to be relevant on two bases. The first basis was that some of the efforts to move him, and his seizure may have caused some of the injuries seen post-mortem. The second basis is that it can reflect upon the accused's attitude, that is, that this was a punishment gone wrong rather than there any intent to cause grievous bodily harm.
11. Overall, it was submitted that I would not find that the only rational inference was that the accused intended to cause grievous bodily harm. Notwithstanding the punches and the kicks, the reasonable possibility of the lesser intention could not be excluded. It was submitted that the accused's intention did not extend beyond the incidence of an interrogation to inflict some injury, pain and punishment, and receive some kind of personal satisfaction out of the assault.

Deliberation

1. Having regard to the evidence of Ms Cullen and Ms Taitoko, the crime scene evidence and the post-mortem evidence, I am satisfied beyond reasonable doubt that Mr Froggatt died of head injuries which were inflicted on him by the accused during an assault in the second bedroom of Unit 1 in the early hours of 27 January 2023. There was no evidence to suggest that accused's actions were not voluntary or were done in self-defence. Nor was any issue of causation raised. It was accepted that grievous bodily harm was inflicted on Mr Froggatt, so much is evident from the cause of death in the post-mortem report. The sole issue is whether the accused intended to inflict grievous bodily harm, or "really serious bodily injury" on Mr Froggatt.
2. I have already summarised and considered the evidence that I consider most relevant to the ultimate issue in this trial. Much of it was not disputed; the dispute was largely over what inferences I could draw from that evidence.
3. During closing addresses, I posed a number of questions to counsel to specifically address. They were: What was the force of the blows?; How many blows were struck?; Were there kicks to the head?; How long was the period between the assault and death?; How long did the assault take?; How much blood loss was there? and What is the relevance of that? In my deliberations since then, I have considered the evidence and the arguments put to me as to what inferences I would draw from the evidence more closely. In doing so, I have reformulated those questions and incorporated the answers provided by counsel into these reformulated topics.
4. I consider the following ten established facts to be of particular importance to the central issue: has the Crown established beyond reasonable doubt that the accused intended to inflict grievous bodily harm on the deceased. To be clear, although I refer at times to the "defence case" or "defence argument", as I have already directed myself, it is for the Crown to prove that intent beyond reasonable doubt; it is not for the accused to negate it or to prove anything.

How the fatal attack started

1. I have had regard to the fact that Mr Froggatt was summoned to Unit 1 for questioning then immediately ordered (or taken) into the second bedroom. [161] There was no suggestion on the evidence that the accused attempted to speak with Mr Froggatt to ask him any of the questions he wanted answered before he assaulted him. Rather, once in the second bedroom the violent assault was launched immediately. This is consistent with the accused being full of rage. Mr Froggatt was backed into a corner between a bed, a window and the bedside table. I have had regard to how the attack commenced in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

The length of the fatal attack

1. Included in the Agreed Facts was the evidence from Drew Thornthwaite, who was staying with his father in a unit above Unit 1. He described hearing the assault. He recognised Mr Froggatt's voice during it. Mr Thornthwaite's estimate was that it went for half an hour before he fell asleep during which time he heard "multiple bangs". Ms Taitoko did not give any evidence as to the duration of the assault. Ms Cullen described it as going on for 30 to 40 minutes. She was not challenged on that estimate.
2. I am satisfied that the fatal assault proceeded for at least half an hour and most likely went for longer. Mr Thornthwaite did not describe it stopping; he fell asleep after hearing it for half an hour. I am satisfied that this is a lengthy period of time over which to sustain injuries.
3. I accept the accused's contention that this was not an assault in which Mr Froggatt was constantly assaulted without break over that half hour (plus) period: the accused took time out from the assault to also assault the other two women in the room and to ask Mr Froggatt questions. But even allowing for those interruptions this was a prolonged attack. I have had regard to the length of the attack in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

Eyewitness descriptions of the fatal attack

1. I have already summarised the eyewitness accounts of the attack. In short, Ms Taitoko described the accused directing eight closed fist punches to Mr Froggatt's face and four punches to his stomach. She also described how the accused "just kept hitting him, just kept punching him" [162] although she also explained that there was questioning in between those strikes. [163]
2. Ms Cullen's evidence was that there was an impression of more than ten punches to the head and that Mr Froggatt was kicked to the abdomen and upper body about five times. There was not a great degree of particularity about that; it was in a general range. Ms Cullen's impression was that the punches were "very forceful". [164]
3. The main focus of challenge to Ms Taitoko's account was whether the punches were normal or "hard". I ultimately am not satisfied that much turns on this given that such descriptions are relative. Ms Taitoko was not asked to explain them. Nor am I satisfied that her account of how many times Mr Froggatt was kicked and punched should be taken as being completely accurate; it seems to be more likely to be an impression or estimate. It is generally consistent with the evidence of Dr Murray, and I have placed considerable weight on that expert evidence.
4. As for the post-mortem photographs, there can be no doubt that they showed bruising that appeared significantly more prominent than the bruising on the deceased when his body was first found in the bath. The post-mortem photographs were initially objected to on that basis. Dr Murray was cross-examined about them as follows: [165] "Q. If, for example, you had conducted your post‑mortem on 29 January, would the recording of the bruising have been different because the marks would have been much smaller and less severe? A. I think they might have been less obvious externally. I don't think 'severity' is the right term. It's more what's evident to the naked eye, so externally, they might not have been as apparent on the 29th, however, internally, once we reflect the skin back on the chest, we would have still seen them, the amount of bruising. It's just the external appearance may not have been as obvious."
5. In the photographs taken of the deceased's body in the bath, separate bruises can be seen on the deceased's forehead whereas in the post-mortem photographs the bruising to the forehead was described as "confluent". Dr Murray explained this as follows: "A. Indicating there was trauma to the area and it appears that - it was difficult to define individual impact points or individual blows because there was so many that the bruising into the tissue from the impact had merged altogether. So what I have described as 'confluent area of contusion' means there was a large area that was covered in bruising, basically, involving the left side of his face, and I think I refer to a few points of injury as confluent contusion because there were probably smaller ones but they kind of all morphed into one larger area of bleeding under the skin. Q. To sum that up, there may have been more than one trauma in that area but you just treated it as one because it merged? A. Yes, I'm describing what I can see on the external appearance of the face and there is just extensive bruising, yes."
6. Dr Murray was cross-examined about this difference between the two groups of photographs [166] and she explained that as the bruises worsened in appearance over time, they ran into each other and could not be distinguished from each other. But this does not mean that the bruising was more severe in the later photographs; only that it was more obvious.
7. I have considered the descriptions of the assault as against the expert evidence. The eyewitnesses were not challenged in any significant way as to their descriptions of the assault. Instead, the descriptions were relied upon as being consistent with an intention to inflict something less than grievous bodily harm on the deceased. But their descriptions do not fully align with the injuries received nor even with Mr Thornthwaite's description of hearing "multiple bangs" over at least half an hour. I have had regard to these descriptions of the attack in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

Significance of the use of chains during the fatal attack

1. The photographs show 16 injuries to Mr Froggatt caused by being whipped with the gold chain. These injuries broke the skin and would have bled. The whips caused a distinctive mark. They may have accounted for some of the blood spatters. It is not possible to say. Mr Watson also found chain marks on the back of the door in the second bedroom which is consistent with the accused bringing his arm back to whip the deceased with great force. This is also generally consistent with Ms Cullen's description. Ms Cullen said that collectively the three of them were whipped with the chain about five to ten times all to their upper bodies. The photographs show a slight injury caused by the chain to her arm.
2. Both the Crown and the accused relied upon this evidence of whipping in support of their respective cases. On behalf of the accused, it was submitted that the injuries caused by the whipping with the chain could not amount to grievous bodily harm which points against that being his intention during the assault. Further, it was submitted that the accused could have retrieved a more serious weapon than a chain had he wanted to inflict grievous bodily harm, but he did not. The Crown, on the other hand, relied on the gratuitous cruelty of this aspect of the overall assault as being consistent with an intent to inflict grievous bodily harm on the deceased.
3. I have some difficulty with the accused's argument on this issue. The whipping with the chain was not the only injury inflicted on the deceased. It has to be considered in the context of the prolonged assault as a whole which included different types of injuries being inflicted to different parts of the body cumulatively over a period of time, in particular to the face and head. I have had regard to the gratuitous cruelty of this violent whipping of the deceased in the context of the overall sustained assault when considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

When did the accused stop assaulting the deceased?

1. An important part of the defence case was that the accused stopped assaulting the deceased when the latter volunteered that "the Yugoslavs" had set him up. [167] Ms Taitoko described the assault ending when Mr Froggatt fell to the ground after saying this to the accused. Ms Cullen, on the other hand, did not recall this and denied that it was something that Mr Froggatt said which prompted the accused to stop assaulting him. Her evidence was that the assault came to an end because Mr Froggatt had stopped answering and became unresponsive. [168]
2. The accused submitted there were three reasons why I would not accept Ms Cullen's evidence on this issue. Firstly, her reliability was affected by her being unwell, not taking her medication, using "ice" and cannabis, and not sleeping well. A still photograph from the time she was arrested when compared with how she appeared in the witness box shows her appearance was much changed which is consistent with her now being medicated and not taking illicit drugs.
3. The second reason why it was said that I would prefer Ms Taitoko's version is that Ms Cullen exaggerated her evidence by saying that the accused was "psycho" over the whole period before Mr Froggatt arrived right through to the police coming. She described him as quite erratic, very violent, uncontrollable and irrational for the whole time which was inconsistent with Ms Taitoko's account. It was submitted that this version was an exaggeration and unreliable.
4. The third reason was that Ms Cullen prevaricated in this evidence in any event. She described the deceased as unresponsive at a time when no‑one was speaking to him to attempt to get a response.
5. It was submitted that this was an important part of the defence case.
6. Ms Cullen may have had a poor recollection of some of the assault but much of her evidence was consistent with Ms Taitoko's as well as being consistent with the physical evidence. I have not had regard to Ms Cullen's evidence that the accused was "psycho" the whole time. Rather, I have focused on the evidence of his actions during the fatal assault. Overall, I accept Ms Taitoko's evidence that the assault stopped when Mr Froggatt gave the accused an answer that he wanted. Despite this, for reasons I will shortly explain, I am not satisfied that fact assists the defence case to the extent that it was submitted it did.

The motive for the fatal attack

1. It was somewhat unclear what information the accused was looking for when he assaulted the deceased. I do not consider the precise reason to have any particular significance. Whether it was that the accused believed that some of his "ice" was missing, whether he wanted to know who had visited Unit 1 and/or whether men had attended as clients of Ms Cullen and Ms Taitoko does not really make any difference. The Agreed Facts reflect that the accused's concern was about his missing property. Whatever be the particular motive, it was accepted that the accused was angry and trying to get answers from Mr Froggatt and that was the motive for the attack.
2. The accused relied on the fact that his motive included getting some psychological satisfaction from assaulting, torturing or interrogating the deceased in order to get information as supporting the defence case. It was submitted that this was not consistent with the accused intending to inflict grievous bodily harm on the deceased. Senior counsel for the accused pointed to the fact that the accused assaulted the two women in Unit 1 with the same motive shortly before the fatal assault on the deceased. This was relied upon in support of the defence case that the accused only wished to get information out of the deceased and from that it can be inferred that he did not intend grievous bodily harm.
3. The difficulty I have with this argument is that implicit in it is the assumption that the assault would not end until the relevant victim had provided the required information.
4. There was evidence that during the fatal assault the accused said, "you're all gonna die if you don't tell me who's been in the apartment". I accept the defence submission that I would not rely on this utterance by the accused to infer that he intended to kill the deceased. That is not the Crown case in any event. But it is consistent with the accused's intention that he did not propose to stop until he got the answer or answers he wanted which, on the defence case, is what occurred.
5. It may well be that when the accused commenced his assault, he did not intend to inflict grievous bodily harm on the deceased. I do not need to determine that issue if I am satisfied beyond reasonable doubt that this became his intention as the assault progressed. What is clear is that the deceased was not giving the accused the answers that he wanted, and the assault, including blows to the head, continued for at least half an hour until he did. When the answers were not provided, the accused did not relent. He did not give up. He continued.
6. I accept that, depending on the force used, one or two "normal" punches to the head may not be inflicted with the intent to inflict grievous bodily harm but that is not what happened here. As the accused continued to assault Mr Froggatt, he knew that he had already been subjected to previous punches, kicks and whips with the chain because he had inflicted them. This means that the later punches and kicks would have a different quality to the earlier ones as they had a cumulative effect. I have had regard to the fact that the accused continued to assault Mr Froggatt until he obtained the answer(s) he wanted in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

When did the deceased fall to the ground?

1. Ms Taitoko described Mr Froggatt falling down at the end. Ms Cullen described him being on the floor during the assault.
2. I am well satisfied that some of the assault occurred whilst Mr Froggatt was on the ground; so much was accepted on behalf of the accused during closing addresses. Mr Froggatt received injuries and bruising all over his body. I am satisfied that most of the injuries to his legs were caused when he was on the ground; there was no suggestion he was punched on his legs and that would be an unlikely scenario in any event. Ms Taitoko had to be reminded that she initially told police (in her BWV) that there were kicks as well as punches. Ms Cullen described kicks to Mr Froggatt's upper body, chest and torso while he was on the ground about five times [169] and that he was on the ground trying to defend himself by raising his arms and covering his face. [170] He was crying at the time of the assault and asking the accused to stop. [171]
3. I accept Ms Taitoko's evidence that Mr Froggatt fell to the ground at the end; it was not challenged. But Mr Froggatt must have been on the ground prior to that as well to explain the numerous injuries to his lower body which were consistent with kicks and being assaulted when he was down. I am satisfied that Mr Froggatt was on the ground for some of the assault and then fell down again at the end of it. I have taken this into account in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

The deceased's appearance during the fatal attack

1. The accused relied upon the fact that there would not have been many visible injuries to Mr Froggatt during the assault as going to the central issue of intent. It was submitted that he would not have known how badly Mr Froggatt was being injured as a result of the assault and that degree of injury was not intended.
2. Dr Murray gave evidence that some of the bruising would have appeared quickly. That is consistent with Ms Cullen's evidence who described "significant swelling" to Mr Froggatt's face and stated that it was already quite inflamed and red during the assault. Ms Taitoko did not describe seeing any injuries to Mr Froggatt until he fell and after that she only heard him in the dark. But Ms Taitoko did not say there were no injuries. She was not directly asked about observing any injuries. She was asked whether Mr Froggatt had started to bleed much before the lights were turned off and she replied, "I don't know, I couldn't tell".
3. Reliance was placed on the inconsistency between the observations of Ms Taitoko and Ms Cullen as to the rate of Mr Froggatt's decline. In this regard, I note the evidence of Dr Murray that after suffering head injuries such as these, a person will initially become more agitated, then become less coherent, then unconscious, and then deeply unconscious. Ms Cullen described Mr Froggatt as becoming incoherent which is consistent with Dr Murray's evidence.
4. Dr Murray's evidence was that in order for the brain to swell in the skull there needs to be time, which she measured in "hours". The accused accepted that there was a time when Mr Froggatt was unresponsive and not moving but there was some confusion in the evidence as to when that happened.
5. There are a number of possible explanations for the fact that the two eyewitnesses gave timing estimates which put the time between the assault and death as being less than an hour. They were under stress, they had consumed drugs, they were not medical experts and there were the other matters to which I have already referred. Although much of their evidence accords with the medical and expert evidence, I find it difficult to accept their evidence as to when Mr Froggatt died based on their estimates of time. The expert evidence was that it would have been more than an hour after the assault before he died but that is a slow process going through the various stages.
6. I have already accepted the evidence that the accused stopped the assault when Mr Froggatt told him that "the Yugoslavs" set him up, but I am satisfied that Mr Froggatt had already started the process of decline described by Dr Murray by that time. This is consistent with Ms Cullen's evidence that he was speaking "gibberish" prior to the assault ceasing and later that his breath was "raspy" after he fell down.
7. I am satisfied that Mr Froggatt was evidently struggling towards the end of the assault. He already had significant swelling to the left side of his face and was having difficulty breathing. [172] His breathing was described as "heavy" or at a later time, as "gurgling". [173] At least some of this would have been obvious to the accused. I am not satisfied that Mr Froggatt presented with no difficulties until the minute the accused left the room and only started to struggle then. As Ms Taitoko sat in the dark, she heard him struggling from the moment the accused left. Further, Ms Taitoko's evidence was that it was five minutes after the accused stopped the assault that he and Ms Cullen left the room. This was after Mr Froggatt fell down.
8. The accused also relied on the absence of evidence of any significant amounts of blood apparent on Mr Froggatt and at the scene. Dr Murray's evidence was that this was not a case where there would have been significant external bleeding or spurting. Although Ms Taitoko and Ms Cullen's evidence was that they cleaned up the blood after the fatal assault, it is to be accepted that the head injuries would not have caused significant gushes of blood. Even after the cleaning efforts there was some blood splatter on the wall, the curtain and the bedside table and a small amount on Mr Froggatt's clothes. Ms Cullen described a puddle on his face which is where the laceration was.
9. Having regard to the evidence of blood even after the clean-up, I am satisfied that some blood would have been apparent to the accused. I am not persuaded that the fact that there was no evidence of "flowing" blood supports the defence case that the accused did not know how seriously he was hurting Mr Froggatt.
10. In addition to what the accused would have observed of Mr Froggatt's injuries, he was aware that Mr Froggatt was not fighting back. He was aware that he was a slighter person than him weighing only 63 kg. He was also aware that he had repeatedly assaulted Mr Froggatt for at least half an hour.
11. I have had regard to the fact that Mr Froggatt had some bruising, some blood and was starting to deteriorate during the prolonged assault in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

The focus of the attack: The deceased's head

1. There was no challenge to Dr Murray's findings in the post-mortem report and in her evidence that the left eye socket had been subjected to significant force to cause shattered pattern of fracturing. [174] Nor to her evidence that there was, "significant blunt force trauma" to the scalp apparent from the haemorrhaging underneath the scalp. [175]
2. The assault resulted in a "blowout" fracture to the orbital wall and floor. Although Dr Murray accepted that that is an easier bone to break than, for example, the jawbone, the fact remains that the accused broke Mr Froggatt's facial bone around the eye during the prolonged assault.
3. I have considered whether I could be satisfied that the accused kicked Mr Froggatt in the head when he was on the ground. In her BWV, Ms Taitoko described the accused delivering "big kicks to the head", kicking him "from that end to this end of the wall". [176] She had to be reminded of this, and Ms Cullen did not describe kicks to the head. Mr Froggatt's blood was found on the accused's shoes and socks. I am well satisfied that Mr Froggatt was kicked to his body whilst he lay on the ground but the question of whether he was kicked to the head is more difficult to determine.
4. It was submitted on behalf of the accused that there was something in the order of five to ten kicks to the upper body area, but that I would not find they were directly to the head. I am ultimately of the view that given the nature of the injuries and the trauma to the head, there may well have been some kicks to the head, but I could not be satisfied they delivered any more force than the punches did.
5. Significantly, I am satisfied based on the evidence of the eyewitnesses and Dr Murray that there were repeated blows to the head. Even accepting that the accused used predominantly his fists when assaulting Mr Froggatt to the head (as opposed to a weapon), a reasonable person would know that repeated blows to the head will cause grievous bodily harm.
6. I have had regard to the fact that the focus of the injury was to the head in considering whether I am satisfied beyond reasonable doubt that that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

The aftermath of the fatal attack

1. As for the post offence conduct, the Crown ultimately accepted this was neutral evidence. The accused relied on it in three respects. First, it was submitted that the fact that the accused wanted Ms Taitoko to revive Mr Froggatt was inconsistent with him intending to inflict grievous bodily harm. Although I am satisfied that it is inconsistent with him intending to kill Mr Froggatt, I am not satisfied that it is necessarily inconsistent with him intending to inflict grievous bodily harm on him.
2. The second aspect of the post offence conduct relied upon by the accused is that in moving the body the accused may have caused some of the bruising to the body. Given that Mr Froggatt was moved at one stage and dragged under his arms, I accept that some bruising may have been caused in this way but not such as to have made any significant difference. I am also satisfied that it is likely that the fractured ribs Mr Froggatt suffered more likely came from resuscitation attempts.
3. The third aspect of the events after the assault is that there was evidence that Mr Froggatt had a seizure (consistent with the expert evidence of what can occur after a head injury). The accused relied on the fact that Mr Froggatt hitting his body on the floor may have caused some bruising too. Again, I accept that too is possible.
4. I have considered these matters in determining whether I am satisfied beyond reasonable doubt that that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

Conclusion

1. I have considered all of the evidence in the context of these subject areas. I have had regard to the cumulative effect of the evidence as to how the fatal assault started, how long it went on for, the whipping of Mr Froggatt with a chain during the assault, the motive, how it stopped, Mr Froggatt's appearance, that Mr Froggatt was assaulted on the ground, that the focus of the attack was Mr Froggatt's head and Dr Murray's description of the head injuries.
2. Having regard to all of this evidence, I am satisfied beyond reasonable doubt that when the accused, Daniel Hasapis, assaulted Mr Froggatt he did so with the intention to inflict grievous bodily harm.

VERDICT

1. Accordingly, my verdict is that the accused is guilty of the murder of Sean Froggatt.

Endnotes

1. Agreed Facts at [1]
2. Agreed Facts at [2]
3. Agreed Facts at [3].
4. Agreed Facts at [4].
5. Agreed Facts at [5].
6. Agreed Facts at [6].
7. Agreed Facts at [7].
8. Agreed Facts at [8].
9. Agreed Facts at [9].
10. Agreed Facts at [10].
11. Agreed Facts at [11].
12. Tcpt, Monday 17 February 2025, p. 40.
13. Tcpt, Tuesday 18 February 2025, p. 91.
14. Agreed Facts at [12].
15. Tcpt, Monday 17 February 2025, pp. 38-39.
16. Tcpt, Monday 17 February 2025, p. 40.
17. Tcpt, Tuesday 18 February 2025, pp. 90-91.
18. Agreed Facts at [13].
19. Tcpt, Monday 17 February 2025, p. 41.
20. Tcpt, Tuesday 18 February 2025, pp. 91-92.
21. Tcpt, Tuesday 18 February 2025, p. 93.
22. Tcpt, Tuesday 18 February 2024, pp. 93-95.
23. Agreed Facts at [14].
24. Agreed Facts at [15].
25. Agreed Facts at [16].
26. Agreed Facts at [17].
27. Agreed Facts at [18].
28. Agreed Facts at [19].
29. Agreed Facts at [20].
30. Agreed Facts at [21].
31. Tcpt, Monday 17 February 2025, p. 44.
32. Tcpt, Monday 17 February 2025, pp. 44-45.
33. Tcpt, Monday 17 February 2025, pp. 46-47.
34. Tcpt, Monday 17 February 2025, pp. 48-49.
35. Tcpt, Monday 17 February 2025, pp. 49, 54, 60.
36. Tcpt, Monday 17 February 2025, pp. 63-64.
37. Tcpt, Monday 17 February 2025, pp. 69-70.
38. Tcpt, Monday 17 February 2025, pp. 71-72.
39. Tcpt, Monday 17 February 2025, pp 74-75.
40. Tcpt, Monday 17 February 2025, pp. 74-76.
41. Tcpt, Monday 17 February 2024, pp. 80-82.
42. Tcpt, Tuesday 18 February 2024, pp. 95-96.
43. Tcpt, Tuesday 18 February 2024, pp. 96-97.
44. Tcpt, Tuesday 18 February 2024, pp. 97-98.
45. Tcpt, Tuesday 18 February 2025, pp. 98-99.
46. Tcpt, Tuesday 18 February 2025, pp. 99-100.
47. Tcpt, Tuesday 18 February 2025, pp. 103-104.
48. Tcpt, Tuesday 18 February 2025, pp. 104-106.
49. Tcpt, Tuesday 18 February 2025, pp. 107-108.
50. Tcpt, Tuesday 18 February 2025, p. 109.
51. Tcpt, Tuesday 18 February 2025, pp. 109-110.
52. Tcpt, Tuesday 18 February 2025, p. 111.
53. Tcpt, Tuesday 18 February 2025, p. 112.
54. Tcpt, Tuesday 18 February 2025, pp. 112-113.
55. Tcpt, Tuesday 18 February 2025, pp. 113-115.
56. Tcpt, Tuesday 18 February 2025, pp. 118-20.
57. Tcpt, Tuesday 18 February 2025, p. 121.
58. Tcpt, Tuesday 18 February 2025, p. 122.
59. Tcpt, Tuesday 18 February 2025, pp. 124-125.
60. Tcpt, Tuesday 18 February 2025, pp. 125-126.
61. Tcpt, Monday 17 February 2025, p. 50.
62. Tcpt, Monday 17 February 2025, pp. 65-66.
63. Tcpt, Monday 17 February 2025, pp. 50, 52.
64. Tcpt, Monday 17 February 2025, pp. 51, 52.
65. Tcpt, Monday 17 February 2025, p. 51.
66. Tcpt, Monday 17 February 2025, p. 66.
67. Tcpt, Monday 17 February 2025, pp. 82-83.
68. Tcpt, Monday 17 February 2025, p. 53.
69. Tcpt, Tuesday 18 February 2025, pp. 100-101.
70. Tcpt, Tuesday 18 February 2025, pp. 101, 120.
71. Tcpt, Tuesday 18 February 2025, p. 121.
72. Tcpt, Tuesday 18 February 2025, p. 103.
73. Tcpt, Tuesday 18 February 2025, pp. 101-102.
74. Tcpt, Tuesday 18 February 2025, pp. 102.
75. Agreed Facts at [22].
76. Agreed Facts at [23].
77. Agreed Facts at [24].
78. Tcpt, Monday 17 February 2025, p 6.
79. Exhibit B, photographs 128 and 129.
80. Tcpt, Monday 17 February 2025, p. 10.
81. Exhibit B, photograph 158.
82. Exhibit 2, photograph 192.
83. Tcpt, Monday 17 February 2025, p. 33.
84. Tcpt, Monday 17 February 2025, pp. 14-15; Exhibit B, photographs 194, 204 and 206.
85. Tcpt, Monday 17 February 2025, p. 16; Exhibit D, R65.
86. Tcpt, Monday 17 February 2025, p. 34.
87. Tcpt, Monday 17 February 2025, pp.16-17.
88. Tcpt, Monday 17 February 2025, p. 18.
89. Exhibit B, photographs 207-220.
90. Tcpt, Monday 17 February 2025, p. 17.
91. Exhibit B, photographs 221, 222 and 223.
92. Tcpt, 17 February 2025, p. 18.
93. Tcpt, 17 February 2025, p. 19.
94. Exhibit B, photographs 228, 229 and 233.
95. Tcpt, Monday 17 February 2025, p. 20.
96. Tcpt, Monday 17 February 2025, p. 21.
97. Tcpt, Monday 17 February 2025, p. 21.
98. Exhibit B, photographs 246, 255, 256 and 257.
99. Exhibit B, photographs 4, 5, 6, 10, 11, 25, 26, 29, 32, 33, 34 and 36.
100. Tcpt, Monday 17 February 2025, p. 30.
101. Tcpt, Monday 17 February 2025, p. 30.
102. Exhibit B, photographs 25, 26, 29, 32, 33, 34 and 36.
103. Tcpt, Monday 17 February 2025, pp. 31-32.
104. Tcpt, Monday 17 February 2025, p. 32.
105. Tcpt, Monday 17 February 2025, pp. 36-37.
106. Tcpt, Monday 17 February 2025, p. 15; Exhibit B, photographs 194, 199.
107. Tcpt, Monday 17 February 2025, p. 33.
108. Tcpt, Monday 17 February 2025, p. 34.
109. Tcpt, Monday 17 February 2025, pp. 9-10.
110. Tcpt, Monday 17 February 2025, pp. 26-27.
111. Tcpt, Monday 17 February 2025, p. 26.
112. Tcpt, Monday 17 February 2025, p. 27.
113. Exhibit B, photographs 365-370.
114. Exhibit B, photographs 371-373.
115. Exhibit B, photographs 374-380, 382, 385, and 388.
116. Exhibit B, photographs 389-391.
117. Tcpt, Tuesday 17 February 2025, pp. 28-29.
118. Tcpt, Tuesday 17 February 2025, pp. 35-36.
119. Tcpt, Tuesday 17 February 2025, p. 36.
120. Tcpt, Tuesday 17 February 2025, p. 25; Exhibit B, photographs 350, 351, 352 and 353.
121. Tcpt, Tuesday 17 February 2025, p. 26; Exhibit B, photographs 358 and 362.
122. Tcpt, Tuesday 17 February 2025, p. 25. Exhibit B, photographs 261, 262, 263, 265, 266, 267.
123. Tcpt, Monday 17 February 2025, p. 35.
124. Tcpt, Tuesday 18 February 2025, pp. 134-136.
125. Tcpt, Wednesday 19 February 2025, p. 142; Post-mortem report, p. 3.
126. Tcpt, Wednesday 19 February 2025, pp. 153-154; Post-mortem report, p. 3.
127. Tcpt, Wednesday 19 February 2025, p. 154; Exhibit B, photographs 414-415, 499.
128. Tcpt, Friday 21 February 2025, p. 190.
129. Post-mortem report, p. 3.
130. Tcpt, Wednesday 19 February 2025, p. 150.
131. Tcpt, Wednesday 19 February 2025, p. 150, Post-mortem report, p. 3.
132. Post-mortem report, pp. 2-3.
133. Tcpt, Wednesday 19 February 2025, p. 147, Exhibit K1, Post-mortem report p. 7.
134. Tcpt, Wednesday 19 February 2025, p. 148.
135. Tcpt, Wednesday 19 February 2025, pp. 151-152.
136. Tcpt, Wednesday 19 February 2025, p. 160.
137. Tcpt, Wednesday 19 February 2025, p. 152.
138. Tcpt, Wednesday 19 February 2025, p. 161.
139. Post-mortem report, p. 7.
140. Tcpt, Wednesday 19 February 2025, pp. 159-160.
141. Tcpt, Wednesday 19 February 2025, p. 160.
142. Post-mortem report, p. 3.
143. Tcpt, Wednesday 19 February 2025, p. 151.
144. Tcpt, Wednesday 19 February 2025, p. 151.
145. Tcpt, Wednesday 19 February 2025, p. 162.
146. Tcpt, Wednesday 19 February 2025, p. 162.
147. Tcpt, Wednesday 19 February 2025, p. 163.
148. Tcpt, Wednesday 19 February 2025, pp. 162-163.
149. Tcpt, Wednesday 19 February 2025, p. 163.
150. Tcpt, Wednesday 19 February 2025, p. 163.
151. Tcpt, Wednesday 19 February 2025, p. 163.
152. Tcpt, Wednesday 19 February 2025, p. 164.
153. Post-mortem report, p. 3; Exhibit B, photograph 428; Tcpt, Wednesday 19 February 2025, p. 153.
154. Post-mortem report, p. 3.
155. Tcpt, Wednesday 19 February 2025, p. 146.
156. Tcpt, Wednesday 19 February 2025, p. 146.
157. Tcpt, Wednesday 19 February 2025, pp. 156, 158.
158. Tcpt, Wednesday 19 February 2025, p. 158.
159. Tcpt, Wednesday 19 February 2025, p. 159; Exhibit B, comparing photographs 258 and 432.
160. Tcpt, Wednesday 19 February 2025, p. 159.
161. Tcpt, Monday 17 February 2025, p. 43; Tuesday 18 February 2025, p. 95.
162. Tcpt, Monday 17 February 2025, p. 45.
163. Tcpt, Monday 17 February 2025, p. 75.
164. Tcpt, Tuesday 18 February 2025, pp. 96, 126.
165. Tcpt, Wednesday 19 February 2025, p. 158.
166. Tcpt, Wednesday 19 February 2025, p. 147.
167. Tcpt, Monday 17 February 2025, p. 46.
168. Tcpt, Tuesday 18 February 2025, pp. 109, 111.
169. Tcpt, Tuesday 18 February 2025, p. 97.
170. Tcpt, Tuesday 18 February 2025, p. 97.
171. Tcpt, Monday 17 February 2025, p. 44.
172. Tcpt, Tuesday 18 February 2025, p. 108.
173. Tcpt, Tuesday 18 February 2025, pp. 111, 118.
174. Tcpt, Wednesday 19 February 2025, p. 152.
175. Tcpt, Wednesday 19 February 2025, p. 153.
176. Tcpt, Monday 17 February 2025, pp. 63-64. 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: 28 February 2025