R v Huber

Sometimes, however, a particular fact is crucial or essential to the ultimate conclusion and, in those circumstances, if that fact were not proved beyond reasonable doubt, then the whole cable fails and the weight of the burden of proving guilt beyond reasonable doubt cannot be sustained. In that sense, the essential fact is the weak link in a chain of reasoning. [7]

The deceased was, on the observation of Ms Bostick, more withdrawn after her stroke and had lost “chunks of memory”. She did not seem frailer in her movements.

Mr Turnbull had been asleep on the side of the building between the Salvation Army and the Council Chambers in a covered area that was enclosed by a fence, generally referred to in the proceedings as the children’s play area. It had soft flooring.

The man and woman approached the fenced area from the carpark, which is at the rear of the Salvation Army premises adjoining Holden Lane. Mr Turnbull corroborated that the couple, having been offered space at the side of the premises with Mr Turnbull and Ms Craigie, walked off. While the man was saying things to the woman, he could not hear anything that the man was saying.

Mr Turnbull and Ms Craigie moved to their next accommodation the next morning after calling the Department of Housing and receiving temporary accommodation at Lismore.

As a consequence of evidence to which the Court will shortly discuss, it was submitted that the events to which Ms Craigie and Mr Turnbull attest occurred before the night of 2 January 2023. The rationale for such an approach was that the belongings that were left behind by them were not noticed on the morning of 3 January 2023.

If that were the case, the couple to whom Ms Craigie and Mr Turnbull referred would not have been the accused and the deceased. While the theory is an interesting one, it is far more probable that the couple were the deceased and the accused. First, the absence of evidence relating to the belongings of Ms Craigie and Mr Turnbull in the passageway on the morning of 3 January 2023 may result from a number of quite different factors. Simply, people may not have noted or noticed the belongings in the area. Further, Mr Leadbetter, who gave evidence in the proceedings, may have cleaned out the belongings at a very early hour of 3 January or on 2 January.

It is far more likely that it was 2 January 2023. Mr Turnbull and Ms Craigie each gave evidence that they rang the Department of Housing (as they called it) at 9am the next morning, waiting for the office to open. It is not suggested that they rang from the side passage to the Salvation Army building. If they were waiting for the Department to open for business hours, which was the effect of the evidence, then it could not have been on 2 January 2023, because that was a public holiday. Nor could it have been on either 31 December 2022 or 1 January 2023, because that was the weekend.

I am not suggesting that emergency housing may not be contactable over the weekend or out of business hours, but it is clear from the evidence that the business hours of the persons whom Mr Turnbull and/or Ms Craigie contacted were ordinary opening hours. Further, there is no suggestion of any other couple meeting the description provided, who sought and/or obtained a place to sleep in the passageway.

While the demeanour of Mr Turnbull was more polished and impressive, one must be careful to draw inferences as to reliability or truthfulness from the appearance of witnesses, particularly where that appearance does not relate to the manner in which questions are answered. I accept the evidence of Ms Craigie, and I draw the inference that the couple in question were the accused and the deceased. However, it is hardly a matter that is crucial to the findings in this case other than it is evidence of the relationship between the deceased and the accused, about which there is abundant evidence otherwise.

Mr Roach works for Ballina Shire Council, rides a bike to work and leaves the bike in the car park behind what is described as the “flood building”, the building to the south-east of the Salvation Army building, being the building next door to the Salvation Army building along both Tamar Street and Holden Lane. [15] He described the deceased wearing a floral dress with bits of purple, pink and white, possibly shin length. This is the same dress depicted in the CCTV footage that the deceased was wearing on 2 January 2023 and, it seems, the same dress in which she was found on 4 January 2023.

Having noticed the female, Mr Roach did a U-turn on his bike in the carpark next to the Salvation Army carpark and noticed a male at the entrance to the Salvation Army building from the Salvation Army carpark area on Holden Lane. The male was talking to the female, but he could not hear anything that was said.

As Mr Roach waited to cool off before entering the Council building, he noticed the time was 6.48am. He went in to have a shower and on exiting the building did not see either the male or the female.

At about 5.30pm on 3 January when Mr Roach was leaving work, he noticed a makeshift clothesline with towels and plastic bags on the ground underneath the clothes line. He also saw the deceased, being the same woman he had seen in the morning, in the rear carpark of the Council property and she was talking to someone but he was unaware to whom the deceased was talking.

There is CCTV footage of each of the deceased and the accused during the course of 3 January.

During 3 January, the accused and Chris Daley exchanged phone calls and text messages. There were five voice calls during the day, and at about 6pm, the accused sent a text message to Mr Daley reading, “if I called U would I ever waste yr time?”.

Counsel for the accused suggested to Mr Daley during the course of cross-examination that Mr Daley and the accused were involved in a drug transaction. Mr Daley denied that proposition, but the number of calls and their frequency, together with the message which has been quoted leaves a significant suspicion that such was the case. If it were the case, it matters very little in the scheme of these proceedings, except that it may explain some aspects of reluctance by Mr Daley in the evidence he gave.

Just after the message which was the combination of a series relating to Mr Daley and the accused meeting up at the hotel, the accused was seen on CCTV footage entering the beer garden of the Australian Hotel. He was wearing green cargo shorts and a white t-shirt, which was the outfit he had been wearing in the taxi that morning and was eventually found with significant blood stains.

The accused left the beer garden at 6.25pm and walked in the direction of the Salvation Army.

At 7.03pm, Chris Daley made a call to the triple zero emergency number, from outside the Council Chambers on Tamar Street. The call is in evidence. He had just passed by the Salvation Army Building on Tamar Street and, in his evidence adduced in the proceedings, was “slowly putting along”. He was travelling slowly because he was taking his dog for a walk and the dog was trotting beside him.

In the call, Mr Daley relevantly said, “There’s a man bashing the hell out of his woman at the back of the Salvation Army in Ballina. … Yeah, I’m just letting you know there’s a woman getting bashed behind Salvation Army in Ballina”. There was some unfortunate confusion relating to the description that it was “at the back” or “behind” the Salvation Army building to which these reasons will refer.

In his oral evidence, despite being pressed, or perhaps because he was, Mr Daley said he could not see anything; he only heard it. A photograph of the Salvation Army building from Tamar Street discloses that the gate to the side passage is capable of being seen through.

Nevertheless, and despite his description on the emergency call, Mr Daley maintained that he only heard it, but it sounded like a man bashing the hell out of his woman. Mr Daley did not recognise either one of the voices. Nor could he hear what the man was saying, but it sounded like forceful murmuring.

Mr Daley did not recall the text message or the phone calls and did not recall seeing the accused in the beer garden of the Australian Hotel on the evening of 3 January 2023. He did recall that he had seen the accused on the street and had said hello.

Mr Daley did not give his name on the emergency call as he did not want to be involved but felt it was necessary to give a “heads up”. In cross-examination, Mr Daley not only denied supplying any illicit drugs to the accused but made it clear that he did not touch methadone, the relevance of which is presumably to avoid any involvement in the findings in the toxicity report.

In the incident which Mr Daley referred to as a man bashing a woman, he heard the woman shout “stop” once or twice, or perhaps three times. He maintained that he did not see anything but heard an argument and heard “a man getting rough with a woman saying ‘stop’”. He could not tell how far inside the timber gates the man and woman were located.

I accept that at 7.03pm a man was bashing a woman in the passageway at the side of the Salvation Army building where, eventually, the deceased was found. I doubt that Mr Daley only heard the events, but ultimately it matters not. I accept that what he observed was properly described in the triple zero call as a man bashing a woman.

About 20 minutes later at 7.20pm, Ms Lesley Hudson-Moon observed a woman through the fence from Tamar Street. Ms Hudson-Moon worked at Australia Post and provided a statement to police on 5 January 2023.

On 3 January 2023 at about 7.20pm, Ms Hudson-Moon was walking her dogs on the footpath in Tamar Street in a westerly direction, which, according to Exhibit C and the maps in evidence, is in truth a north-westerly direction along Tamar Street towards Moon Street. Ms Hudson-Moon walked past the Council Chambers and passed the Salvation Army building.

When she passed the slatted fence that divided the passageway from Tamar Street, Ms Hudson-Moon noticed a woman lying on the ground and she heard a man grumbling and swearing. She yelled out, “Are you – are you okay, mate?”, to which the man replied, “Yeah”. However, in evidence, it was more a groan and gruff noise than a word that was indicated by the witness. Ms Hudson-Moon felt “a little unease” and left.

Ms Hudson-Moon marked her location and movements on a photograph on which she drew, in stick figure form, the woman that she saw behind the gate. [16]

Ms Hudson-Moon explained that she could see the head and body of the person lying flat. She did not know what the person was lying on. Ms Hudson-Moon thought that the person was either lying face down or on her side because she could see her back and hair.

The person’s back was bare, and her buttocks and legs were covered. There was no movement from the person. The person was probably half a metre or one metre from the gate and her head was closer to the building on the other side than the Salvation Army premises. The building on the other side was a reference to the flood building of the Council.

Ms Hudson-Moon could see a man who looked like he had been sitting down or crouching near the woman’s feet and was trying to get up. He was grumbling and swearing. She had heard the grumbling while walking along the footpath. The man went silent as soon as Ms Hudson-Moon called out to him to ask if he was okay.

The volume was loud enough for Ms Hudson-Moon to hear it while walking on the footpath and the tone was distressed. The man was a couple of metres from the fence towards the feet of the person lying down. She saw the back of his head as he was facing away. The time of day in what was effectively the middle of summer was such that at that time it was light, and it did not usually get dark until after 8pm or 9pm.

In cross-examination, Ms Hudson-Moon could not say whether the man was on different bedding or set up in a different sleeping place a couple of metres away from the woman. She did recall that the man was “a little bit in front of the woman” and was not lying down.

Referring to her statement, the witness agreed that she had stated that the man was on a different bed or bundle of blankets. Ms Hudson-Moon did not move after he stood up.

Ms Hudson-Moon said she could see the woman under the gate and the man she could see through the slats in the fence. She did not notice any blood around the woman.

Ms Hudson-Moon said, in re-examination, that she was drawn to the area because of the man groaning while getting up and he responded to her question after that. Ms Hudson-Moon was hesitant about moving too close to the fence because of the situation.

Senior Constable Makings read a statement he had prepared. He provided reasons that the Police were delayed in answering the call at 7.03pm about the bashing of the female. At 7.55pm Senior Constable Makings drove past the Salvation Army carpark and building in Holden Lane. He looked into the carpark and saw nothing.

He was looking in the carpark because he had been told that the bashing was occurring at the rear, back, or behind the Salvation Army building. Senior Constable Makings could not see beyond the fence, which was like a pool fence, separating the carpark from the passageway in which the deceased was found.

Senior Constable Makings did not alight the car and did not look into the passageway. Nor did Senior Constable Makings notice any property in the passageway and conceded that he could not see beyond the fence. The time at which Senior Constable Makings drove down Holden Lane for this purpose was 7.55pm.

Between 5pm and 5.30pm on 3 January 2023, Ms Sue Blakey saw what I infer was the deceased chasing after a male who was about 50 metres up the road. [17] The woman had a limp. The male was walking on Holden Lane towards Moon Street. Ms Blakey saw the woman walk out of the rear of the Salvation Army carpark and she was yelling “John” which she yelled a few times. I accept that Ms Blakey may have misheard the name, and it may have been “Rob”. When the name was called out, the male put his arms up in the air and kept walking away.

The female was a bigger woman, but Ms Blakey could not see her face. Ms Blakey did notice that the woman found it hard to walk quickly and was limping.

I turn then to the evidence of the two persons who, on 3 January 2023, were working for the Salvation Army. They are Mr Leadbetter and Ms Magnay.

Ms Brigitta Magnay worked as a volunteer at the Salvation Army in Ballina. She provided a statement to police on 5 January 2023 about the events of 3 January 2023. She was working that day, and it was her first day back after the Christmas/New Year break. She worked normally from 9.30am until 4pm, but on that day she worked from 1pm until 6pm.

She noticed a couple of homeless people staying outside the Salvation Army building in the undercover area of the church. She recalled a meeting in which she and Mr Leadbetter went outside to speak to them. Ms Magnay recalled that it was about 1pm and they, being Salvation Army staff, had been told by the Council that they could not have homeless people staying there.

Mr Leadbetter, according to Ms Magnay, told them that they had to move on. It was a man and a woman about middle aged. The woman was about the same height as Ms Magnay and Ms Magnay spoke mostly to her. The man’s voice was slurred, and it smelled like they had been drinking alcohol. Ms Magnay, in oral evidence, made it clear that she had smelled beer before, and it smelled like beer. Ms Magnay recalled that the man had an accent. The couple had a lot of belongings.

After being told to move on, the man was very angry and was very abusive in his language. He said to Mr Leadbetter that he should be able to stay there and that they were not doing any harm. The man kept talking for about 15 minutes. He was talking loudly and swearing, while the woman was very quiet. The woman said to Ms Magnay that she was sorry and that they would go. The man told the woman that it was her fault. He was very angry and loud.

Ms Magnay and Mr Leadbetter remained outside for 30 minutes talking to the couple, before they went back inside the building and locked the door. The last time Ms Magnay saw the man and woman, they were still in the courtyard. She did not notice any bruising on the woman’s face.

In cross-examination, Ms Magnay stated that Mr Leadbetter had told her that he had already spoken to the couple earlier in the day. She was not aware of any other people staying in the same area outside the Salvation Army premises. There were other people staying there regularly in the past, up to some weeks ago, but she could not recall whether there was a couple who stayed in the same area on or just before 2 January 2023.

Ms Magnay recalled that both the man and woman were slurring their words on 3 January 2023. She did not remember seeing any bottles of alcohol. When asked whether it was possible that what she smelt on the couple was not alcohol, but because they had not showered, she said that the smell of alcohol was “quite distinctive”. She had the impression that it was the smell of beer. While Ms Magnay does not have experience detecting the smell of beer on people who are intoxicated, she has had experience of being in the presence of people who had been drinking. Ms Magnay does not drink.

Ms Magnay did not recall whether the man had said to Mr Leadbetter that they would like to leave their property there for the short time and they had organised storage. She did recall that Mr Leadbetter was going to help the couple move their belongings the next day. Ms Magnay agreed that it was possible that she may have perceived that the man was angry because he was talking in a loud voice. The man was taller than her, and Ms Magnay is about five foot seven, but she did not think the man was over six foot.

On 3 January 2023, it was Ms Magnay’s first day back at work, as stated. The Salvation Army closed over the Christmas break from 23 December 2022, and she did not know if it had opened on Monday, 2 January 2023.

Peter Leadbetter was, effectively, in charge of the Salvation Army, relative to others in that building. In December 2022 and January 2023, Mr Leadbetter usually attended the premises on Tuesday where he picked up bread and distributed it.

Mr Leadbetter was volunteering on 3 January 2023, and he spoke to a police officer on 4 January 2023 about events that took place the day before.

Mr Leadbetter could not recall what time he commenced working on 3 January 2023. He recalled that Ms Magnay was also volunteering on that day together with another volunteer who was helping pick up toys and bread.

The accused and deceased introduced themselves to Mr Leadbetter when they came in from Holden Lane. He had first seen them in the children’s play area (the area with the soft flooring). In the conversation, Mr Leadbetter learnt from the accused that they had been put out of their caravan and were looking for somewhere to put their belongings temporarily. They had a shopping trolley with them and Mr Leadbetter did not see what was in it.

Mr Leadbetter told them at the time that, “we didn’t really like people camping up the side of the building or at the back of the building because we’ve had people stay there in the past and – you know, without permission, and they made a lot of mess, and we ended up – ended up having to clear it up”.

Neither the accused nor the deceased said anything in reply, according to Mr Leadbetter. Mr Leadbetter noticed that the deceased had a black eye, and she did not seem “all that well”. The conversation lasted about 15 minutes and Mr Leadbetter returned inside. He did not notice where the accused and deceased went.

Mr Leadbetter saw the accused and deceased later that day. The deceased was sitting on the edge of the garden outside the gated area and Mr Leadbetter brought a chair for her. The accused was not there.

Sometime in the early afternoon, Mr Leadbetter saw the accused and deceased on the concrete area at the side of the building with a lot of clothes. The accused said that “they were going to get a van the next day because he’d arranged for a storage shed for their belongings” and Mr Leadbetter offered to do it for free with his box trailer. The accused agreed. The conversation occurred in the carpark area. Mr Leadbetter could not recall whether Ms Magnay or the other volunteer were there with him.

The accused went inside the premises to charge his phone and picked it up later. The building was locked between those occasions. Mr Leadbetter had left the premises and returned when it was still light outside. He then gave the accused his phone back. Mr Leadbetter then left the premises and did not see where the accused and deceased went.

Mr Leadbetter visited some friends in East Ballina that evening. He called into the Salvation Army premises on his way back. It was about 9.30pm. Mrs Leadbetter corroborates that they went to friends and returned home via a stop at the Salvation Army.

When they arrived at 9.30pm, Mr Leadbetter testified that it was dark, and he parked in the disabled carpark. As a consequence, the lights from his car would have shone down the passageway where the deceased and accused were staying and where their belongings were located. He turned his main lights off and left the parking lights on and alighted the car. He called out to the accused and thought he heard the deceased calling out to the accused. He also thought he heard a sound that was not a word coming from the deceased.

He testified that his hearing was all right in January 2023. Mr Leadbetter called out to the accused again and thought he saw a dark figure standing in the concrete area. The figure sounded like the accused to whom he had spoken earlier in the day and the manner of speaking was “quite aggressive and yelling and threatening”.

Mr Leadbetter was expecting the accused and deceased to be there that evening because they had all their belongings there. Mr Leadbetter then went home and when he returned to work in the morning, police were in attendance.

In cross-examination, Mr Leadbetter agreed that his memory at the time of making the statement on 4 January 2023, is as good if not better than it was at the time he was giving evidence. He maintained that the first interaction with the accused and the deceased was the morning of 3 January 2023.

Mr Leadbetter was asked about a young couple that had stayed at the side of the Salvation Army building the week before who had left a mess. The woman was Aboriginal. The male was big and quite aggressive too. Mr Leadbetter was required to clean up broken Christmas decorations, like glass baubles. The couple left some property behind and threatened Mr Leadbetter after he told them that he would leave their property out the front.

Mr Leadbetter spoke with the accused in a normal manner. Before the nighttime the accused did not get angry, and he appeared sober. The deceased appeared quite docile and mentally or cognitively a bit slower or not quite normal. She did not appear intoxicated. Mr Leadbetter could not recall whether either of them were slurring their words during the day.

Mr Leadbetter went on a bread run and spoke to the accused and deceased after returning from his bread run. The couple explained that they had put their property out because it was wet, and they were trying to dry it. This was the context for the conversation about taking the property elsewhere the next day. Mr Leadbetter did not agree that there was an understanding between them that the accused and deceased would stay the night as there is a contrary Salvation Army policy.

Mr Leadbetter was shocked at the change in the demeanour of the accused when he returned in the evening. When the accused yelled back in an aggressive or threatening manner, Mr Leadbetter formed the opinion that the accused may have been drunk. This was based on the change in demeanour. He did not perceive any aggression between the accused and the deceased at the time. He also did not perceive any need to call police or that there was any threat to anyone.

To the extent that there is inconsistency between Ms Magnay and Mr Leadbetter, I prefer Ms Magnay. First, 3 January 2023 was Ms Magnay’s first day back at work. She could not have been mistaken about the date.

Secondly, as Ms Magnay started at 1pm, she would have more readily recalled that the meeting with the deceased and accused occurred shortly thereafter. Ms Magnay did not drink and may, for that reason, have noticed the smell of beer more readily than Mr Leadbetter.

Thirdly, and more fundamentally, it was clear from the evidence of Mr Leadbetter and his demeanour that he was unreliable as to times, dates and details. Whereas Ms Magnay was much better informed on the question of details, times and dates.

It is notorious that human memory will merge the details of different meetings occurring in quick succession. Overall, to the extent that there is inconsistency between Ms Magnay and Mr Leadbetter, I prefer Ms Magnay and accept her version of the meeting just after 1pm on 3 January 2023.

As to other matters, there are a number of comments that need to be made. First, the reference by Mr Leadbetter to the cleaning of Christmas baubles in an area that has soft flooring and is generally referred to as the “children’s play area” is likely to be a reference to cleaning the Christmas baubles either immediately after Christmas or New Year’s Eve. The likelihood that Mr Leadbetter would allow glass or hard plastic to remain on the floor of a children’s play area for any length of time, given his nature, is remote. It may well be that the Christmas baubles had nothing to do with Mr Turnbull and Ms Craigie.

Secondly, as to the cleaning up of the belongings of Mr Turnbull and Ms Craigie, Mr Leadbetter may have performed that task even before Mr Turnbull and Ms Craigie moved from the side passageway. As the belongings were moved only to the front of the premises, it is possible that there was thought to be nothing untoward by either Mr Turnbull or Ms Craigie about the movement of the goods within the Salvation Army premises.

Lastly, Ms Magnay was speaking predominantly to the deceased. It may well be that the discussion with the deceased was quite separate from the discussion involving Mr Leadbetter. The testimony of Ms Magnay was, at least in part, to the effect that the accused was aggressive towards the deceased. Further, the aggression at 9:30pm from the accused may have been, if it were the case, that the accused had become aware that the deceased had died and di not want Mr Leadbetter to become aware of the situation.

The only other comment that is necessary in relation to the evidence of Ms Magnay and Mr Leadbetter is that, at 9.30pm, when Mr Leadbetter called out to the accused and down the side passageway, having shone his headlights down the passageway when he arrived, the deceased did not respond at all to Mr Leadbetter. Mr Leadbetter said that he heard what he thought was the deceased calling out to the accused, but it was not said with any conviction. Indeed, Mr Leadbetter made clear in his answer to whether he heard the deceased calling out that he “might be wrong”. It was not a word, but some kind of noise which he was incapable of emulating.

As to the difference between Ms Magnay and Mr Leadbetter about the meeting, again, it does not seem to be crucial. If it is relevant to anything, it is relevant to the accused’s mood and possibly the relationship between him and the deceased. But in truth, the relationship between them is not particularly controversial.

It seems fairly clear that the relationship was a turbulent one. It was a relationship in which there were moments of care and closeness, and other times significant violence perpetrated by the accused against the deceased. It is also clear that the mood of the accused could change dramatically and over a very short period of time. It is more than merely possible that the accused was aware by then that his partner had died and was anxious about discovery or as to what he should do.

Some evidence was adduced of a telephone call between the accused and the deceased relating to what seemed to be either an alibi or evidence of innocence relating to a different and earlier charge. The telephone call was made by the accused from prison, and therefore, recorded.

At the end of the phone call, the accused said to the deceased, if she did not organise that which he had asked her to do, he would kill her. I am unwilling to take that phone call into account in determining the relationship between the couple, nor the state of mind of the accused. It seems to be a less than serious comment and not one which I take to be, in truth, a threat to kill.

Other than the evidence already outlined, there were a number of police officers who were called to attest to what occurred at the police station at about 12.45am on 4 January 2023. While there was cross-examination about the details of the conversation, the difference between them seemed to be insignificant.

I accept that the accused came to the police station to report the death. There was an exchange as to whether the accused was reporting for bail, and it is unclear whether that comment was flippant. It was certainly made before anyone was aware of the death of the deceased.

Police officers then accompanied the accused to the scene in the side passageway of the Salvation Army building, the extent of which was recorded on bodycam and available to the Court. Evidence of what occurred at the police station was adduced from Senior Constable Andrew Stewart, Constable Daniel Pyett, Senior Constable Makings, who, as stated, had responded at 7.55pm to the report of a bashing, and Senior Constable Leigh Blundell.

Body worn video, as earlier stated, was used thereafter to record the interaction between the accused and police. The accused directed the police to the side passage of the Salvation Army building and to the body of the deceased. During the course of the conversations, Senior Constable Stewart said to the accused that the police “were called to a domestic incident here a couple of hours ago”, to which the accused replied that, “there was no domestic incident”. It was then put to him that there was screaming heard coming from the area and the accused said, “Yes, we had an argument”. The argument, according to the accused, was three hours prior, this conversation occurring approximately at 12.45am on 4 January 2023, or just after.

After the statement about the argument, Senior Constable Stewart warned the accused that he did not have to say or do anything, that it may be recorded and may later be used in evidence, which the accused understood. Thereafter, Senior Constable Stewart asked the accused about the blood on his shirt and his hands, to which the accused replied that it was his blood and that he bruised easily. Senior Constable Stewart remarked that there were no cuts on him.

The accused was asked what the argument was about, but said he could not recall. He was also asked about the blood on the deceased’s face and how that came about, to which the accused replied that he did not know. The same answer was given in relation to bruising around the cheekbones and her eyes. At that point, Senior Constable Stewart took the commendable course of bagging the accused’s hands so that they could be forensically analysed later.

The accused was asked again about the blood on his shirt and stated that he did have a couple of cuts on his hands and was asked about marks on his knuckles and replied that he had been working hard all day, which was a reference to the moving of his property and clothing.

The accused also said that he did not know what time the deceased had passed away and was asked what he did after he realised that she was deceased, and he replied that he had “walked out here and came to the police station and reported it”.

Marker M relates to blood stains on the fence, seen at crime scene photographs 119 to 122 and is approximately 17 mm in length. The deceased is the major contributor of the material but there is also a minor contributor from whom no DNA could be extracted because it was too low for comparison purposes.

As earlier stated, the deceased’s hands were also swabbed. They can be seen at photographs 37 and 11. Blood was found on both thumbs and all fingers, which is the blood of the deceased, and the accused is unable to be excluded from the DNA as a minor contributor on three fingers. The backs of the hands and palms were not tested for blood but consist of a DNA mix of the accused and deceased.

The swab from the deceased’s chest and neck was not tested for blood but the DNA was a mix of two. The deceased was the major contributor. The deceased’s dress was significantly stained with blood on both the front, back and on the arms. There are a significant number of photographs of the dress both from the crime scene and from the autopsy photographs.

The blood stains to the front of the dress are all of the deceased except that shown at crime scene photograph 246 which is a mixture of the accused and the deceased, and that shown at photograph 252 which is only the accused. The blood stains to the back of the dress are all of the deceased.

Other swabs were taken of the accused’s hands and feet, but these were not tested for blood. The DNA returned a mix profile of both the accused and the deceased.

The accused’s white t-shirt with a black fox motive was swabbed and there was found to be blood at the red stain that was approximately 100 x 90 mm. The DNA is a mix of at least two individuals, being the deceased and the accused.

The olive-green cargo shorts, which the accused was wearing on 3 January 2023, but was not wearing in the police station when he reported the death of the deceased, had blood stains on the front and the back. As to the front of the shorts, there were five blood stains, only one of which was the blood of the accused. [20]

Further, photograph 219 shows the deceased’s blood plus a minor contributor which was unsuitable for comparison. All of the other stains were only of the deceased. On the rear of the shorts there were six blood stains two of which were unsuitable for comparison and all of the others were identified as the deceased.

At Marker G on the diagram there was a yellow umbrella which had blood stains. Photograph 189, being segment A1, is the blood of the accused while the other six blood stains were all of the deceased.

The white doona that was found behind air conditioning unit 3 had the blood of the deceased on it plus an unknown individual on one side, and on the other side, there were four blood stains, one being of the accused and deceased that was mixed, two being of the accused and one being of the deceased.

While CSO Greenway was prepared to express an opinion about some of the drops as being a “passive blood drip”, she readily admitted that she was not an expert in the interpretation of blood stains but is capable of describing their shape, size and distribution.

It is possible, according to CSO Greenway, that the deceased was injured and standing or moving in the area of the carpark or vice-a-versa. However, CSO Greenway did not find any evidence of further blood staining in the carpark.

CSO Greenway was unable to give evidence of how old the blood stains were, for which there is no available test. CSO Greenway confirmed that no blood stains were found under the deceased on the concrete or anywhere else.

A Temazepam bottle with four tablets was found in the accused’s shorts.

The Crime Scene Officer could not comment on how the blood came to be deposited on the accused’s shorts, on the umbrella, or, it seems, on any item. CSO Greenway confirmed that she could not age the blood and therefore blood stains could have been deposited on different occasions on the umbrella, on the doona or on the grey thongs found at the scene. The blood on the grey thongs, which was confirmed as blood, was not the subject of DNA analysis. There was no analysis of the blue pyjama pants seen in the photographs of the scene.

CSO Greenway could not recall whether she or any of her colleagues found any alcohol, alcohol packaging or evidence of alcohol consumption in the crime scene. She agreed to the proposition that the various blood stains were different in appearance.

Plainly, given the findings of DNA in relation to the doona and other items, which disclosed the DNA of third and fourth persons, the DNA and/or blood could have been deposited at various times.

Sixthly, it is certain that the injuries were inflicted at a location in the passageway other than where the deceased was lying when she was found by police. If anything else were the case, the deceased would have bled and there would have been blood on the concrete under and/or around the deceased. There was not.

Further, given the amount of blood on the dress of the deceased, the inference must be that the blood on the back of the deceased had dried or was not in a position to smear the concrete floor by the time the deceased was in that final position, either lying on her front or back.

Lastly, neither the police nor any first responders did any act which would have caused the buckle injuries to the ribs. Given that CPR was not attempted by anyone, it must be accepted that the buckle injuries, having been caused after death, were as a result of the accused moving the deceased either from another position or by rolling her over. Other than the reference to the buckle injuries, to which I will come in the evidence of the expert pathologists, none of the foregoing depends upon or is affected by the evidence of the pathologists.

The cause of this injury may have been from focal neck compression which was severe enough to fracture part of the thyroid cartilage. Alternatively, a blow to the front of the neck may have caused this injury. Petechial haemorrhages (tiny dot-like haemorrhages) were not present on the eyelids or elsewhere about the face. Their presence can often be a marker of neck compression.

The overall pattern of injuries on the face and head was indicative of a sustained assault, with numerous (unknown number) inflicted blows causing bruises, abrasions and lacerations. There was no evidence of skull fracture.

Subsequent neuropathological examination showed minor areas of acute traumatic subarachnoid haemorrhage on the surface of the brain in three separate areas. There was no evidence of brain swelling or of herniation of any internal structures of the brain, indicating, according to Dr Cala’s first report, that death occurred before these changes could occur. There was an old left thalamic infarction measuring 10 x 2 mm.

Upper bilaterial buckle type rib fractures were noted but these appear not to have been due to CPR, which was not performed. These fractures may have been caused by a blow or blows to the upper chest. There was no significant haemorrhage in association with these fractures.

The coronary arteries were calcified but appeared patent. There was an old spontaneously closed ventricular septal defect just beneath the aortic valve, an incidental finding. There were numerous jet-black gallstones within the gallbladder.

Toxicological analysis showed no alcohol in the blood or vitreous humour. Methadone was detected in blood at a low level of 0.08 mg per litre. Oxazepam was detected in blood at a level less than 0.005 mg per litre. Temazepam was detected in the blood at 0.006 mg per litre. Salicylic acid (aspirin) was detected in the blood at less than 5 mg per litre. In Dr Cala’s opinion, drug toxicity has played no role in this woman’s death.

As Dr Cala stated in his report:

The right arm had a number of bruises: the collection of mottled purple-red bruises on the postero-medial aspect of the right upper arm 80 x 40 mm; a faint 20 mm diameter bruise 30 mm above the wrist in the medial aspect of the right forearm; a 30 x 20 mm faint purple bruise on the lateral aspect of the right upper arm 100 mm below the shoulder; a red 20 mm diameter bruise on the lateral aspect of the right forearm 30 mm above the wrist; a faint 20 x 15 mm bruise on the medial aspect of the right upper forearm; and three red 5 mm diameter bruises surrounded by mottled purple bruising 50 x 40 mm on the anterior aspect of the right mid forearm. There was an abrasion on the left knee and an abrasion just above the left knee, together with a bruise in the medial left upper shin. I do not repeat the injuries to the right leg.

As to the brain injuries, there was total area of bruising that measured approximately 110 mm in diameter. There was also a similar thick haemorrhage on the left side of the scalp from the left ear to the vertex, measuring approximately 100 x 110 mm diameter. There were no fractures of the skull which was of normal thickness. The dura was intact and there was no extradural or subdural haemorrhage.

There was focal subarachnoid haemorrhage on the surface of both cerebral hemispheres. Limited external examination showed no gross neuropathological abnormalities and no herniation. There was a fresh thick haemorrhage across the entire mid-face but more so on the right side from the right ear to the nose and from the lower right maxilla to the right orbit around the eye in an area approximately 120 x 60 mm. There was also a focal haemorrhage in the left mid-face from the left ear to the lateral left orbit in an area approximately 80 x 50 mm and there was focal bruising over the left mandible 30 mm in diameter.

There was 30 mm diameter area of haemorrhage medial to the upper lobe of the right side of the thyroid gland, overlying the base of the sternothyroid muscle, the thyroid cartilage and the cricoid cartilage. The hyoid bone was intact and normal. There was a basal fracture of the right superior cornu of the thyroid cartilage with surrounding haemorrhage and the carotid arteries showed no atheroma (fatty deposits causing thrombosis).

Dealing with the chest, the only remarkable aspects were that there were “bilateral buckle-type fractures of upper ribs”. There were older healing fractures of the left fourth, fifth and sixth ribs and there were no abnormal collections of fluid or adhesions in the pleural cavities. The trachea and major bronchi were unremarkable. There was bloody fluid mixed with brown mucoid fluid in the trachea.

The coronary arteries were patent along their lengths but there was significant calcific atherosclerotic narrowing in the left anterior descending and circumflex coronary arteries, each greater than 50%.

Sections were made of the ventricle which were unremarkable and there was no evidence on inflammation, acute ischemia or old infarction. However, the sections of the coronary vessels showed significant narrowing of at least 50% due to atherosclerotic plaque formation.

The toxicology report was outlined, and no alcohol was detected. As earlier stated, there was 0.08 mg per litre of methadone; less than 0.005 mg per litre of oxazepam; less than 5 mg per litre of salicylic acid; and 0.006 mg per litre of temazepam. No amphetamines, cannabinoids, cocaine metabolites or opiates (other than the methadone) were detected.

Benzodiazepines were detected and the LC QTOF MS Screen confirmed the presence of the drugs detected otherwise, as would be expected.

Even though Exhibit T, the supplementary report of Dr Cala was part of the Crown case, it is a response to the report of Professor Duflou and it is more logical to deal with the report of Professor Duflou [24] before dealing with the supplementary report of Dr Cala and the oral evidence of each.

Professor Duflou agrees with Dr Cala that “the overall pattern is that of a sustained assault with numerous inflicted blows causing bruises, abrasions and lacerations, but no skull fracturing”.

Professor Duflou also notes the presence of aspirin (salicylic acid), presumes that it is for the purpose of stroke prevention, and expresses the opinion that, as a consequence, the severity of force applied to the deceased’s head was likely not more than moderate in amount, “using a semi-arbitrary scale of trivial-mild-moderate-severe-extreme”.

The assessment he makes of the force applied to the deceased’s head is, in Professor Duflou’s opinion, supported by the absence of significant bleeding over the surface of the brain. Professor Duflou, after repeating that there was no identifiable brain injury, expresses the opinion that a force that was sufficiently significant to be considered sufficient to cause death from blunt force head injury would ordinarily give rise to fracturing facial bones and potentially of the base and vault of the skull, together with considerable bleeding over the surface of the brain in the form of potentially extradural and subdural haematomas and much more extensive subarachnoid blood. If the assault alone caused death, then Professor Duflou would have “expected to see secondary effects of head injury, such as brain swelling and potentially various forms of herniation (or shifting) of brain tissue”.

At [22] of Exhibit 1, Professor Duflou summarises the opinion of Dr Cala that despite the absence of traumatic injury to the brain and secondary effects from trauma, Dr Cala considers that the cause of death is craniofacial trauma, and that the absence of brain abnormalities is because death occurred before any traumatic changes could have become apparent.

After expressing some doubt as to what the abnormalities that would have developed would be, Professor Duflou expresses the view that “a much more likely alternative explanation for a lack of large bleeds over the surface of the brain or various forms of haemorrhage within the brain is that there was no injury to the brain which would reasonably be expected to develop such abnormalities after a delay”. [25]

Professor Duflou accepts that axonal injuries have been shown to take 30 or more minutes to develop and therefore a survival time of a minimum of 30 minutes would be required to see these abnormalities in the brain. The opinion is sourced.

Professor Duflou also suggests that localised areas of axonal injury to the brain would not be expected to cause sudden death from brain damage. Although, he accepts that there are rare reports of sudden death in persons in that circumstance and without there being observable traumatic brain injury, but such deaths appear to be “strongly associated with significant alcohol intoxication”. There was no alcohol detected in the deceased.

He describes the sudden death associated with such studies as sometimes termed “commotio medullaris” but can also be termed “post-concussive apnoea”. Professor Duflou concedes there is very little research evidence for this condition and on autopsy there are usually no identified abnormalities in the brain no matter how detailed the examination may have been.

The theory for commotio medullaris is that the trauma to the base of the brain is a trauma that affects that part of the brain that regulates the heart and/or breathing and even though the brain injury would be unremarkable, the trauma causes the patient to stop breathing or the heart to stop. The theory, as I understand or infer, has not been proved. [26]

Professor Duflou dismisses post-concussive apnoea because there is no evidence of severe alcohol intoxication. However, given that the mechanism by which the trauma causes death is not proved, such a dismissal may or may not be appropriate, particularly if there were drug issues instead.

Professor Duflou notes the absence of fractures to the face and skull and therefore infers that there is unlikely to have been significant bleeding into the air passages, which were not described as obstructed by blood or other material on CT scanning. Further, the lungs and stomach were not described as containing blood. Professor Duflou concluded “that airway obstruction by blood or other fluids is unlikely as a mechanism of death following blunt force injuries to the head and face”. [27]

Professor Duflou concludes that “although blunt force head injury/craniofacial trauma may have caused death in this case, this would be a most unlikely outcome given the pathological processes identified, and in my opinion should not be given as an unequivocal cause of death”. [28]

The opinion of Professor Duflou then deals with the neck injuries and other injuries, which I do not extract or summarise.

Professor Duflou then deals with natural disease. He recites that the deceased had a number of medical conditions, including at least two prior strokes. One of the witnesses suggested that there were two strokes. The evidence seems to suggest that there had only been one prior stroke, but, in my view, nothing turns on that issue and the physical evidence on autopsy disclosed only one.

Professor Duflou also noted the deceased’s moderately advanced coronary artery disease and that only one stroke was identified on neuropathological examination. He disagrees with Dr Cala’s opinion that the coronary artery disease is “mild”.

Professor Duflou then expresses the opinion that “[n]either the strokes nor the coronary artery disease as described are expected to have caused death in this case, but it is possible that the deceased’s prior strokes may have contributed to unsteadiness on her feet, and noting her persistent cognitive and communication deficits after the strokes, it is possible these may also have contributed to events leading up to her death”. [29]

Professor Duflou then deals with the toxicology and noted the presence of methadone, the benzodiazepines (oxazepam and temazepam) and salicylic acid (aspirin). Professor Duflou expresses the view that the oxazepam and temazepam are most likely metabolites of diazepam (brand name Valium) and that the level of these substances is low. They would not be expected to have resulted in death due to overdose either individually or if taken together.

Professor Duflou notes that both methadone and benzodiazepines are able to be obtained legally only by prescription but are often or sometimes obtained illicitly. This is a well-known factor for anyone who deals in the criminal law.

Prescribed methadone, while it can be used as a painkiller, is often used as a substitute for heroin. Because methadone has a longer half-life and attaches to the same receptors in the body as heroin, it satisfies the craving for heroin without, in prescribed quantities, causing a “high”. However, in higher quantities than ordinarily prescribed it can also be used to give the effect of any other opiate.

Dealing with the effect of the aspirin or antiplatelet agents, usually used for stroke prevention and the prevention of coronary thrombosis, Professor Duflou expresses the opinion that they increase the amount of bleeding from any given sight and delay effective blood clot formation, which the body uses to halt bleeding. Many forms of intracranial haemorrhage, according to Professor Duflou, can be expected to be larger and “develop faster” [sic] in a person treated with aspirin than if they were not so treated.

Ultimately, under the heading “cause of death”, Professor Duflou states that the “cause of death in this case is not straightforward”. He notes the multiple blunt force injuries and that there is no pathological evidence of brain damage of any type which can reasonably be expected to result in death and only limited evidence of possible compressive force being applied to the neck and no direct indications of death being due to a drug intoxication or a natural disease. Professor Duflou would express the view that the “cause of death” is “unascertained”.

The Supreme Court, in civil proceedings, now utilises concurrent evidence for experts as standard practice. The practice generally discloses far less difference between the experts than might otherwise appear from an initial reading of their respective reports.

The practice has not been utilised in criminal trials. There are obvious reasons why that is the case. First, there is the burden of proof issue and the necessity for the Crown to complete its case before the defence makes any decision as to whether a case will be presented. That is so even in circumstances where, in accordance with the rules, the defence is required to serve expert reports prior to the trial where such expert reports are to be utilised.

The second reason is that evidence in conclave generally requires the judicial officer to be more involved in the questioning, which may or may not be an appropriate course when there is a jury trial. Notwithstanding or as a result of the excellent cross-examination by both the Crown and Mr Watts, the level of disagreement between the two experts is not great. There are differences but they are, largely, on issues of detail. It is unfortunate that the experts were not in a position to be able to provide the Court with a joint report and give evidence in conclave.

Dr Cala expresses the opinion that the exact mechanism of death is unclear and there may have been an element of natural disease associated with the assault. However, the amount of coronary artery narrowing, on Dr Cala’s view (and on Professor Duflou’s view), was not severe.

Further, Dr Cala agrees that the effects of the neck injury do not appear severe but discusses the possibility that the craniofacial trauma, in a person with acutely fractured larynx and coronary artery narrowing resulted in a cardiac arrest and her subsequent death.

Dr Cala does not agree that the cause of death is “unascertained”, which he says is generally reserved when the cause of death is utterly unknown and expresses the opinion that, “but for the assault, this woman would not have died however the mechanism of death is unclear”.

Lastly, Dr Cala expresses the view that there may have been a contribution from natural disease, but he cannot be sure of that circumstance. Nor can he speculate as to the effects from smothering/suffocation and/or positional asphyxia, and there is no evidence that any of it occurred.

There was discussion by Dr Cala of the possibility of restraint injury and some of the bruising that was, in Dr Cala’s opinion, indicative of restraint around the left and right wrist regions, together with the possibility of the bruising of the upper right arm.

He agreed with Professor Duflou that the buckle injuries to the ribs are consistent with CPR, but was of the understanding that CPR did not occur. On the findings of the Court, that understanding is correct.

The Crown put some scenarios to the witness as to the mechanism of death, including: the craniofacial trauma stopping the brain working before swelling took place; positional asphyxiation; and the combination of craniofacial trauma, an acutely fractured larynx and coronary artery narrowing. Dr Cala remained of the opinion that the craniofacial trauma could have stopped the brain working before swelling.

The survival period for axonal injury to be determined physically on post-mortem needs to be, according to Dr Cala, “several hours”. Dr Cala accepted that positional asphyxiation may have contributed to the deceased’s death as there was some blood and mucoid fluid in the airways that could have compromised her ability to breath normally. While he does not exclude positional asphyxia, Dr Cala cannot prove it based on autopsy findings.

Dr Cala expressed the opinion that craniofacial trauma in a person with acutely fractured larynx and coronary artery narrowing could have resulted in cardiac arrest and death. In any of the scenarios, Dr Cala is of the view that craniofacial trauma to the face and neck is a substantial contribution to death.

Dr Cala could not say with certainty when the force may have been applied; it may have occurred over a short period of time but quite violently or during the two-hour cycle with repeated assaults. The fact that the deceased was found at 12.45am and cold to the touch did not alter that opinion.

Dr Cala estimated that during summer and in a location with “pretty high” ambient temperatures, it may take three or four hours for the body to cool.

Lastly, Dr Cala said that there was no evidence of any newer infarction in the brain which may have been from a stroke. The thalamic infarction found at autopsy was years old. There were also no fatty deposits in the carotid artery or anywhere else.

In cross-examination, Dr Cala was taken to the photographs of the deceased in Exhibit B and asked to compare the injuries depicted in those photographs with the injuries seen on examination at autopsy. Dr Cala expressed the opinion that the injuries were significantly worse at autopsy.

Further, Dr Cala did not consider the injuries from 26 December 2022 to have any relevance to the cause of death on 3 January 2023. He strongly disagreed with the proposition that all of the bruising in the photographs on autopsy may be attributable to the earlier injury. He did however agree that some of the injuries could be related. Dr Cala was not provided with information relating to the earlier injuries at the time of doing the post-mortem examination.

During cross-examination, Dr Cala also expressed the view that the internal examination of the face showed extensive bruising across the entire face and caused him to conclude that the overall pattern of injuries to the face and head was indicative of a sustained assault. Notwithstanding that opinion, Dr Cala agreed that the earlier injuries or their presence were relevant to know in his assessment of what sort of assault the deceased may have been subjected to on 3 January 2023.

Dr Cala’s description in his first report of the injuries seen at autopsy included the earlier injuries. However, a number of the injuries are plainly more recent. Dr Cala agreed that if there were a blow to the head on an earlier occasion, his description of the blow incurred and evident at autopsy would include the earlier incurred blow and it would not be relevant to the cause of death.

Dr Cala continued to express the opinion that a fall or falls could not explain the constellation of injuries observed (which is consistent with the comments of Professor Duflou). However, some of the injuries may be explained by a fall or falls, particularly the fresh abrasion on or above the left knee.

Asked about medical reports relating to the significant cognitive deficit and mobility issues suffered by the deceased prior to her death, Dr Cala indicated that the effect of the old stroke led him not to expect significant mobility issues or cognitive deficits, but this was an example of the limitations of that which can be revealed by post-mortem examination.

Dr Cala did not see any evidence of injuries that would cause a limp or mobility issue, but it is not an area that is regularly examined at post-mortem. There was nothing obvious in the lower limbs that made him think that the deceased might walk with a limp and there was no internal examination of the lower limbs.

Asked about a report from Lismore Base Hospital describing the deceased as having suffered an “acute” left thalamic infarction, Dr Cala explained that “acute” in that context means happening now, in the last 24 to 48 hours. In that sense, “subacute” is somewhat older. Asked about medication recorded in discharge documents from Ballina District Hospital, Dr Cala suggested that this was standard for someone who had suffered a stroke, as is the presence of salicylic acid in the toxicology report.

Dr Cala agreed that a person taking aspirin is likely to bleed more than the same person if not taking aspirin, but it would be very unusual for that internal bleeding to cause bruising within the body other than in the gastrointestinal tract. If such a person, being a person taking aspirin, was the subject of a blunt force trauma it could cause greater bleeding, but that varies with the individual and it is likely to be slight or moderately more. He agreed that it is standard advice before surgery that a person should cease to take aspirin approximately ten days before the surgery.

Dr Cala agreed that the lack of significant haemorrhage in association with buckle fractures to the ribs is consistent with the fractures having occurred after death because there was no appreciable bleeding in association with them.

Dr Cala agreed that he did not address in his supplementary report the lack of evidence of axonal injury. He agreed there was no evidence on autopsy or on brain examination of axonal injury.

When further questioned about the axonal injury or defuse traumatic axonal injury and the time it would take before becoming apparent on physical examination, Dr Cala said he was referring to traumatic axonal injury and expressed that if somebody were to die from a traumatic axonal injury immediately, and a brain examination were done, there may be no evidence of the axonal injury obvious to the pathologist. “Survival of around one to two hours is generally necessary for pathological changes to become apparent”, he said.

Dr Cala explained that axonal injury occurs when there is movement of the brain within the skull, usually a rotational turning to one side or the other of a rapid and very forceful type. Dr Cala referred to [23] of his subsequent report which referred to the location of the subarachnoid haemorrhages indicating backward-forward movements of the brain.

Nevertheless, Dr Cala agreed that the blunt force trauma occasioned three minor subarachnoid haemorrhages and there was no further brain injury observed because no further brain injury was occasioned. He did not agree that the deceased survived for several hours after the injury but accepted that the deceased remaining alive and moving around the laneway for a couple of hours was consistent with neuropathology report and the post-mortem results.

Dr Cala did not disagree with Professor Duflou’s explanation for the absence of swelling that the injury to the brain may have been sufficiently minor for such swelling never to have occurred from the injury that was inflicted. Dr Cala disagreed that the deceased suffered no defuse axonal injury as a result of the assault because the force of the assault was not sufficient to cause axonal injury.

Dr Cala agreed that the minimum survival time of 30 minutes or more was needed for axonal injury to manifest and also agreed that the period of 30 minutes is generally accepted by the pathology community.

Concerning commotio medullaris (or post-concussion apnoea), Dr Cala described it as a mechanism of death which is a brain injury characterised by a sudden, fatal cardiorespiratory arrest following a mild to moderate blunt force head injury, particularly in the presence of heavy alcohol intoxication. Dr Cala accepted that it is a possibility in this case, but he could not prove or disprove it.

He did not agree with Professor Duflou that it was impossible for death to have occurred in this way because of the absence of alcohol. While alcohol intoxication was common in cases of accepted commotio medullaris, Dr Cala was not prepared to exclude it absolutely just because the deceased was not alcohol intoxicated.

The bruising, according to Dr Cala, and other trauma around the back of the head was inconsistent with a fall because Dr Cala described the injuries as being “closer to the bottom of the skull, and that’s an unusual location for a fall because of the prominence of the back of the head which usually takes the brunt of the injury”.

Questions were asked relating to positional asphyxia. Dr Cala reiterated that he had not said in the supplementary report that there was an obstruction of the airway.

He noted that there was material in the airway and that it was soiled. He did not agree with Professor Duflou’s view that airway obstruction by blood or other fluids is unlikely as a mechanism of death.

Dr Cala did not include a soiled airway as a possible contributor in the post-mortem report because he could not say exactly where the material in the airway came from, and the material did not obstruct the trachea. The material, in his view, came down from the back of the throat and from the face generally, from the injuries that bled into open spaces such as the airway, and into the trachea.

As for methadone, Dr Cala described the methadone level found in the deceased’s blood as low. He agreed that methadone could have unpredictable effects on individuals, one factor being whether the individual has developed a tolerance to opioid drugs over time and methadone can have adverse effects such as sedation, stupor or respiratory depression.

Dr Cala was cross-examined as to a book entitled “Toxic Drugs and Chemicals in Man” by Randal C Baselt, with which work Dr Cala was familiar. One of the tables in the report identified a range of methadone fatalities where the blood level of methadone on post-mortem ranged from 0.06mg/kg through to 3.1mg/kg. Dr Cala agreed that the range encompasses the reading in this case.

Dr Cala was referred to records from Lismore Base Hospital which showed the deceased overdosed on an illicit drug in 2019 and was treated with naloxone. Dr Cala said that he is not in a position to determine whether the methadone had a significant effect on the deceased, but he is of the view that it is unlikely to have directly caused the death, although not impossible. It is theoretically possible that the combination of methadone, oxazepam and temazepam could have had sedating effect and effected balance and the likelihood of falls. The combination could also have made the deceased more prone to respiratory depression and/or cardiac arrest.

Dr Cala reiterated his opinion that the cause of death was craniofacial trauma which produced a number of effects on the deceased. When asked to elaborate on those effects, Dr Cala referred to the lack of good health, internal bleedings from injuries to her head and face, external injuries with blood loss, the soiled airway, the possibility of commotio medullaris, and a small to moderate amount of coronary artery disease which may have provoked a cardiac rhythm disturbance.

Dr Cala agreed that he had not mentioned blood loss in either his first or supplementary reports. He could not estimate how much blood would have been lost and he did not think that the deceased “bled out”.

Dr Cala refused to agree that it was possible that the deceased died of other causes without craniofacial injuries contributing substantially or significantly to the death. Rather, he stated that “but for the injuries to her head and face, I don’t think this woman would have died at the time she did”. [31]

In oral evidence, Professor Duflou agreed that there was more extensive bruising and possibly abrasion on the left side of the fact than there is in the photographs of the deceased of 27 December 2022. He did not think that the bruising and abrasion could be explained on the basis of the progression of the injury but that there are additional injuries superimposed on the prior injury of 27 December 2022. Professor Duflou was not asked about the injuries to the righthand side of the face in this respect, which are plainly additional to that which is evidenced in the photographs of 27 December 2022.

The age of an injury cannot be gleaned from the colour of the bruise. There is, in this case, no yellow discolouration which can suggest a bruise of at least 18 hours old and, also, colour changes in bruises is assumed to stop at the time of death.

As earlier stated, Professor Duflou agreed with Dr Cala that the injury to the neck is more consistent with a blow than to strangulation. The blow could have been inflicted by an object like an umbrella or with the side of the forearm along the ulnar up to the little finger. He could not favour one explanation over the other.

Professor Duflou also agreed that the bruising to the right upper arm and to the forearms could be from restraint or, in the case of one of them, possibly two, putting an arm up to prevent being struck. Professor Duflou volunteered that the bruising on the right upper arm could be a bruise that occurred as a consequence of moving the deceased after death, although there is no scientific research on which to base such an opinion.

Professor Duflou opined that the buckle fractures are consistent with performance of CPR at or about the time of death. There is an assumption that bruising stops at the moment of death, but he has seen bruising develop and extend during the conduct of an autopsy. Professor Duflou did not express an opinion to the converse. In other words, no opinion was expressed that if there were no bruising, the injuries could have been inflicted prior to death.

Aspirin may or may not have an effect on the capacity and extent of bruising that occurred at or about the time of death. Professor Duflou did not know.

Professor Duflou attested that it is “very difficult to make that [body temperature] determination simply by touching the body or by feeling the surface of the skin”. Nevertheless, there is usually a plateau in temperature for the first two hours or so after which there is loss of about half a degree to a degree per hour. A person could still feel cold to the touch but there would not be an appreciable decrease in core body temperature until after a few hours.

In relation to the brain injuries, Professor Duflou maintains his opinion with which Dr Cala agreed, that the lack of swelling, herniation and axonal injury were consistent with the trauma inflicted not having caused any such injury. He repeated that commotio medullaris is extremely uncommon and, in his opinion, unlikely given the zero-blood alcohol level and that one of the witnesses heard the deceased moan after 9pm sometime. A reasonable explanation of no axonal injury at port-mortem is that there simply was no axonal injury.

Professor Duflou was asked about the inconsistency of passive drip stains of blood to the possibility of commotio medullaris. The response was that, in certain circumstances, it could be inconsistent. The problem is that the only definite injury causing the shedding of blood externally was the laceration to the eyebrow and the injury that caused injury to the base of the brain and hence possibly commotio medullaris could have occurred after the laceration to the eyebrow. While commotio medullaris is, in the opinion of Professor Duflou, unlikely as a cause of death in this case, it is a possibility.

Questions were asked about the “blockage” to the airway. Professor Duflou suggested that an airway that was soiled but not obstructed is not unusual.

Further, the Professor could see no indication in the reports of internal bleeding such as from the sinuses. “Looking at the internal photographs, [32] the airways appear quite patent and if there had been inhalation of foreign material into the airway, you would expect to see it in the post-mortem”.

As to the injury to the larynx, the Professor accepted that there could be circumstances where an injury to the larynx could affect breathing, but none of those circumstances were present in the deceased. There might have been pain and a diminution in the ease of breathing, but not an inhibition to the breathing itself that would contribute to death.

Further, Professor Duflou dismissed blood loss from the craniofacial trauma as a cause of death. He did note that it can be very difficult to assess at a post-mortem how much blood has been lost.

Professor Duflou continued to stress that the only shedding of blood occurred from the right eyebrow. However, he did concede that there could have been bleeding from the nose. In any event, the amount of blood loss is limited. There were no collections of blood in the chest cavity and no collections of blood from bruising. The subarachnoid haemorrhage is negligible in terms of the amount of blood involved.

There are other signs that would be evident if death occurred from blood loss. They include insufficient blood within the blood vessels, pallor of the organs and discolouration of the body.

Professor Duflou was asked for his opinion on Dr Cala’s evidence that the head injuries acted with the deceased’s pre-existing coronary artery disease to provoke death. Professor Duflou responded that considering the information in Dr Cala’s report, the coronary disease is “at least moderate”, rather than minor. Indeed, Professor Duflou continued and referred to it as “significant heart disease”.

Professor Duflou could not exclude the possibility of a cardiac arrhythmia given the coronary artery disease and the taking of methadone which is known to be arrhythmogenic. Methadone has the effect of causing arrhythmia in some persons, but it is not inevitable and is relatively uncommon. It can cause death.

In referring to methadone, Professor Duflou was taken, as was Dr Cala, to the textbook and expressed the view that methadone is particularly dangerous at the beginning of the methadone maintenance program.

Professor Duflou was referred to the records from Lismore Base Hospital relating to the treatment of the deceased for a drug overdose in 2019. [33] The deceased was treated with naloxone in the ambulance and in the hospital, and Professor Duflou explained naloxone is used to treat opioid overdose and, given her response, notwithstanding that she suggested she had taken “crack” (methamphetamine or cocaine), it is likely that she had taken an opioid because she would not have responded as she did to naloxone if she overdosed on either methamphetamine or cocaine.

Professor Duflou suggested that, if there is no history of tolerance or habitual use of opioids, a relatively low level of any opioid including methadone can cause respiratory depression. Once you start developing respiratory depression, it can be progressive or it can resolve by itself, depending on the circumstances of the individual case. It could certainly occur in this case, according to Professor Duflou.

There is also the presence of benzodiazepines which, while individually were not at a high level at all, could make the respiratory depression effect of the methadone greater. The added problem with methadone is that it can have cardiac effects quite separate from the respiratory effects. Such cardiac effects are more common in people who are not habituated to methadone but who are early in the program or in taking methadone.

Professor Duflou did not think that the pre-existing disease suffered by the deceased had any possible involvement with methadone toxicity as a cause of death. However, later in his evidence, that seemed to alter a little. I will come to those comments shortly.

As to the question of the possibility of a fall, Professor Duflou expressed the view that the injuries to the back of the head were equally consistent with a fall as with an assault and described the concept of “the hat brim line”, above which injuries are likely to be due to assault and below which injuries are likely due to falls. However, this expression is a statement of statistics, not medicine. It is similar to saying, on seeing a person who has died, that most deaths occur from a heart attack therefore it is probable the person had a heart attack. The foregoing is obviously hypothetical and not necessarily accurate.

The point that Professor Duflou was making is that most assaults to the head are occasioned by a downward motion to the top of the head. It says nothing about how the assault, or an assault, occurred in any particular case. Thus, if a person is assaulted to the head with a baseball bat, by swinging the baseball bat horizontally to the back of another’s head, the position of the injury could be anywhere on the back of the head. Nevertheless, the physical evidence of the injuries to the back and side of the head could, on Professor Duflou’s view, be the result of a fall.

As to Dr Cala’s opinion, but for the injuries to the face and head, the deceased would not have died when she did, Professor Duflou expressed the view that it was a possibility that the craniofacial injuries contributed to death and a possibility they did not. The deceased, he said, could have died with no role played by the craniofacial injuries.

In cross-examination, Professor Duflou was asked about positional asphyxia and dismissed it as a real possibility “because most people can breathe while face down on a mattress”. Of course, in this scenario, there was no mattress.

Rather, it is a real possibility that the deceased was lying on plastic through which the Professor conceded people could not breathe. Nevertheless, even in relation to a mattress, a person could be further compromised by being face down because of difficulty with breathing and the added effect of methadone.

As to the 2019 overdose, Professor Duflou was unaware of any blood tests to determine the nature of the drugs ingested in 2019. The Professor could not say whether the deceased had a tolerance or not to opioids in 2019 or afterwards. Such a tolerance depends more on how frequently the drug is taken rather than how much of the drug is taken. The deceased could have used any opioid, including methadone, and responded as she did to the naloxone.

Professor Duflou stated that methadone was a possible cause of death. This would be so especially if there was no history of habitual use. Cross-examined about the study in the textbook, Professor Duflou did not know how the 59 people in the study were distributed between 0.06 and 3.09 (the extremes in the study). He does know the mean and the median, which, on his analysis, would mean that there were more people under 0.28 than above it who died from methadone overdose.

As to the coronary artery disease, Professor Duflou reiterated that the deceased’s condition was at least moderate and certainly not mild. He accepts that, on its own, it did not cause death.

However, he made clear that any physical or mental stress, possibly including the application of numerous blows to the head, would increase the chance of sudden death due to the heart disease. This is particularly so if someone has occlusions that are 50% or greater in their arteries, as well as low normal left ventricular systolic function, abnormal heart septal wall function and mild diastolic dysfunction. It would also be exacerbated by the ingestion of methadone.

Professor Duflou agreed that the pattern of a sustained assault with numerous inflicted blows causing bruises, abrasions and lacerations but not skull fracturing is evident from the post-mortem. He also agreed that it is a possibility that those injuries, combined with the pre-existing heart disease, could create an arrhythmia and kill the deceased and that possibility could be a substantial contributing cause to her death. [34] Questions were asked of the blockages or partial blockage in the airways and the effect of the neck injury and its cause. Ultimately, Professor Duflou agreed that whatever be the mechanism of death the craniofacial trauma may have been a substantial contribution to the cause of death. [35]

It is also possible, according to Professor Duflou, that the craniofacial injuries may not have contributed to the cause of death. Professor Duflou did not describe the bruising and swelling and lacerations to the right eyebrow as severe head injuries because they did not represent a risk of life. Further, they did not cause any damage to the brain of any significance. Further again, there are no fractures of facial bones, which would be an indicator of force.

Lastly, in relation to Exhibit Z, Professor Duflou expressed the opinion that there is ample evidence that people prescribed methadone can and do die from the methadone alone.

It is necessary to deal with the study to which each of the experts were referred cited in the textbook. [36] The textbook refers to a study and cites it without independently confirming its accuracy. The study is Exhibit Z. [37]

The study is of drug addicts who had died in Copenhagen city and were analysed for methadone in 1981 and 1989. In 1981, 94 cases were analysed of which 16% were found positive for methadone, and in 1989, 70 cases were analysed of which 37% were positive for methadone.

Methadone alone was found to be the cause of death in 50% more cases in 1989 than in 1981.

A drug addict is defined, for the purposes of the study, as a person who abuses opioid and/or analeptics and/or hallucinogens. Persons who have been prescribed the drugs primarily for the treatment of illnesses and have then become drug abusers were not included in the study.

Only half of the drug addicts found positive for methadone had been under a methadone treatment program. The most frequently occurring other substances were morphine and benzodiazepine. Alcohol was found in 30% of cases.

Of the methadone positive drug addicts, in 1981, there were fifteen of which six are said to have died from methadone alone. In 1989 there were twenty-six of which fifteen were said to have died from methadone alone. There were three and six in 1981 and 1989 respectively who died from a combination of methadone and other drugs or narcotics.

The figures on which counsel relied (and on which the experts commented) in dealing with methadone concentrations derive from Table No 2 in the study. It is described in the following way:

Further, given her previous use of opioids, the conclusion of the Court is that the deceased, on the evidence, is far more likely to be an experienced opioid user. The deceased was mixing in a drug environment, including with the accused.

The inference of drug environment is significant: the accused acting in such a way as to warrant arrest and initial refusal of bail for drug dealing; [38] the number of phone numbers that included the deceased’s involvement; and the conversations on 3 January between the accused and Mr Daley. In those circumstances, the inference that the accused was involved in drugs on an ongoing basis between 2019 and 2023 is drawn. Thus, an inference that the deceased was not a naive user of opioids or methadone is available and drawn and, in that circumstance, it is most unlikely, and not reasonably possible, for the methadone to be the sole cause of death.

A deceased may have died from brain injuries sustained. Such is the medical mechanism of death. The brain injury may be inflicted either by a series of assaults to the head or a fall down some stairs, each of which, if it were found, would be the physical mechanism of death.

Neither the physical mechanism nor the medical mechanism of death is an essential finding on a homicide charge. It is a helpful finding, but not essential.

Thus, if a person disappears and the body is never found, the perpetrator may still be found guilty of murder, notwithstanding that the physical mechanism of death or the medical mechanism of death is unknown. Such a case may be difficult to prove, but it is theoretically possible and has occurred.

The issue was discussed by the Court of Criminal Appeal in R v PL. [39] Spigelman CJ said:

It matters little. Motive may render more rational the conduct of people but does not prove guilt. Lack of motive, if proved, may cast serious doubt on guilt.

No one other than the accused had a motive to bash the deceased. It cannot be seriously suggested that the bashing of the deceased did not occur at the hand of the accused. There may have been other motives. There were statements by the accused that their relationship had finished, and the deceased should be collected, but I am not convinced that those statements, even though reiterated on 22 December 2022, were made at a time that was relevant to this incident or made to be taken seriously. It may be that the deceased proposed move to Melbourne is consistent with a split.

The totality of the events that occurred in the side passageway of the Salvation Army on the night of 3 January 2023 are known only by the accused. However, it is not appropriate to draw inferences from the failure of the accused to give evidence. [41]

It is for the prosecution to prove its case beyond reasonable doubt. Nevertheless, the inference that it was the accused who assaulted the deceased is irrefragable and there is no rational or reasonable inference available to the contrary.

The events prior to 3 January 2023 are not particularly important in the determination of the matters before the Court. Nevertheless, the deceased was seen throughout 3 January 2023 without any additional injuries. This includes the descriptions by Ms Magnay and Mr Leadbetter. While the deceased walked with a limp, the CCTV footage of the deceased does not show her to be particularly unstable.

As stated, a bashing occurred at approximately 7.03pm. I also accept that at 7.20pm Ms Hudson-Moon saw the deceased lying on the ground motionless.

Some attention was paid during the course of submissions as to whether the deceased’s back was truly bare or whether the pot plants at the slatted gate may have given that impression. It is fair to say that one would not ordinarily describe the deceased’s skin as dark or brown. However, the colour of her bare back was not the subject of evidence.

It may well be that the back was not bare, and that Ms Hudson-Moon’s vision of the deceased’s back was obstructed by the pot plants or other items. Nevertheless, I accept that the deceased was not lying on her back because all that could be seen under the gate of the deceased’s head was her hair. As a consequence, she must have either been lying on her side facing towards Holden Lane or lying on her stomach. Ms Hudson-Moon suggests that she may have been lying on a tarp, which may describe the plastic bag that was under the deceased when the police arrived. There was no movement or sound from the deceased at 7.20pm.

Unfortunately, the attendance of the police at 7.55pm is unhelpful, because of the misunderstanding as to the location of the “bashing”. The police were unable to see past the fence dividing the children’s play area from the carpark and did not investigate that area.

The only other mention of the deceased was that Mr Leadbetter thought he may have heard the deceased call out, but Mr Leadbetter concedes he may have been wrong.

While I do not consider that the precise time of death is particularly important in these proceedings, I do not consider the description of Mr Leadbetter of hearing what he thought might have been the deceased at 9.30pm reliable. It is likely that the deceased died at or about 7.20pm. She may well have been deceased when Ms Hudson-Moon saw her. But it may be that she died just after 9:30pm.

The circumstance that there are passive blood drips at various points in the crime scene does not affect the finding that the assault was the cause of death. A sustained assault of that kind will invariably occur over an extended area; a victim is unlikely to stand still.

Further, the description of the reaction of the accused to the question asked by Ms Hudson-Moon is consistent with a theory that, after being assaulted, or during the assault, the deceased collapsed onto her knee and died and the accused moved her to where she was eventually located and, not realising that she was dead or about to die, thought to administer first aid.

He was positioned, according to Ms Hudson-Moon, near her feet and crouched. This was where the unopened medical kit was located.

Whether the accused moved her to the eventual location or merely rolled her over, when he did move her or rolled her over, she was already deceased, and the movement caused the buckle injuries to the ribs. It is noteworthy that it seems one of the prior assaults had injured her ribs on an earlier occasion and those ribs had commenced to heal. The deceased must have ceased bleeding by the time she was located where the police found her, otherwise there would have been blood where she was lying.

What then happened is a matter that only the accused can say. He may have thought about how he would deal with the issue; he may have slept. The accused had returned from the pub and, inferentially, had either been drinking or consuming drugs. In either case, it would explain a requirement to sleep.

There are other explanations for the medical mechanism of death, but once one assesses the possibility of death by methadone alone as fanciful for a person who, on the inferences I draw, has and had used opioids and methadone over some years, the most likely medical mechanism of death is that suggested by Professor Duflou and Dr Cala. Professor Duflou suggested that, given her serious heart condition (over 50% occluded arteries), the stress of being bashed and/or the numerous blows to the head and neck is “the kind of thing that could substantially contribute to a cardiac arrythmia which combined with the coronary artery disease led to death”. [42]

The contribution of methadone to that process, on the expert evidence of Professor Duflou [43] and Dr Cala, depends very much on the circumstance that the deceased may have been a naive user of methadone. I do not accept that as a reasonable hypothesis.

However, it may be that the arrhythmogenic attributes of methadone were also a contributing factor, even for a regular user. Ultimately, the question the Court is required to determine in relation to the cause of death is whether there is a reasonable hypothesis that the severe assault inflicted by the accused had nothing to do with the death of the deceased and its timing. Once one excludes the deceased as a naïve user and therefore a methadone overdose as not a reasonable possibility, the expert evidence points irresistibly to the assault being an operating and substantial medical mechanism of death. Frankly, not to draw the inference that the assault was an operating and substantial cause of death would contradict common sense and human experience.

The above conclusions result in the Court being satisfied of elements (a), (b) and (c) of the elements of both murder and manslaughter. Without in any way being flippant, the deceased is dead, the assault by the accused was a deliberate act of the accused, and the assault and injuries inflicted by him were an operating and substantial cause of death. It is necessary to deal with intention.

As earlier stated, the accused needs to possess the requisite intention at the time that the assault occurred. The fact, assuming for present purposes it is the fact, that the accused regrets the death of the deceased does not impact upon the possession of that intention.

In a wholly different context, dealing with the interpretation of a statute and the use in that statute of the word “intention” Gageler J (as the learned Chief Justice then was) said: