32 Dr Burke opined that the cause of death had been complications of head injury.
33 The witness thought that the injuries which he had observed, with a few exceptions of no present relevance, appeared to have been sustained within the same time period. That evidence was of some significance in the context of the truthfulness or otherwise of the applicant's evidence that he knew nothing of those injuries until he learned of them from the post mortem report.
34 In further evidence the witness said that he counted 11 - though it could be more or less - separate blows to the head and face area.
35 I should refer to just a few aspects of his cross-examination. The witness said that he had never previously seen injuries of the "punched out" kind which he had described. Nor he volunteered, had his colleagues. He agreed that the injuries might have been caused by the hollow shaft of a broken umbrella. He agreed also that a fracture of the occipital bone is commonly caused by a person collapsing backwards and hitting the back of his or her head on a hard surface, or the ground. The vaginal injury, he said, could have been caused by a mechanism such as Ms Hodge straddling, or being straddled across, the edge of a wooden item of furniture. The cut on the left hand, he agreed, was similar in kind and age to the cuts on the right hand. All the (recent) injuries, he conceded, could have occurred within five minutes. There was evidence, he said, of Ms Hodge having injected heroin through the tissue between her fingers over a period of weeks to months. Toxicology strongly suggested heroin and methamphetamine use. There was no indication of alcohol use. Heroin, the witness agreed, is a powerful painkiller. Finally, although the witness understandably could not say whether Ms Hodge had held an implement, and had struck someone - that is, in the course of the incident which took place shortly before her death - he could say that the constellation of injuries which he had observed were the consequence of an assault.
36 Re-examined, the doctor expressed the conclusion that the skull fracture, given all the findings present, more likely was the consequence of an assault than a fall.
The evidence of Dr Odell
37 Morris Odell is a senior forensic physician at the Victorian Institute of Forensic Medicine. At relevant times his departmental head was Professor Wells. His work, he said, very considerably involved examination of victims of sexual assaults, and had done so since 1991. He had been shown photographs of the injury to Ms Hodge's vagina, and provided with Dr Burke's post-mortem report. He had not examined Ms Hodge's body. He would say the vaginal injuries "would be extremely rare injuries". They were not, he said, "the kind of injuries that are commonly seen in ... common sexual assault" involving a penis in a vagina. Such injuries were not normally seen "from penile penetration in a mature, sexually experienced woman". Any such injuries are generally in a different area. It was very unlikely that the injuries had been caused by a penis. It would have taken a "very large object" to cause the damage, especially in a sexually mature adult female. It was unlikely that the injury had been caused by coming up against a piece of furniture, unless the furniture had particular characteristics. The injury was in a very sensitive area. He thought it would have been a very uncomfortable, painful injury. Injuries to that area usually bleed quite profusely.
38 Cross-examined, the witness agreed that he had reported that it was not possible to deduce the size or nature of the object that caused the injury.
The applicant's evidence
39 I should now refer to the applicant's evidence at trial. He said that, as at August 2003, he was living alone, although he was committed to trying to improve his relationship with his wife. His drug use had increased during the few months before August.
40 On the evening of 18 August he went to the Casino, and enjoyed success. He noticed Ms Hodge across the table. Some time later they met at the bar. She seemed to be drunk or stoned. He invited her back to his place. He told her that he had drugs there. He thought that was the main reason she agreed to go with him.
41 They drove back to his home in his vehicle and would have arrived at about 3.30 am. He had a beer and she had water. That was in the lounge room. They talked, smoked some "ice" and then had intercourse. At the time they were both naked.
42 Somewhat later, Ms Hodge complained of stomach cramps. She insisted on "scoring" which he took to mean that she wanted heroin. He told her that he did not have heroin. He suggested that she try "ice" instead of heroin. He thought that she was going to leave, and he asked her to stay, offering her $200 if she would stay the night. He also offered her as much ice, speed and cocaine as she wanted. She was happy with that. She calmed down, they had ice, speed, and she performed oral sex on him.
43 But then Ms Hodge was really complaining about stomach cramps. He thought that she meant by what she said that she wanted to "score". He asked her not to go, because it had been a good night until then. She became angry at him and called him an "arsehole" and a "prick". She said that if she had known he did not have heroin she would not have come back to his place. He said that if she wanted to go, then go. This conversation could have occurred about two hours after they got back to his home.
44 Further according to the applicant's evidence, Ms Hodge then collected her clothes and went to have a shower whilst he remained in the lounge room. He began to get dressed. He was in a chair, putting on his boots, when he was struck from behind on the back of the shoulder. As he straightened up, with one hand on a coffee table and one knee on the floor, he was hit again on the right side of the head. As he turned, he saw a flash of yellow and was struck in the middle of the head. He was knocked senseless. After everything had happened, he observed his builder's level on the floor. He had last seen it in the laundry.
45 By now, according to the applicant, he was on his feet, but sort of hunched over. Ms Hodge swung the level at him and he put up his hand to defend himself. He was struck on his right hand "really hard", and on his head as well, by the level. On a coffee table there was a perspex vase that had some plastic flowers in it. His hand contacted the vase, he grabbed it and swung around and must have hit Ms Hodge. He assumed that he had hit her, because the level dropped to the ground. The vase came out of his hand.
46 Ms Hodge began to go through items in her handbag. He thought she was looking for a weapon, and "shit [him]self". He walked towards her, and as he got close he saw a flash of red and was struck to the side of the head. Later he saw that he had been struck by a collapsible umbrella.
47 A fight began. He struck towards her but his injured hand was very painful. He was trying to calm her down or stop her, but they were hitting each other. He hit her to the upper body and head. He ended up with the umbrella handle in his hand, and hit her once. It must have connected her hard, because she "dropped hard" and lay on the floor facing upwards.
48 The applicant gave evidence that he could not say for sure how Ms Hodge had received three quite distinctive injuries to her face. He mentioned the umbrella shaft in that connection, though more as a conclusion based on a present understanding. Nor could the applicant say how many times he had hit Ms Hodge altogether. It had happened very quickly. He would have had to hit her at least ten times.
49 Then, according to the applicant's evidence, he went to the fridge and got ice for his sore hand. He slumped back into a chair and either passed out or fell asleep. When he awoke he noticed that Ms Hodge had moved onto her front, that she had vomited and was in a puddle of urine. He checked her pulse, and there was none. He was "just shattered". Having thought about it, he decided not to go to the police, and that he would try and cover up the incident. He was concerned because of the shame it would cause his family, and also because he feared going to jail.
50 In the event, according to the applicant's evidence, he went to the bedroom and took out a sheet. He undressed Ms Hodge. Then he used a rope to tie a sheet around her body, before wrapping it in the blanket.
51 He described how he collected all the items from the house that night which could provide a link between he, Ms Hodge, and her death. He sorted items into two garbage bags - one containing items that would burn, and others that could be disposed of in a rubbish skip. He described mopping up the lounge room and cleaning it of blood stains, of driving to Beveridge and leaving Ms Hodge's body in a shallow gully by the side of the road. He described driving home, further cleaning up, and then disposing of the rubbish bags, one by burning, and one by dropping it in a work site skip.
52 The applicant said that did not notice that Ms Hodge, after her death, had a clump of hair in one of her hands.
53 He had heard evidence that she had part of a hair brush in her hair when her body was examined. He was extremely surprised to hear about that.
54 Concerning particular injury to Ms Hodge's vagina, the applicant said that evidence given in that connection had also very much surprised him.
55 With respect to his disposing of Ms Hodge's mobile phone to a work acquaintance - it was the discovery of that phone which first led the police to question him - and of telling a work colleague that he had injured his right hand in a work-related incident, the applicant gave explanation. So also he acknowledged that he had been untruthful in his story about a second man accompanying him and Ms Hodge back to his home. He had told the last untruth, he supposed, to "get the spotlight off" him.
56 Concerning his initial statement to the police, the applicant said that he had told a number of lies in order to take the focus of the investigation away from him. He had decided to leave Erinbank Crescent and move to Lorne in the hope of not being found too soon. He had intended to use the passport found in his vehicle, having affixed his own photograph upon it, for use as identification; but not so that he could travel overseas, although it was true that he had told some people in late 2003 that he was going overseas.
57 Then, concerning what he had told the police following his arrest in February 2004, the applicant said that he had continued to lie because he felt that he could not extricate himself. He still felt shame. He did not want to accept responsibility for what he had done.
58 Concluding his evidence in chief, the applicant said that he had not intended to hurt Ms Hodge, let alone kill her.
59 I need not refer to the entirety of the cross-examination, but simply refer to some of its elements.
60 The applicant agreed that this was the first time that he had given the particular account of events, and that before doing so he had been seised of the detail of the Crown case. But he denied manufacturing a story to fit in with unchallengeable evidence. At the same time, of course, he admitted telling a large number of quite detailed lies to the police on the two occasions that he was interviewed.
61 He denied also that he had realized at the outset that Ms Hodge was a prostitute. That, he said, had become apparent when they were at his place. He was not lying about the matter because of what his family might think about him having picked up a prostitute.
62 The applicant admitted that he had told a workmate a lie when saying that he had hurt or broken his hand when falling off a scaffold. The injury, he said, had been sustained during the fight with Ms Hodge.
63 The applicant agreed that he had told the workmate that he had been implicated in a murder, but that he had nothing to do with it. This also, he admitted, was a lie.
64 Further in cross-examination, the applicant said that he had been struck hard on the head a number of times. The spirit-level had been one of the objects used. Nonetheless, according to his evidence he had only bled from a scratch on his nose and from the left inner forearm. He had suffered "decent bruises" to his head, which he saw in a mirror. He could not say whether anyone else could have seen them.
65 Further still in cross-examination, the applicant gave evidence that he could not recall anything specific being said during the struggle with Ms Hodge. She may have yelled out, but he could not recall anything. She had not run away from him. Everything had happened in the lounge room.
66 Concerning the vaginal injuries observed at post-mortem examination, the applicant said that the first he knew of such injuries was from the post-mortem report in the police brief. He had not caused the injuries, nor had any idea how she got them. When they had vaginal sex, she had not appeared to be in pain. He had heard the evidence of Dr Odell that such injuries usually bleed profusely. He had not noticed blood on her underclothes when he undressed her after her death. He "possibly" knew that it would be an issue at trial how Ms Hodge had sustained those injuries. He denied knowing, other things apart, that the vaginal injuries were completely inconsistent with him having acted in self defence.
67 Still further concerning the alleged fight, the applicant described "flailing about" with his arms. He then said that he had not used his right arm, but added that it was possible that he had used his right arm also. He said that he remembered punching Ms Hodge in the head and hitting her with the vase. He may also have used the umbrella. He had no idea how the (part) hairbrush had got into her hair, where it was observed at the post mortem examination. She had hit him a number of times before he retaliated. Blows which she struck with the spirit-level had been very forceful.
68 It had not occurred to him, the applicant said, to run out of the house when he thought Ms Hodge was looking for a weapon in her handbag.
69 At the time of the critical events, he said, he was "high" from the effects of amphetamine and alcohol.
70 At the time of those events, according to his further evidence in cross-examination, he thought that he had to defend himself from Ms Hodge. With hindsight he should have locked himself in a room or run away. He had never intended hurting her. He had just wanted to stop her hurting him.
71 The applicant's evidence at trial thus differed dramatically from the account which he had given the police on 10 October 2003, the accuracy of which he had affirmed in February 2004. Essentially, it averred an absence of murderous intent - indeed, despite the number of blows which he conceded he inflicted upon her, of an intent to do her any injury - or alternatively a killing in self-defence.
72 It is convenient to note, before going further, that Ms Hodge was a woman of slight physique. Dr Michael Burke gave evidence that she was 169 centimetres tall, and weighed 50 kilograms. The applicant, who as I have already noted was a bricklayer by occupation, was much larger and heavier. He gave evidence that his weight in August 2003 was about 78 kilograms. He accepted that he was strong.
Counsel's final submissions
73 One aspect of the Crown's final submissions focused upon the applicant's alleged lies and other post-offence conduct.
74 For the most part, lies which the applicant admitted - and there were many of them - were put as going to his credit. Two lies - one admitted, one denied - were put as having been told in consciousness of guilt of murder, in proof of relevant intent, and as negativing self-defence. First, the applicant's admitted lie, told to a man who employed him, that an injury to his hand, suffered in the incident involving Ms Hodge, had been suffered in an industrial accident. Second, what the Crown alleged, and the applicant denied, was a lie told in evidence that he knew nothing about Ms Hodge's vaginal injuries. The latter, counsel submitted, was a particularly telling lie. For those injuries were such as would negative self-defence.
75 The Crown relied upon some aspects of other post offence conduct as evidencing consciousness of guilt of murder: Cleaning 113 Erinbank Crescent, and disposing of Ms Hodge's body, clothes, and other items linked to the killing. The Crown also relied upon those circumstances as going in proof of relevant intent, and as negativing self-defence. In the last-mentioned connection it relied upon additional conduct - the applicant vacating the Erinbank Crescent premises, going to Lorne, working under a false name, and taking steps to fabricate a passport.
76 Counsel for the applicant, in his final address, submitted that all his client's post-offence conduct had been consistent with the applicant not having intended to kill Ms Hodge, or to do her really serious injury - but was rather explicable by shame, fear of his conduct being misunderstood - and thus of being charged, convicted and gaoled - and of his being locked into a position once he had acted in a particular way and made his first police statement.
77 Specifically concerning the vaginal injuries, counsel submitted that the evidence as to what had caused them was speculative, that Dr Odell had been called in at the last moment to rescue the situation after Dr Burke had said that it was the opinion of an experienced pathologist that such injuries could have been caused by penile intercourse, that the applicant's evidence that he did not know how the injuries had been caused was not a lie, and that vaginal swabs contraindicated the applicant having used a weapon to cause the injuries.
78 In the event, the case was one in which the uses to which the Crown sought to put the different lies, an alleged lie, and other post-offence conduct were clearly defined; as was the response made for the applicant.
The judge's directions
79 The learned trial judge provided the jury with a three page outline entitled "Jury Headings". His Honour then spoke to, extended, and amplified, what was there set out. It is unnecessary to refer to the outline in detail. It can be said that it accurately identified the particular lies - in one case, alleged lie - and other post-offence conduct relied upon by the Crown in proof of consciousness of guilt of murder,[4] proof of murderous intent, and as negativing self-defence; and the issues which the jury needed to consider and determine in that connection.
80 I turn to the oral charge. Relevantly, his Honour directed the jury that there was an issue whether the Crown had proved intent to kill or do really serious injury, and there was an issue whether lawful justification or excuse had been excluded.
81 Concerning intention, his Honour gave a standard direction, in the course of which he briefly touched on the possible significance of post-offence conduct.
82 Then his Honour directed as to the elements of self-defence and provocation, correctly telling the jury that self-defence, but not provocation, had been raised by counsel; but directing the jury that a particular view of the evidence could call consideration of the defence of provocation into play. He explained that counsel's failure to raise the issue was understandable in light of the applicant's denial that he had lost self-control.
83 His Honour then gave this very extensive direction concerning post-offence conduct: