FACTS
27 In a general sense, the facts are not controversial. In two important respects, so it seems to me, there was a dispute which was determined by the learned sentencing judge adversely to the respondent. These controversies are indicated in the following account, which is largely taken from the learned sentencing judge's reasons for sentence.
28 On the evening of 8 February 2003, the deceased, who was the respondent's employee, had dinner with him and others, including the respondent's wife (Yong), at a restaurant in Beamish Street, Campsie. Both the respondent and the deceased had known each other for some time, the respondent having employed him for several years in his roof tiling contracting business. Sometime around the middle of the evening, the party left the restaurant and went to a music studio in Campsie. Leaving the others there, the deceased, Yong, and another man went to another restaurant in Beamish Street, Campsie at about 1.20am where they commenced to drink whisky. At around 2am, the respondent entered the restaurant, yelling and swearing at Yong in the presence of the deceased, the third man having since left. A short time later, the deceased, Yong and the respondent left the restaurant and stood in Beamish Street and the respondent resumed shouting at his wife. In what appears to be an entirely unprovoked assault, the respondent then punched the deceased about three times, causing him to fall to the ground. (I interpolate here that seems that it would have taken very little force to have achieved this, as the deceased was very drunk indeed - a blood sample taken perhaps an hour later revealed the very high concentration of 0.336 grams/100 mL.) The deceased stood up and made his way to a nearby bench where he sat down. The respondent also sat on the bench but, shortly after, stood up and punched the deceased around his upper body or head several more times. The deceased rose from the bench only to fall to the ground, face down (as the eye-witness recalled, but see the pathologist's report, referred to below), where the respondent punched him again about five more times. Yong tried to pull the respondent away from the deceased and was herself struck several times in the face by the respondent. Yong and the respondent then walked off around the corner, leaving the deceased, who had rolled over onto his back, on the ground.
29 Mr Il An, a passer-by who spoke Korean, and who had witnessed the respondent's assaults, went to the aid of the deceased but was unable to detect any breathing although it is clear that he was still alive. At this point the respondent returned, pulled the deceased into an upright position and said words to the effect, "Let's go home". An asked the respondent who the deceased was and he replied that they worked together. The respondent then let go of the deceased, allowing him to fall backwards, his head hitting the ground hard. The respondent then walked to the other side of the street, entered his vehicle and drove off.
30 The deceased was conveyed to Canterbury Hospital but did not regain consciousness and was pronounced dead at 5.44pm on 10 February 2003. The cause of death was traumatic isolated subarachnoid haemorrhage.
31 It is important to read this account of the facts in light of the undisputed medical evidence contained in the autopsy report prepared for the Coroner by Dr Johan Duflou, of the Department of Forensic Medicine at Glebe. The report summary contains the following -
"At autopsy, there was no obvious injury to the head on external examination and very minor abrasion of parts of the trunk and limbs only. Internal examination revealed two small bruises to the back of the head. There was a dense basal subarachnoid haemorrhage. No specific site of bleeding could be identified at the time of the initial examination, and further detailed examination …will be conducted." [That detailed examination did not take the matter any further.] In addition to the bleeding, there were two rib fractures, and advanced coronary artery narrowing with scar formation in the heart muscle."
32 The rib fractures were described as a fracture of the eighth rib on the right laterally with a moderate amount of surrounding haemorrhage into soft tissues and a fracture of the sixth rib on the left anteriorly with a moderate amount of haemorrhage into the surrounding soft tissues. There is no evidence as to the extent of these fractures or when they were suffered. As far as the evidence goes, which is confined to the autopsy report, the fractures may have been quite small although they were associated with bleeding into the surrounding soft tissues. The Crown statement did not refer to these injuries.
33 The learned sentencing judge, in briefly describing the cause of death, noted, "There were relevantly also found bilateral rib fractures." In light of the absence of any evidence as to when the fractures were suffered, I find it difficult (with great respect) to understand how the finding of relevance was made, especially since, as it was adverse to the respondent in a significant respect, it could not be made unless it had been proved beyond reasonable doubt. Even if the relevant standard of proof were the balance of probabilities, a conclusion that the respondent caused these injuries is not justified, in my view. There is no evidence as to how old the "associated bleeding" was and the autopsy revealed no connected external bruising. However that may be, there is no evidence, and his Honour did not find, that these injuries contributed to the respondent's death: if relevant they went, of course, to the violence of the respondent's attack at that point.
34 The detailed autopsy findings showed that there were no injuries evident on external examination of the scalp, face and other structures of the head and neck. The learned trial judge (relying, I think, on the evidence of An) stated that the respondent possibly punched the deceased in the head area. If this occurred, the punches were obviously slight since no injury at all resulted from them and no inference could be drawn that any injury was, in fact, intended. At the same time, no other injuries were apparently caused by the respondent's blows described by Mr An to the upper body of the deceased. The two bruises to the back of the head, it seems almost certain, were caused when the deceased fell. In light of the qualified character of An's statement (tendered in the proceedings) and in terms of his Honour's finding, this Court should proceed upon the basis that there were no blows or, at least no significant or forceful blows, to the deceased's head. The learned trial judge did not refer to the medical evidence except to identify the cause of death, from which I infer that it was not controversial. The uncontested medical evidence was a very significant objective indication of the true nature of the respondent's assaults and, accordingly, on the evaluation of his culpability for the deceased's death.
35 To return to the autopsy findings, Dr Duflou noted that subsequent dissection of the head revealed a 30 x 10 millimetre area of red bruising in the right occipital region of the scalp and a 60 x 20 millimetre blue/red bruise in the left occipito-temporal region of the scalp. It seems reasonable to conclude that these injuries resulted from trauma inflicted during the respondent's attack on the deceased and, in all likelihood, at least one resulted from his fall to the pavement when he was let go by the respondent as described above. It seems unlikely that the latter bruise was inflicted when the deceased fell "face down" after he got up from the bench for the second time. The absence on any injury to the face rather suggests that, if indeed his face struck the pavement, it did so with very little force. As the bruises were the only injuries to the head, it seems reasonable to infer that one or other or both of them played a significant role in the injury which caused the subarachnoid haemorrhage. However, this conclusion is somewhat suppositious, since no evidence was tendered to the learned sentencing judge (or, for that matter, to us) which explained their significance. It may be that there was some agreement about this matter which was communicated to the judge in submissions but the submissions were not transcribed and do not form part of the material before us. A number of abrasions were found on the trunk and arms and legs of the deceased, all of them fairly small and many of them "very faint". There was also a small blue bruise noted on the inner surface of the deceased's left thigh. It is impossible from the autopsy report to gather whether these abrasions were or may have been caused during the respondent's assaults on the deceased but, as a lay person, I find it difficult to understand how punches might result in abrasions but not in any bruising. It is probably significant in this respect that the deceased was a roof tiler working on a building site and it may be that these abrasions were suffered by him at various times whilst at work, but this is speculative. However, what seems to be clear is that no inference could be drawn without expert evidence that these abrasions were caused by the respondent. The Crown statement of facts tendered below does not contain any such allegation and the learned sentencing judge made no such finding for, as it seems to me (with respect), obvious reasons.
36 The learned judge concluded that the deceased's death was caused (one way or another, as I understand his remarks on sentence) by the unlawful assaults of the respondent, which comprised the unlawful and dangerous act giving rise to the offence of manslaughter to which the respondent had pleaded guilty.
37 The respondent gave evidence before his Honour, the substance of which was that he and the respondent had engaged in a fight in which each of them had exchanged blows but that he was unable to recall much of what happened due to his own state of inebriation. Although he recalled (at the end) picking the deceased up to a sitting position and thinking that he was asleep and trying to wake him, he did not recall dropping him back onto the ground although he did not deny doing so. Whether dropping the deceased was intentional or hostile is a matter difficult to determine on the facts as elicited below. Of course, if it were either unintentional or not hostile it would not have been an assault and, accordingly, if death were caused by an injury resulting from that act, the respondent would not have been guilty of manslaughter. However, the respondent's plea of guilty must be taken to amount to an admission that, indeed, he had assaulted the deceased and that one or more of those blows caused his death and that a reasonable person in his position would have realised that there was an appreciable risk of serious injury arising from that conduct: Wilson v The Queen [1991-1992] 174 CLR 313.
38 The respondent and his wife, Yong, went home after the incident but, by the time Yong awoke at about lunchtime, the respondent had left. She did not know where he went. Having discovered Yong's address by following up some items of hers left at the scene, police went to Yong's home in Redmond Street, Canterbury on the evening of 9 February. The respondent, however, was not there, having left sometime before Yong awoke at about lunchtime. It appears to have been accepted that, due to her level of intoxication at the time, she had no recollection of events from sometime before the party arrived at the restaurant.
39 Yong had suffered a bruise to underneath her left eye and a swollen cheekbone but could not remember how they were caused. (These injuries may be contrasted with the absence of injuries on the deceased.) Yong went to the hospital with the police in an attempt to identify the victim, who was then in the Neurosciences Intensive Care Unit. She told police that he was one of her husband's employees and that she believed his name was Mr Baek, informing them also of the address of the block of units where she believed he lived, although she did not know in which particular apartment. Yong said that she did not remember being present when Mr Baek was assaulted and did not know who assaulted him. Sometime after Yong returned home that night, the respondent also returned. He was obviously very worried and nervous. He told his wife, in substance, that he had been very drunk and, though he did not remember everything that happened, recalled getting angry with Mr Baek and his wife for refusing to leave the restaurant and insisting that they wished to have more to drink, that an argument broke out, that they left the restaurant and sat down outside, Mr Baek being so drunk that he slumped forward from where he was sitting on the bench and fell to the ground. The respondent told Yong that there was a scuffle involving the three of them. He also told her that when Mr Baek slumped to the ground, he did not get up. The respondent decided to take Yong home and then return for Mr Baek but, when he returned (as I understand the account), the ambulance was already there and he was worried that the police would come and he would get in trouble so he just left and returned home.
40 Yong informed the respondent, of course, about the interest of the police and how badly Mr Baek was hurt. They were both "very scared" and the respondent in particular, was worried that the police were looking for him. Yong told the respondent what the police had told her, namely that the police would be in contact and arrange a time to speak to him. Yong and the respondent stayed together that night at their house. The respondent left home on the following morning and his wife did not see him for some days; although he spoke to her several times by telephone, she did not know where he was. At about 9.40am on 14 February, however, following a conversation between the respondent's legal advisers and investigating police, he attended with his wife and his legal representative at the Burwood Police Station, declined to say anything about the matter and was charged with the murder of the victim. At that time, the victim was still not positively identified. It appears that the respondent's wife had given the police every assistance both with respect to locating her husband and identifying the victim.
41 From the point of view of the police investigation, the next event occurred on 3 March 2003 when police attended the office of the respondent's solicitors where an employee gave them a sports bag which contained a wristwatch, $500 cash and the deceased's Korean passport. It was then, of course, possible to identify him. It appears that the victim had carried the bag on the night that he was attacked. However, up to this time, significant police resources had been utilised in an attempt to undertake the task of identifying the victim. One of the consequences of the delay in confirming his identity was that there was a substantial delay in informing his relatives in Korea of his death. It cannot be doubted that this would have been likely to have exacerbated their anguish, either because he could not be contacted or because of their awareness of the delay once they were informed of his death.
42 Amongst other things, police discovered that the respondent had employed, on the building site where he was undertaking a tiling contract, seven persons, including the deceased, who were unlawfully in Australia, as I take it, having arrived here on tourist visas which had long since expired.
43 The respondent said in evidence that his recollection was significantly affected by his intoxication and he found it difficult to distinguish between what he actually remembered and what he was told. This was not really disputed by the Crown. He said, however, that he remembered exchanging punches "a couple of times", arguing with his wife and that "then Mr Baek collapsed". The respondent claimed that Mr An told him that he was too drunk and should go home and he would take care of Mr Baek. The respondent expressed remorse and gave evidence to the effect that he had been very troubled by what had happened.
44 In cross-examination, the respondent said that he did not recall the victim falling to the ground following a punch; although he recalled that he was on the ground, he did not remember how that had happened. His recollection was that he and the victim were sitting on the bench, that the respondent was engaged in an altercation with his wife, that he then turned around and the victim was on the ground and that he did not see him falling. The respondent said that, so far as he knew, the victim fell to the ground once, although he could not be certain. He had no recollection of hitting the victim whilst he was lying on the ground. He recalled leaving the scene and then returning to where the victim was lying on the ground and picking him up to a sitting position, thinking he was asleep and trying to wake him up. He did not recall dropping the victim from that position back onto the ground although he recalled that Mr An was there at the time. He did not deny, however, that he might have dropped him. It is obvious that the learned sentencing judge did not accept the respondent's evidence about mutual punching and preferred Mr An's statement in this respect. This conclusion was certainly open to his Honour.
45 I have already drawn attention to the medical evidence which, as it seems to me, demonstrates virtually to the point of certainty that, if the respondent struck the deceased in the face and head, those blows were insignificant because they caused no observable injury. Nor was there medical evidence that any other blows caused any direct injury to the victim. Although the learned sentencing judge described the fractured ribs as "relevant", it is not clear what inferences his Honour drew from their presence. If they were caused at the time of the incident (a matter which, in substance, was denied by the respondent in his evidence) they would bespeak the use of a fair amount of force but it is obvious that they were unrelated to the cause of death. On the other hand, if they had been suffered at some earlier time then the victim may have been suffering considerable discomfort from them which made it difficult, together with his state of inebriation, for him to defend himself. On the state of the evidence, it does not seem to me that the learned sentencing judge could have concluded that the former was the case absent any concession from the respondent, whose evidence was inconsistent with any such concession.
46 Bearing mind the Crown's onus of proof of adverse facts, this offence therefore had the following features: the victim died from a brain haemorrhage suffered, almost certainly, when he fell on the back of his head; his fall, contributed to, probably substantially, by his extreme inebriation, was caused by at least one assault by the respondent; the fall from his being let go from a seated position was probably not an assault at all, since it may not have been associated with a hostile intent; in themselves, the assaults, though repeated, were trivial in the sense that they caused little or no direct injury; the respondent did not intend to injure the victim and had not foreseen the risk of any serious injury. This description is established by the objective evidence and, so far as I can see (with the possible exception of the broken ribs, which were not mentioned in the Crown statement of facts and, for the reasons already given, could not be attributed to the appellant), uncontroversial. There was no premeditation or previous ill will towards the victim. The respondent's acts appear to have resulted from a spontaneous outburst of drunken, foolish anger.
47 The learned sentencing judge described the offence as follows -
"The savage attack on the part of the prisoner, affected as it was by considerable ingestion of alcohol, was nonetheless a protracted period of violence which resulted in the death of a human being through no apparent fault of that human being."