The Background
11 The incident which gave rise to the charge of murder against the applicant occurred during the evening of 16 July 2002 at the home of the applicant's partner, Suzanne Langdon, in Amaroo Street, Chadstone. Ms Langdon had been in a de facto relationship with the deceased between about 1992 and May 2002 and until the time of their separation they resided together in that house. Both the deceased and Ms Langdon were heroin addicts and the evidence indicated that their relationship had been quite volatile. They had one child, a boy, who was born in January 1996, and significant tensions had arisen between them with respect to access arrangements for the child. It would also seem to be reasonably clear that the deceased experienced great difficulty in accepting that their relationship was at an end.
12 Shortly after the break up of this relationship, Ms Langdon, in May 2002, entered into another with the applicant and he moved into the Amaroo Street house.
13 On the morning of 16 July 2002, the deceased telephoned Ms Langdon seeking to have a discussion with her about maintenance and other matters. She agreed to meet him at the Richmond railway station for this purpose. However during the afternoon of that day, in a number of telephone calls, he insisted upon seeing her at her home. She rejected his requests and became increasingly agitated about the possibility that he would nevertheless arrive there.
14 In the late afternoon, after finishing work for the day, the applicant went to Ms Langdon's mother's home which was situated a short distance from the Amaroo Street house. Ms Langdon, her mother and other persons were present. Shortly thereafter, Ms Langon left and walked to a nearby bottle shop to purchase alcohol. On her return, she walked past her own home and became suspicious that the deceased may have been inside. She returned to her mother's home and informed the applicant that she believed he was there.
15 Upon hearing this, the applicant, in company with John Langdon (Ms Langdon's brother), drove to Amaroo Street, arriving there soon after 7.00 p.m. The applicant parked his car in the driveway of the house and entered the house, but found no one present. He checked the backyard which was in darkness and again saw no one.
16 The applicant and John Langdon then returned to the front of the premises and shortly afterwards heard the sound of smashing glass was heard. Although the deceased had not been sighted, it soon became apparent that he had caused this noise by smashing the headlights of the applicant's motor vehicle.
17 The deceased then entered the rear yard of the premises, carrying a "stubbie" of beer. On observing the next door neighbour, Christopher Wright, near the dividing wooden paling fence, the deceased approached him and engaged him in conversation.
18 Wright had been working in his backyard and was walking to his back door when he heard someone say "oi" or some similar expression. He had not been aware anyone was at the house next door until then. When he turned, he saw the deceased who commenced to rail against the applicant, saying things like "He's forced me out of the house" and "I want to get back". He told Wright that he had just smashed the headlights of the applicant's car. Apparently sensing that Wright did not want to become involved, the deceased became angry and directed various obscenities at him for "taking their side." Wright responded that he had to live next door and that his response was not directed to the deceased personally.
19 He had a second conversation with the deceased about two or three minutes later as he was standing on his rear porch[7]. He presumed that the deceased must have been standing on the bottom rail of the dividing fence with his arms on the top rail. The deceased was holding a "stubbie" in one hand, but whether he had anything in his other, Wright was unable to see.
20 As Wright was talking with the deceased, who he noted had been drinking, "just out of the blue there was this almighty thud", which "scared the living daylights" out of him. The deceased then disappeared off the fence. Wright stood there "sort of dumbfounded" and saw what appeared to be "like a stick coming up and down over the fence" at least four to five times. He could not hear anything save for the noise it made "swishing through the air" and a thud, that he presumed was the deceased hitting the ground. He rushed to the fence and saw that the applicant was hitting the deceased with the "stick". The deceased was "virtually laying like where [Wright had been] talking to him." He was, Wight thought, lying on his side, but he was not sure. At this point, Wright saw the applicant hit the deceased with the "stick" "approximately two or three times", in a "full-on frenzied behaviour", and he screamed at him to stop, whereupon the applicant immediately threw it down. Wright called out "What are you doing, you are going to kill him if you keep going!" The applicant responded with words to the effect of "fuck him, he smashed my lights how am I supposed to get to work tomorrow". Wright said something to the effect that it was not worth killing the deceased over a couple of headlights.
21 Wright then walked towards his house, but returned when he appreciated that the applicant had not moved away. When Wright reached the fence, he saw the applicant, who was obviously still seething and really angry, saying things to the deceased like "you dog, you cunt, you happy now". He was down on one knee punching the deceased to the head. Wright again screamed at him to stop. The applicant jumped up and Wright thought that he tried to pick up the deceased. Wright called out to the applicant that he had gone "way too far this time" and then went inside his house.
22 Suzanne Langdon stated that she had lived at Amaroo Street with the deceased until May 2002 and the applicant from July 2002. The deceased and she used heroin and there was violence in their relationship. On the evening of 9 May 2002, they had an argument and she told him that she wanted to break up with him and commence a relationship with the applicant.
23 She stated that the deceased maintained some telephone contact with her thereafter. On one occasion in June, he came to the Amaroo Street house and a problem arose when he would not leave the premises. Ms Langdon's mother attended and together they managed to manoeuvre him out of house before they both left. On that occasion he was drunk and affected by drugs. After that incident she spoke to him a "couple of times" on the telephone, primarily concerning arrangements for access and maintenance.
24 On the weekend before 16 July 2002, there had been an access arrangement. Ms Langdon picked up the boy from the deceased, on the Sunday, at a city fast-food shop. They had a discussion about maintenance, which continued after they returned to the deceased's daughter's flat in North Melbourne, where he was staying at the time. The deceased indicated that he wanted to effect a reconciliation, but appreciated that she did not want this. Ms Langdon stayed overnight at North Melbourne as he would not let her leave and her son was scared. In any event, she stated, it was too late to get public transport home and she had not wanted to disturb her mother. She went home with her son on the following morning. Later that day, she discussed the previous night with the applicant, telling him that she had stayed not because she had wished to but because she felt trapped.
25 On the morning of 16 July 2003, she spoke to the deceased by telephone and they discussed meeting at the Richmond railway station later in the day. More telephone conversations ensued between them over the following hours. The deceased said he wanted to meet her to give her money for their son. Ms Langdon was at her mother's home in Chadstone when she received one of these telephone calls at about 3.45 p.m. The deceased said that he wanted to see her at her house and she told him that she did not want him to go there. He insisted that he would and said that he did not care who was present or what visitors were there. He was angry and she became very distressed by the telephone calls. She called him twice, repeating that he was not to come, but he hung up both times.
26 The applicant arrived from work at her mother's house between 4.00 to 4.30 on that afternoon and she apologised for the number of phone calls between herself and the deceased and "all the trouble that had been going on." The applicant did not know a great deal about the difficulties she was encountering in securing maintenance for her son[8]. The applicant then went to the Amaroo Street house to have a shower. While he was away, she had a further telephone conversation with the deceased and again he said that he was coming around. At some stage, the applicant rang her and told her that he had received two calls from him and he told her to ring the deceased. She called him at around 7.00 p.m. and again told him not to come around, but he expressed determination to do so.
27 She decided to go for a walk, hoping that she would see him and settle things down. She called in at the Matthew Flinders Hotel but he was not there. It was approximately 7.00 p.m. and dark when she began to walk back to her mother's home. She went through the park at the rear of Amaroo Street and as she continued past her house she noticed that there was "something about some lights" that attracted her attention. She thought that the deceased, who had a set of keys, was inside. When she arrived at her mother's house, she told the applicant about the lights and she thought that he indicated that he may have left the television on, but that he was not sure about other lights. Later, the applicant and her brother, John, decided they would go to the house to check. She indicated that everyone, save herself, was calm.
28 About half an hour later, she received a telephone call from the applicant who said that he was at the Amaroo Street house. Her mother then decided to drive, with the applicant's son, Mark McKeown, to Amaroo Street.
29 John Langdon lived with his mother at Burton Street, Chadstone. He was home all day on 16 July 2002 watching television and was present when the telephone calls were made between Ms Langdon and the deceased.
30 The witness was watching a news broadcast at around 6.15 p.m. or 6.20 p.m., when the applicant arrived. He (the applicant) stayed for a short time and then went home to have a shower, returning after about half an hour. Shortly afterwards, Langdon and the applicant left the house in the applicant's Ford station wagon and drove to Amaroo Street. The applicant drove, talking about work and there was no discussion concerning the deceased. Although the applicant suggested they go to the house and "have a look after tea", according to John Langdon, he had seemed "calm and happy" at the time.
31 When they arrived at the house, they parked behind another white car in the driveway. Everything seemed quiet, although there was light burning inside. The applicant and he went to the front door which the applicant unlocked. They checked inside and did not see anything out of the ordinary. Both men then went to the back yard which was in darkness, apart from the light from the basketball arena car park lighting at the rear. Observing nothing of significance they went to the front of the premises.
32 A couple of minutes later, John Langdon heard "a couple of bottles clanging". The sound emanated from the rear of the house. The applicant handed him his mobile telephone and walked up Amaroo Street towards Waverley Road. Langdon stood on the footpath for about five to 10 minutes. He then heard a "smash, smash" from the front of the house, but again did not see anything. He walked across the road and leaned against a tree. After a short time, he started to walk towards Power Avenue, intending to walk home to Burton Street.
33 A couple of minutes later, he encountered his mother in her vehicle. He got in and they went back to Amaroo Street. John Langdon noticed that the front door was open and his mother, Mark McKeown and he went inside. He heard a sound like an "uugh", which came from the outside rear of the premises, while he was in the kitchen area and went to investigate. At first he could not see much until his eyes focussed, but then made out a shadow on the ground, near the clothesline. It was the deceased and he was lying in "a coma position". The police and ambulance arrived about 15 minutes later.
34 Margaret Langdon, the mother of Ms Langdon and John, stated she lived at Burton Street, Chadstone, with John Langdon and another daughter, Kaye Langdon. Ms Langdon (Suzanne) called in at about mid-afternoon. Margaret Langdon went out at about 3.00 p.m. to pick up the children from school and then returned home. She observed that Suzanne was on the telephone during the afternoon, but she was too busy to notice what was said. The applicant arrived at her home at around 4.30 p.m., and later he went home to have a shower. She prepared the evening meal and thought they had "tea" between 5.00 and 5.15 p.m.
35 Later, after dark, Suzanne decided to go for a walk to buy some liquor. The witness heard her return about 15 to 20 minutes later. There was a discussion about a light being left on and she heard the applicant say "We'll go and check the house for you." The applicant and John left to do so. Although she could not be specific about what time this was, she thought that it was about 6.30 p.m.
36 She stated that not long after the evening meal she drove to Amaroo Street. On the journey, she saw John walking and stopped to pick him up, then continued and parked her car behind the applicant's station wagon. The front door of the house was wide open. John and she entered and walked through to the rear of the property where they saw the applicant, who she thought was "standing out somewhere just outside the back door". They asked what was wrong and he replied "Rick is laying over there, we had a fight." John and the witness attempted to help the deceased, but to no avail. After the police and ambulance arrived she noticed that there was damage to the headlights of the applicant's station wagon which was parked at the front of the house.
37 The relationship between Ms Langdon and the deceased had been volatile and he had been violent. She had seen him affected by drugs and alcohol and was aware that Ms Langdon was still having contact with him regarding their son. The telephone calls in the afternoon of 16 July 2002 had made her daughter extremely distressed. The witness heard her yelling during them and believed she was talking to the deceased.
38 Matthew Lynch, a forensic pathologist who conducted the post-mortem examination, stated the deceased's skull and cheekbones were fractured. He observed bruising under the skin to the neck, head, face and back of the head, and bruising on the back of the right hand underneath the skin, but nothing on the left hand. He obtained two blood alcohol samples of 0.19 per cent and 0.21 per cent. There was morphine in the blood and urine, and evidence of chronic injection marks on the inside of the left elbow, suggesting a history of intravenous drug use. There was also evidence in the blood of recent cannabis use.
39 Dr Lynch stated there was evidence of multiple facial bruises, scalp lacerations and fractures of the skull associated with brain injury. He stated he had observed a minimum of eight separate blows comprising two to the right side of the face, around the ear and cheek, one to the forehead, two to the left cheek, one to the back of the head on the left, one to the front of the neck, one to the chest on the left, and one to the chest on the right. He stated that the pattern of the skull fractures indicated "significant force applied to [the deceased's] head and face."
40 Dr Lynch stated that the deceased had four broken ribs, two on each side of his body. When asked whether, having seen the implement found at the scene, any of the injuries he observed were consistent with blows from it, he said: