R v Moffatt

COUNSEL : Crown: M. Marien Appellant: A.M. Martin SOLICITORS : S.E. O'Connor Mark Lees & Assoc CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - murder - trial by judge alone - role of Court of Appeal - causation - whether death of deceased caused by act of appellant - where more than one possible cause of death - where constitutional defect - admissibility of admissions - confabulation - reliability of admissions. Criminal Appeal Act 1912 (NSW) s6(1) LEGISLATION CITED : Criminal Procedure Act 1986 (NSW) s17 Crimes Act 1900 (NSW) s424A Evidence Act 1995 s 85, 85(2), 86, 90, 135, 136, 137, 142, 189(3) DECISION : (1) Appeal dismissed; (2) Conviction and sentence confirmed

TUESDAY 23 MAY 2000 Regina v Anthony Stuart MOFFATT

The appellant was convicted of the offence of murder, following trial by judge alone. Both he and the deceased had consumed significant quantities of alcohol before becoming engaged in an argument in the course of which the appellant struck the deceased with a hammer and strangled him. The deceased was in poor health due to advanced cardiac disease and alcoholism. The issue in the trial was whether the death was attributable to the appellant, or to cardiac failure or acute alcohol toxicity independent of any act of the appellant.

The appellant appealed against the conviction on the grounds that; (1) the oral admissions alleged to have been made by him and admissions contained in his ERISP should not have been admitted into evidence; (2) the evidence did not prove beyond reasonable doubt that the death of the deceased was caused by an act of the appellant.

Ground 1: admissions If evidence is led which suggests that the truth of an admission may be adversely affected, then the Crown must prove on the balance of probabilities that it is unlikely that this was the case. The evidence of the admissions had significant probative value and there was no unfairness to the appellant. Although the judge did not specifically refer to s85 and 90 of the Evidence Act, the argument as to admissibility having been pursued under SS 135 and 137 of the Act, his findings addressed the issues arising under those sections as well.. Having regard to the expert evidence, the judge was correct in receiving the evidence.

The appellant's observations of the deceased were not unreliable because he lacked medical expertise, since they were of the kind a lay person could make. Nor were they unreliable because of the effects of the alcohol he had consumed.

Ground 2: causation The fact that a deceased has a constitutional defect which makes him more susceptible to death does not assist the defendant. It is incorrect to search for a principal cause of death. If contribution of the accused is present, it is irrelevant that there is more than one possible cause of death.

Hayward (1908) 21 Cox CC 692, Murton (1862) 3F & F 492 (176 ER 221), Martyr (1962) Qd.R 398, Blaue (1975) 1 WLR 1441, Smithers (1977) 24 CCC (2d) 427, Mamote-Kulang (1964) 111 CLR 62, Butcher (1986) VR 43, McKinnon (1980) 2 NZLR 31, Pagett (1983) 76 CR App R 279 applied.

Where the precise mechanism of death is "obscure", the question is whether, approaching the matter in a common sense way, the appellant accelerated the death of the deceased, in that his actions provided a substantial contribution toward the death of the deceased. It was open to the judge to be satisfied beyond reasonable doubt, that the appellant had attacked the deceased and that this attack was the substantial cause of his death. Although the autopsy results offered several possibilities, considering all the evidence, the only reasonable hypothesis open was that found by the judge.

Royall (1990) 172 CLR 378 applied, Smith (1959) 2 QB 35, Evans and Gardiner (No 2) (1976) VR, Bingapam (1975) 11 SASR 469, Hallett (1969) SASR 141, Osland (1998) 159 ALR 170, Hennigan (1971) 3 All ER 133, Cato (1976) 1 WLR 110, Smithers (1977) 34 CCC (2d) 427, Puckeridge 1999 HCA 68 considered.

No. 60193/99 WOOD CJ at CL FOSTER AJA ADAMS J

TUESDAY 23 MAY 2000 Regina v Anthony Stuart MOFFATT JUDGMENT

1 WOOD CJ at CL: Following trial, by judge alone, the appellant was convicted of the offence of murder. The single most important issue at the trial, and at the appeal, was whether upon the evidence, the death of the deceased was shown, beyond reasonable doubt to have been caused by an act of the appellant. 2 An allied issue, of considerable relevance to this issue, was the admissibility of certain oral admissions alleged to have been made by the appellant when first spoken to by police, and of other admissions contained in his electronically recorded interview (ERISP), conducted later that morning.

PRINCIPLES GOVERNING THIS APPEAL 3 The Court of Criminal Appeal is a court of error, and does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial Judge where acting alone: Kyriakou (1987) 29 A Crim R 50, and Kurtic CCA (NSW) 26 February 1996 unreported. 4 Where, as in the present case, the relevant ground is that the verdict, or more accurately the finding on the question of guilt by the trial Judge (S 17 Criminal Procedure Act 1986) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (S 6(1) Criminal Appeal Act 1912), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant: M (1994) 181 CLR 487 at 493, and Jones (1997) 149 ALR 598. In that event error permitting the substitution of a verdict of acquittal is established: Coombe CCA (NSW) 24 April 1997 at pp 11 and 12. 5 What is required in this respect is attention to the matters identified in Fleming (1998) 158 ALR 379, Giam (1999) 104 A Crim R 416, and Gipp (1998) 194 CLR 106.

THE FACTS 6 The deceased Richard James Fyfe, died during the early hours of 26 April 1996 in the home unit the appellant shared with Ronald Godfrey. During the afternoon of 25 April the appellant, Godfrey and a friend William Williams, had been drinking moselle mixed with water, and methylated spirits. They were joined by the deceased who contributed a cask of wine to the occasion. 7 At some stage during the drinking session, the deceased, upon the Crown case, became involved in an altercation with the appellant, in the course of which he was struck several times about the chest with a hammer and manually strangled. Whether or not the prosecution was able to prove these matters depended upon the admissibility of the appellant's 'admissions', to which I will return. 8 The others present at the unit claimed to have little awareness of what had occurred. Godfrey recalled the appellant becoming upset about something and smashing a mirror with his fist. Subsequently he fell asleep. When he awoke he saw the deceased lying on the floor. Williams claimed even less knowledge about the death of the deceased, it being his assertion that he had not even seen him arrive. He had gone to sleep drunk and was unaware of any argument. 9 Evidence was called from the occupants of an adjoining unit. Jodi Keane said that she heard yelling and thumping coming from the appellant's unit followed later by the sound of glass smashing. She said that subsequently the appellant came to her door and said "You have to help me, I've killed someone" - although in cross examination she agreed that he may have said "they've killed someone". When she went into the flat, the appellant said "I'm really sorry. I didn't want yous (sic) to see this side of me. It shouldn't have happened". He added that the deceased had called him "a dog". He indicated an intention to go out to buy some cigarettes after which he would hand himself in to police. Godfrey and Williams she said were drunk and laughing. 10 Kellie Findley similarly heard banging, smashing and yelling from the appellant's unit. When the appellant came to the door of their unit, she recalled him saying that he thought that he had strangled a guy and that he was dead. When she went into his unit she saw the deceased lying on the floor. Williams and Godfrey were laughing. They and the appellant appeared very drunk. Joseph Both gave similar evidence concerning the conversation at the door to Jodi Keane's unit. 11 Police attended the unit at 12.40am and found the deceased slumped on the floor, dead. Ambulance officer Wise who arrived at about 12.45am, and confirmed that the deceased was dead, noticed that he had a blue tinge about the face. At 12.55am the appellant was stopped on the Kingsway at Cronulla near the Cronulla Police Station, to which he was then taken. 12 Former Incremental Sergeant Hazlewood informed the appellant, at about 3.45 am, after making some preliminary inquiries, that he was under arrest for murder. After being cautioned, the appellant made the following admissions: "Well I killed him because he called me a dog and the two other old cunts had nothing to do with it. They're both in their 60's and I am 36. It was no problem. I am taking it on the chin. I killed him, I just choked him and snapped his neck". 13 At about 4.45am, according to Sergeant Hazlewood, the appellant added, while standing in the dock: "I hit him with a hammer to the chest and put my hands around his throat and killed him. The old guys were pissed and they don't know jack shit. Well I'll do a lot of time, years over this one".

These conversations were recorded in the officer's notebook, but were not adopted by the appellant, either at the time when he was spoken to by Sergeant Hazlewood, or when he was interviewed by detectives later. The notebook was not offered to the appellant to read and sign nor was he asked to read it or adopt it. Sergeant Hazlewood was of the opinion that the appellant was "very intoxicated". 14 The appellant participated in an ERISP commencing at 6.15 am on 26 April. He said, during this interview, that he, Godfrey and Williams had been drinking methylated spirits and water, and wine during the afternoon before being joined by the deceased. At some point, he said that he and the deceased argued because he was unable to show him his knife. He (the appellant) then began to smash up the place with a hammer. When the deceased called him a "dog" he grabbed him by the throat. He was pulled off by Godfrey and Williams. Some time later when the deceased repeated, "You're still a mutt" he struck him, with the hammer, in the chest, and grabbed him around the throat. He heard the sound of cracking when he hit the deceased in the chest. While seizing him by the throat he heard another crack, after which he saw his eyes roll back and his tongue turn blue. The deceased, he said, was trying to push him off while this occurred. He checked for a pulse in his neck and placed a broken piece of mirror or glass, against his mouth to see if he was breathing. 15 He said later in the interview: "I hit him with the flat (of the hammer) …. Then I put me hands around his throat and I just didn't let go until he stopped breathing. Looks like I went a little bit overboard, didn't I?" 16 The appellant volunteered, in relation to his own tolerance to alcohol: "Like I can drink anything you know, 8 to 12 litres a day, you know, and that's including about two litres of metho on top of that, that's a lot of drinking, a big day". 17 It was the assessment of Detective Sergeant Jones, who interviewed the appellant, that although he thought him to be "slightly affected" by alcohol, he appeared to be lucid and to be giving sensible answers to his questions. 18 At 8.00am, a blood sample was taken from the appellant. His blood alcohol reading was 0.180 grams of alcohol per 100 millilitres of blood. It was estimated by Dr. Moynham and by Dr Judith Perl, a forensic pharmacologist, that at 6.15am, when the interview began, it would have been between 0.20 and 0.245 grams per 100 ml, and that at 12.30am, the estimated time of the death of the deceased, it would have been between 0.277 and 0.375 grams per 100 ml. 19 Dr. Moynham said that he expected a heavy drinker of alcohol and methylated spirits to develop a "fairly strong tolerance" for alcohol, and would be able to cope with a blood alcohol concentration that, for average persons, would be "embalming" them. 20 Dr. Wong, a forensic psychiatrist, interviewed the appellant on 9 September 1998, and took from him an account that was consistent with that given in the ERISP. He was unable to detect any gross impairment in the appellant's cognitive functioning. Upon viewing the ERISP he concluded that it was unlikely that the appellant had been confabulating, or that he was other than fully aware of what he was being asked. His conclusions, in this regard, were related to the fact that he did not manifest any signs of intoxication, to the fact that much of what he said had been corroborated by independent evidence, and to the manner in which he corrected the police or asked for ambiguities in their questions to be clarified. In his opinion the appellant had developed a significant degree of tolerance to alcohol, an opinion shared by Dr. Judith Perl, who said that a person with a drinking pattern of the kind which was given by the appellant in the ERISP, would be "extremely tolerant" to alcohol.

21 Dr. Perl similarly examined the appellant's ERISP and concluded that his answers were appropriate and responsive, indicating that his cognition was "not significantly impaired" by the alcohol he had consumed. Her evidence is sufficiently encapsulated in the following question and answer: "Q. Does the demeanour and manner of speaking of the accused during that interview enable you to express any view as to his cognitive ability at the time? A. I would have said his cognition was almost intact, very little impairment of his memory and certainly full - appeared to have full comprehension of the questions, gave appropriate answers, there didn't seem to be any obvious significant impairment of his coordination, so I would have put him as being slightly impaired." 22 Dr. Strum, a forensic psychiatrist, interviewed the appellant on 5 September 1998. He was unable to detect any sign of disorientation or organic brain damage, but thought that the history of personality traits supplied was suggestive of frontal lobe syndrome. He thought the appellant to be an alcoholic who suffered from a borderline personality disorder with poor judgment and poor impulse control. He saw no reason why he should not have been able to choose to take part in the ERISP, the viewing of which gave no indication of any abnormality or of cognitive impairment on his part. Dr. Strum later added that he could not have pretended to have been functioning normally if in fact he did not have that capacity. 23 His evidence was supplemented by that of a neuro-psychologist, Alexandria Walker, and by a psychologist, Anna Robilliard. The former concluded that the appellant had suffered mild cognitive impairment (particularly in aspects of frontal lobe function) because of his history of alcohol consumption. Ms Robilliard, who conducted the standard psychological tests, expressed the view that while the appellant displayed signs of severe disturbance across most areas of social and interpersonal behaviour, brain damage was not detected on those tests. 24 A certificate was also tendered as to the blood alcohol level of the deceased, which was determined as 0.482 grams per 100 millilitres of blood. The level of alcohol in his occular fluid (0.537 grams per 100ml) and in his urine (0.559 grams per 100 ml) was even higher. Dr Perl said that a reading of 0.482 grams per 100 ml, is likely to result in coma and, most likely in death, except in people who have an extreme tolerance to alcohol as a result of their heavy alcohol intake. 25 Post mortem examination of the deceased, by Dr. Lawrence, revealed that he had suffered fractures to two ribs. Blood was found in his lungs indicating to Dr. Lawrence that he was still alive when his ribs were fractured. Those injuries were consistent with him having been struck by a hammer and with the production of an audible cracking noise. An oblique fracture to the thyroid cartilage was found, along with bruising to the neck of the deceased. The fracture to the cartilage was not itself life threatening, and could have occurred immediately before, at the time of, or just after death, (ie during the peri mortem period). 26 Three factors contributing to death were noted by him, namely the "combined effects of compression of the neck, blunt force chest injury, and acute ethanol intoxication". A fourth significant condition of the deceased was noted, namely that he had a seventy five percent occlusion of a coronary artery, which made him vulnerable to the risk of sudden death, without prior warning signs. 27 The description of the appellant seeing the tongue of the deceased turn blue and his eyes roll back, Dr. Lawrence said, was consistent with the description of a person "being strangled to the point of unconsciousness". The presence of forceful movements, while being strangled, and the absence of breathing, or of a pulse, a short time later, was suggestive to him of a temporal link and causal nexus, between the neck compression and death. 28 A blue tongue, he conceded, could also be indicative of death from a heart attack or from alcohol poisoning, while the rolling back of the eyes could be a sign of a coma due to acute alcoholic intoxication. Although there were no signs of petechial haemorrhages, a common sign in cases of manual strangulation, that, he said, can occur where the compression to the neck is quick and forceful. 29 The normal path towards death from alcohol toxicity, Dr Lawrence said, involved a person becoming progressively more comatose, although that depended on how quickly the alcohol was ingested. 30 Dr. Lawrence agreed that, based purely on the autopsy findings, he could not attribute to any one of the likely causes identified, ie neck compression, acute alcohol toxicity, and cardiac arrest due either to atherosclerosis, or to blunt chest trauma, a higher degree of probability than another. 31 He said, however, that if the deceased had been arguing with the appellant, and had attempted to push him off as he was being strangled, then it would appear that he had not been in a comatose state due to alcoholic intoxication. He also said that sudden compression of the neck and the forceful application of blows to the chest of a person suffering a significant occlusion of a major coronary artery, could contribute to or accelerate a sudden death from that cardiac condition. 32 Dr. Byron Collins, a forensic pathologist, who was called by the defence, said that it was not possible to determine which of the potential causes of death identified by Dr. Lawrence was "the most likely". They may have acted individually or in conjunction. Those observations, however, so it became clear from his evidence, were based solely on the "pathological findings". 33 The thyroid cartilage fracture, which could be associated with a loud crack, he said was unusual in a case of manual strangulation, but not impossible. The absence of petechial haemorrhage, he also agreed, while common in cases of manual strangulation, was not so uncommon as to exclude that possibility. It was also possible, he said, that the neck injuries were due to a fall or were occasioned after death. The rolling of the deceased's eyes and the change in colour of his tongue, he thought, did not indicate anything specific other than that the cerebral, musculature and cardiac functions were compromised. Whether that was due to the cardiac problems or to asphyxia he was unable to say. 34 The toxic effects of alcohol he explained as acting as a depressant for the central nervous system, particularly the respiratory centre, which can cause breathing to stop, leading to death. Additionally, the toxic effects can damage the heart fibres and produce cardiac arrhythmia of sufficient severity to produce death. 35 Another possibility, that emerged in his evidence, related to the circumstance that manual strangulation can lead to sudden death where there is an interference with the carotid sinus and the vagus nerve, a consequence that is more likely in a person predisposed to cardiac arrest. It would in fact help, in the present case, to explain the lack of petechial haemorrhage, as Dr. Collins explained. 36 Passing from the pathological findings to the events described by the appellant, Dr. Collins said: "Q. If in this case there was evidence from Mr. Moffatt that the man in question was able to talk some short time before death and, indeed, attempted to push off his assailant just prior to death, would that scenario suggest that this was not death by someone slowly lapsing into an alcoholic coma?

A. I think that's quite reasonable. It's certainly not what one would expect in somebody who's going into respiratory depression and death, but it is entirely consistent with an irritable heart causing sudden arrhythmia and death induced by alcohol." … "Q. Dr. Collins, if you assume that the account given by the accused to police was correct, that at the time that he applied pressure to the neck, that the deceased was attempting to push him off - A. Yes. Q. - without success? A. Yes. Q. then there was a crack? A. yes. Q. And then there was apparent lifelessness? A. yes. Q. In rapid succession? A. yes. Q. Does that suggest to you that the compression of the neck provided some operating and substantial causation resulting in death? A. Well, as I said, it may have. It may have been - the compression may have been related to the carotid sinus stimulation. Simply the fact that there is a crack in the neck doesn't mean to say that then there is sufficient force there to produce asphyxial type death and we have already commented about the significance or otherwise of the lack of the petechial haemorrhages, but it does not exclude entirely the other conditions that are present in this man, whether aggravated by the manipulation of the neck or not, and that is his coronary artery disease and his high blood alcohol level."

THE ADMISSIONS 37 It was submitted that his Honour fell into error in receiving into evidence the admissions made to former Incremental Sergeant Hazlewood, as well as those contained in the ERISP, upon the basis that they were involuntary, or alternatively upon the basis that their reception was unfair to the appellant, attracting the provisions of SS 85(2), 90 and 135, or 137 of the Evidence Act 1995. 38 Initially there was no objection taken at trial in relation to the admissions recorded by Sergeant Hazlewood, even though the occasion of that conversation fell squarely within the operation of S 424A of the Crimes Act 1900, and possibly also S 86 of the Evidence Act. 39 Section 424A of the Crimes Act renders inadmissible evidence of admissions made by an accused person at a time when he or she was, or ought reasonably to have been, suspected by an investigating official of having committed an offence, unless there is available to the Court a tape recording of the interview in which the admission is made; or if a reasonable excuse for the absence of such a tape recording is established, there is available a tape recording of a subsequent interview in which the accused states that an admission was made in the terms alleged; or alternatively, the prosecution establishes that there was a reasonable excuse as to why neither of the tape recordings could be made. 40 This section, the operation of which was reviewed by this Court in Horton CCA NSW 2 November 1998, unreported, was applicable because the appellant was informed that he was under arrest for murder before he volunteered the relevant admission. Absent proof of the existence of a reasonable excuse for the absence of either of the tape recordings contemplated by S 424A, the evidence was not admissible to show that the appellant had made the admissions described. 41 Objection was only taken to its tender after the evidence was concluded. Although tendered, initially, as an admission of guilt once objection was taken, the Crown abandoned any intention to rely upon it for that purpose. At the request of counsel for the appellant, it was thereafter treated as available as a matter relevant for the issue of confabulation which arose in relation to the ERISP. Although not using the words of S 136 of the Evidence Act, it is clear that his Honour thereafter effectively limited its use to that issue. 42 Had that course not been taken, for the tactical reasons that appealed to counsel, then consistently with the decision of this Court in Horton, the evidence should have been excluded in its entirety. 43 The issue concerning the admissibility of the ERISP turns upon the following provisions of the Evidence Act: S 85 (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) in the course of official questioning, or (b) … (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2) it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

(b) … S 90 In criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

S 135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or

(b) … (c) … S 137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.: 44 The admissibility of the ERISP depends upon whether:

a) the Crown had carried the onus required by S 85(2) of the Act, of showing that the circumstances in which the admissions were made were such as to make it unlikely that their truth was adversely affected;

b) notwithstanding the effects of the alcohol consumed, the appellant made a sufficiently free choice to participate in the ERISP, and whether

c) in all the circumstances, it would be unfair, or unfairly prejudicial, to the appellant to allow the Crown to rely upon that interview, or more specifically the admissions contained within it - matters of particular relevance for SS 90, 135 and 137 of the Act. 45 Any question as to its admissibility fell also to be determined in accordance with the following provisions of the Evidence Act. S 142 (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or (b) … have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding, and (b) the gravity of the matters alleged in relation to the question.

S 189 (1) If the determination of a question whether: (a) evidence should be admitted (whether in the exercise of a discretion or not), or (b) evidence can be used against a person, or (c) … depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question. (2) … (3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant."

46 So far as the S 85 inquiry is concerned I repeat what I said in Esposito CCA (NSW) 20 November 1998 at 30. "The correct analysis is, in my view, as follows: If upon the evidence led on the voir dire (and/or in the trial to that point) a question legitimately arises as to whether the circumstances were such that the truth (or untruth) of the admission might have been adversely affected, then it falls to the crown to establish upon a balance of probabilities (Evidence Act S 142) that it was unlikely that this was the case. The inquiry undertaken by the Judge is not concerned with the question whether the admission was in fact made, or whether it was true (or untrue); each is for the jury (S 189(3)) Evidence Act). 47 Similar considerations arise in relation to S 90 which permits a discretionary exclusion of evidence where, having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use it. 48 So far as SS 135 and 137 are concerned, it is beyond question, provided the reliability issue was resolved in favour of the prosecution, that the evidence of the admissions had significant probative value. The question of unfair prejudice to the appellant, arising in respect of these provisions, was bound up in the very same question which fell for determination under SS 85 and 90, namely whether having regard to the state of the appellant when interviewed, there would be a lack of fairness, or unfair prejudice to him in the tendering of the admissions. 49 The question of admissibility seems to have been argued at trial, and decided adversely to the appellant, only in the context of SS 135 and 137 of the Evidence Act, and in the context of the warning that his Honour was required to give, and did give, to himself under S 165 (1)(a) and (c) of that Act. 50 The circumstances now said to be of relevance for S 85, and for the remaining provisions, concern the effects of intoxication upon the appellant:

a) firstly at the time of the incident , and specifically at that point, in relation to his awareness of what was occurring, and his ability to understand or gauge the significance of the signs which he saw in the deceased, and to fix them in a proper context of time;

b) at the time of the making of the admissions, and specifically at that point, in electing to speak to police, and in being able to recount, in a lucid and accurate way what he had seen, or heard, during any altercation with the deceased. 51 At the trial these issues were examined by reference to whether or not the Crown had excluded beyond reasonable doubt the possibility of confabulation, and if so, whether or not the ERISP was, in all the circumstances, to be regarded as reliable. 52 As to the first, his Honour found that confabulation had been excluded taking into account the following matters: · Dr. Wong's assessment that it was unlikely that the account to police was invented; · the fact that the interview showed, consistently with the medical evidence, that the appellant had developed a significant tolerance to alcohol; · that absence of signs such as slurred speech when interviewed; · the circumstance that the accounts the appellant gave to the neighbours, and to Sergeant Hazlewood before the ERISP and subsequently to Drs Strum and Wong, were substantially similar and consistent with the account given in the ERISP.

In my view the finding in this respect was the only finding reasonably open, having regard to the expert evidence, and the matters identified by his Honour. 53 As to the second, his Honour had regard to the submissions that: · inebriated persons are not reliable witnesses; · in some respects the version given was confused or contradictory; · the appellant's assessment of the level of intoxication of the deceased was awry. 54 His Honour also resolved this point in favour of the Crown, after taking into account the evidence of the professional witnesses which was in turn based upon the appellant's responsive and lucid answers, and upon the fact that he was able accurately to paraphrase certain matters put to him by the police, to correct mistakes made by them, to seek clarification of certain questions, and to disagree with some matters put to him. 55 I can see no error in the approach taken by his Honour in relation to this evidence, or to the assessment that, although the blood alcohol level of the appellant was high, his tolerance was such as to minimise its effects. The expert evidence in fact was all one way in this regard, and was supplemented by the absence of any clear indication of underlying brain damage. Moreover, the circumstance that the appellant had his wits sufficiently about him to try the pulse and breathing of the deceased to see if he was still alive, was a powerful indication that he was not significantly affected by alcohol, and that his cognitive powers were unimpaired. 56 His Honour appropriately, in this respect, also rejected the submission that the account given was implausible, in so far as the appellant had claimed to have murdered someone who was a complete stranger, or had grossly overreacted to an insult, or had argued over a trivial matter, or had underestimated the degree of intoxication of the deceased, or had given answers which were possibly inconsistent concerning the time interval between the two insults. 57 I can see no error whatsoever in his Honour's assessment in this regard. Indeed Dr Strum provided an explanation for the way in which the appellant responded to what might have been seen to be trivial insults, namely that it was attributable to his personality disorder. 58 I can also see no error in the approach which his Honour took, in relation to the independent evidence corroborative of the events described in the interview, of which Dr Strum thought the appellant seemed to have a full memory. That evidence came from the neighbours and police concerning the damage done to ornaments and the like in the unit; concerning the presence of the blood of the appellant (but not of the deceased) on the hammer which he acknowledged in the ERISP, came from his hand which he cut while smashing those objects; concerning the presence of broken ribs in the deceased which, according to the expert evidence, would be expected to be accompanied by cracking sounds of the kind the appellant described; concerning the presence of bruise marks upon the throat of the deceased and of a fractured thyroid cartilage, again consistent, according to the medical evidence with the actions the appellant described and the further crack he heard; and concerning the fact that, as foreshadowed to the neighbours, he was found by the police only metres away from the police station to which he said he was going. 59 In my view, although the critical issue seems not to have been addressed specifically in the terms of SS 85 and 90, at least at the time of tender of the ERISP, the factual findings expressly made by his Honour in his reasons for the findings on guilt necessarily subsumed the issues arising under those provisions, so far as he found that the ERISP was reliable. Moreover, so far as the appellant's free exercise of choice to participate in the ERISP is concerned, this was clearly put to rest by Dr Strum. 60 Having regard to my assessment that his Honour's findings on guilt, as well as those in the judgment of 18 March 1999, concerned with SS 135 and 137, were free of error, I am of the view that the challenge to the tender of the ERISP, and of evidence of Sergeant Hazlewood, has not been made good.

CAUSATION 61 As noted above, the evidence raised a number of possible causes of death:

e) a combination, of all or any two or more, of those causes 62 It was submitted that, in those circumstances, the Crown could not have satisfied his Honour beyond reasonable doubt, that an act of the appellant caused, or accelerated the death of the deceased. More precisely, it was submitted that the reasonable hypothesis that the act of the appellant, which he may have believed caused or contributed to the death of the deceased, occurred after he was already dead or at a time when he was coincidentally dying from unrelated causes. 63 So far as this submission rests upon the argument that the observations of the appellant, the subject of the admissions, were unreliable because of the effects of alcohol, and could not be used to displace any reasonable doubt available on the expert evidence, that proposition has not been made good. 64 The associated proposition concerning reliability depends upon a somewhat different consideration - namely that even assuming the appellant's observations and the timing of the events described were reliable, nevertheless, because he lacked medical qualifications, they were of limited or negligible value. This submission, in my view, seeks to place too much significance upon the nature of those observations. They did not depend upon medical expertise. Rather, they were the kinds of observations that a lay person could make which, when considered in the light of the expert evidence, were consistent with the victim being alive before any attack by the appellant. 65 His Honour, having noted the evidence of Doctors Lawrence and Byron Collins, correctly observed that the appellant, having used violence on the deceased, had to take him as he found him: Hayward (1908) 21 Cox CC 692 at 693; Murton (1862) 3F & F 492 (176 ER 221), Martyr (1962) Qd.R 398, Blaue (1975) 1WLR 1411 at 1415 and Smithers (1977) 24 CCC (2d) 427 at 437. Mamote-Kulang (1964) 111 CLR 62 is clear authority for the proposition that the presence, in the deceased, of a constitutional defect unknown to his assailant which makes the victim more susceptible to death than would be a person in normal health, does not enable the assailant to claim that death is an accident: Windeyer J there observed, at 79: "A killing is not less a crime because the victim was frail and easily killed".

See also Van Den Bemd (1994) 179 CLR 137. 66 It does not matter that there is more than one cause of death: Butcher (1986) VR 43, even if the victim is suffering from a condition that is threatening death, so long as the contribution of the accused later mentioned is present. It is indeed a misapplication of principle to attempt a search for a principal cause of death: McKinnon (1980) 2 NZLR 31 and Pagett (1983) 76 CR App R 279 67 In the present case, it is true, the appellant was confronted with a man who was susceptible to sudden death, because he had atherosclerotic disease, because his blood alcohol level approached a lethal level, and because he suffered from alcohol related liver disease, which may have reduced his resistance and otherwise impaired his health. 68 Having noted that the precise mechanism of death was "obscure", in those circumstances and upon the pathology, his Honour correctly in my view identified the issue for determination as being whether, by his actions, the appellant accelerated the death of the deceased in a way that met the test of causation. 69 On that issue of causation his Honour then correctly directed himself by reference to the fact that in Royall (1990) 172 CLR 378, each of Mason, CJ; Deane and Dawson JJ; and Gaudron and Toohey JJ, in their separate judgments, cited with approval: "… the comments of Burt CJ in Campbell v The Queen (1981) WAR 286, where the following was said: (at 290) '(It is) enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.'" 70 The formulation of the test to be applied was not stated by their Honours in identical terms. Brennan J, said that the accused's act or omission 'must contribute significantly to the death of the victim (at 398). Deane and Dawson JJ said that it would be sufficient if the accused's conduct "is a substantial or significant cause of death' (at 411). The 'causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused.' (at 412). Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon 'whether the act of the accused substantially contributed to the death' (at 423). McHugh J said that the wrongful act must be "An operating cause and a substantial cause" (at 444). 71 What is clear is that the act of the appellant must have more than a coincidental or insignificant effect - rather it must provide a substantial contribution towards the death of the deceased: See also Smith (1959) 2 QB 35; Evans and Gardiner (No2) (1976) VR 523; Bingapam (1975) 11 SASR 469 at 480; Hallett (1969) SASR 141; and Osland (1998) 159 ALR 170 at 174. Although there has been some debate as to whether the expression "significant" is interchangeable for "substantial" in this context, (see Vol 24 Criminal Law Journal April 2000 at 73), I am content to accept for the present purpose the latter. 72 If the appellant's act does not initiate that process of death, then it has been held, that it must at least accelerate it by an amount that is "more than de minimis": Hennigan (1971) 3 All ER 133; Cato (1976) 1 WLR 110, and Smithers (1977) 34 CCC (2d) 427 at 435 Such expression is, however, somewhat lacking in certainty, and I would prefer to employ a test in terms requiring a substantial contribution to any process that is under way, in order to achieve a consistency in relation to acts initiating and accelerating death. Nothing, however, turns upon that in this appeal, as it is evident that his Honour looked for an accelerating contribution that was substantial. 73 The alternative hypotheses identified in the present case related to the possibility that the deceased had suffered a heart attack, or was dying from the effects of alcohol toxicity, before the appellant struck him in the chest and seized him by his throat, and that the signs he saw in relation to the eyes and tongue of the deceased were attributable to those events, rather than to any act of his. 74 His Honour found a number of difficulties in the way of the possibility that the deceased had died, or was in the process of dying, before he was struck or strangled by the appellant, that scenario being inconsistent with the appellant's account of the events, and with his observation that the deceased had seemed fine before the altercation. It was also inconsistent with the autopsy finding of haemo-aspiration which, Dr. Lawrence said, suggested that the deceased was alive when his ribs were fractured, and with the presence of bruising to the chest which, Dr. Lawrence similarly said, made it more likely that the hammer blows occurred before death. The appellant's observations that the deceased was attempting to push him away in the course of the strangulation, ie was making forceful movements, also indicated that he was still alive. Even more conclusive, his Honour thought, was the temporal link described by the appellant, between the neck compression, the crack, the rolling of the eyes, and the cyanosed appearance of the tongue followed by the absence of signs of life. 75 Together, these circumstances, which in my view were compelling, led his Honour to the conclusion, approaching the matter in the common sense way directed by the authorities, that the actions of the appellant were the substantial and operating cause of death. To the circumstances noted might also be added the fact that the deceased was speaking to the appellant immediately before he was struck with the hammer, ie was not comatose as might have been expected had he been on his way to death because of ethanol intoxication; and the further fact that the post mortem examination showed him to have been a heavy drinker, who in accordance with well established medical knowledge, was likely to have developed a substantial level of tolerance to alcohol that may have been lethal to others. Additionally, there is the circumstance that, because of his pre-existing conditions, he was particularly vulnerable to physical violence. 76 As was the case in Puckeridge 1999 74 ALJR 373a, it was in my view open to his Honour to be satisfied beyond reasonable doubt that the appellant had physically attacked the deceased, and that this attack either coincided with or immediately preceded his death. Once this conclusion was reached it was equally open to him to dismiss, as unreasonable, the possibility that his death was unconnected with the attack, but was attributable to the entirely coincidental suffering of cardiac arrest or collapse due to alcoholic toxicity. In this regard, while, on a purely scientific or philosophic basis, the autopsy findings left open several possibilities, once they were considered in the light of the events as described by the appellant, the only reasonable hypothesis open was that found by his Honour. 77 For these reasons I am of the view that the appeal should be dismissed and the conviction and sentence confirmed. **********

IN THE COURT OF CRIMINAL APPEAL 60463/99 60193/99

TUESDAY 23 MAY 2000 Regina v Anthony Stuart MOFFATT JUDGMENT 78 FOSTER AJA: I agree with Wood CJ at CL.

No. 60193/99 WOOD CJ at CL FOSTER AJA ADAMS J TUESDAY 23 MAY 2000

79 ADAMS J: I agree with the judgment of the Chief Judge at Common Law.

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