R v PL

Crimes Act 1900 LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912

AJS v The Queen [2007] HCA 27; (2008) 235 CLR 505 Alramadan v DPP (NSW) [2007] NSWCCA 322 Attorney General's Reference (No 4 of 1980) [1981] 1 WLR 705 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Brown v Repatriation Commission (1985) 7 FCR 302 Burrell v The Queen [2007] NSWCCA 65 Burrell v The Queen [2009] NSWCCA 193 Carlton v The Queen [2008] NSWCCA 244 Doney v The Queen (1990) 171 CLR 207 Green v United States, 355 US 184 (1957) HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292 Kaliyanda v The Queen [2007] NSWCCA 300 Keir v The Queen [2007] NSWCCA 149 Kelly v The King (1923) 32 CLR 509 Krishna v DPP (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 Maxwell v The Queen (1995-1996) 184 CLR 501 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 The Queen v Hanias (1976) 14 SASR 137 The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Butcher [1986] VR 43 R v Cheng [1999] NSWCCA 373; (1999) 48 NSWLR 616 R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 R v Horry [1952] NZLR 111 R v Hutchinson [2003] WASCA 323; (2003) 144 A Crim R 28 R v JMR (1991) 57 A Crim R 39 CASES CITED : R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 R v Leivers and Ballinger [1999] 1 Qd R 649 R v McKinnon [1980] 2 NZLR 31 R v Miller [1951] VLR 346 R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 R v Murrell [2001] NSWCCA 179 R v Onufrejczyk [1955] 1 QB 388 R v R (1989) 18 NSWLR 74 R v Robertson (1913) 9 Cr App R 189 R v Ryder [1995] 2 NZLR 271 R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 R v Snow (1915) 20 CLR 315 R v Spathis [2001] NSWCCA 476 R v Swindall (1864) 2 Car & K 230; 175 ER 95 R v Thatcher [1987] 1 SCR 652 R v Turner [2001] WASCA 344; (2001) 25 WAR 258 R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 Rasic v The Queen [2009] NSWCCA 202 Royall v The Queen (1990) 172 CLR 378 Smith v The Queen [2000] 1 WLR 1644 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 Vallance v The Queen (1961) 108 CLR 56 Weissensteiner v The Queen (1993) 178 CLR 217 WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66 Williams v The Queen (1986) 161 CLR 278 XCO Pty Ltd v Commissioner of Taxation (Cth) (1971) 124 CLR 343

PARTIES: Director of Public Prosecutions (Appellant) PL (Respondent)

COUNSEL: D Arnott SC (Appellant) W Terracini SC, J Trevallion (Respondent)

SOLICITORS: Solicitor for Public Prosecutions (Appellant) Archbold Legal Solutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 450

• 29 - IN THE COURT OF CRIMINAL APPEAL CCA 2008/6766

SPIGELMAN CJ McCLELLAN CJ at CL R A HULME J

The respondent stood trial for murder in the Supreme Court. On 4 May 2009, Rothman J directed the jury to return a verdict of not guilty to murder, which was the charge on the indictment, and not guilty to manslaughter.

The Director of Public Prosecutions appealed against the directed verdict, pursuant to s 107 of the Crimes (Appeal and Review) Act 2001.

HELD (per Spigelman CJ, McClellan CJ at CL and R A Hulme J agreeing)

Question of law 1 The formulation 'question of law alone', in the context of s 107 in overturning a fundamental principle of criminal law, namely the principle of double jeopardy, indicates that an appeal on a mixed question of fact and law is not permitted under s 107: [24]-[25]. R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 applied. Williams v The Queen (1986) 161 CLR 278; Smith v The Queen [2000] 1 WLR 1644 considered. XCO Pty Ltd v Commissioner of Taxation (Cth) (1971) 124 CLR 343; Alramadan v DPP (NSW) [2007] NSWCCA 322; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; Carlton v The Queen [2008] NSWCCA 244; HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292; Krishna v DPP (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220; Rasic v The Queen [2009] NSWCCA 202; Brown v Repatriation Commission (1985) 7 FCR 302; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 referred to.

2 A ground of appeal alleging that the trial judge did not correctly apply stated principles to the facts of a case involves a mixed question of fact and law because it entails an assessment of the facts: [26].

Cause of death 3 It is not necessary to establish a precise act causing death in order to establish either murder or manslaughter: [46]-[49]. Royall v The Queen (1990) 172 CLR 378; Attorney General's Reference (No 4 of 1980) [1981] 1 WLR 705; R v McKinnon [1980] 2 NZLR 31; R v Ryder [1995] 2 NZLR 271 applied. Weissensteiner v The Queen (1993) 178 CLR 217; Burrell v The Queen [2007] NSWCCA 65; Burrell v The Queen [2009] NSWCCA 193; Kaliyanda v The Queen [2007] NSWCCA 300; Keir v The Queen [2007] NSWCCA 149; R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201; R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101; R v Butcher [1986] VR 43; R v Onufrejczyk [1955] 1 QB 388; R v Robertson (1913) 9 Cr App R 189; R v Swindall (1864) 2 Car & K 230; 175 ER 95; R v Horry [1952] NZLR 111; R v Thatcher [1987] 1 SCR 652 referred to.

4 Justice Rothman erred by proceeding on the basis that it was necessary for the Crown to identify a particular act of the accused which caused the injuries that led to death. This error raised a question of law alone: [59] [66]-[70] [72].

Orders 5 Justice Rothman directed a verdict of acquittal on both murder and manslaughter. It is open to the Court to quash one or both of these verdicts under s 107(5): [82].

6 The change brought around by s 107, namely, an abrogation of the double jeopardy principle, is a powerful consideration indicating that the Court was intended to be able to exercise its discretionary powers so as to minimise the injustice associated with a new trial after an acquittal. Even if there had not been a directed verdict on both murder and manslaughter, it would be open to the Court, pursuant to s 107(6), to order a new trial limited to manslaughter: [84]. AJS v The Queen [2007] HCA 27; (2008) 235 CLR 505 applied. R v Murrell [2001] NSWCCA 179; (2001) 123 A Crim R 54 considered. Kelly v The King (1923) 32 CLR 509; R v Snow (1915) 20 CLR 315; Vallance v The Queen (1961) 108 CLR 56; R v Cheng [1999] NSWCCA 373; (1999) 48 NSWLR 616; R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108; The Queen v Hanias (1976) 14 SASR 137; R v Miller [1951] VLR 346; R v Hutchinson [2003] WASCA 323; (2003) 144 A Crim R 28; R v Turner [2001] WASCA 344; (2001) 25 WAR 258 referred to.

7 In an appeal against an acquittal by directed verdict, the Court should exercise its discretion not to order a new trial if it is satisfied that a conviction would be overturned as unreasonable, or on any other basis which would not result in a new trial on a successful conviction appeal: [90]. If the Court formed the opinion that an appeal from a new trial would be upheld, then that new trial would constitute a relevant abuse of process: [93]. Maxwell v The Queen (1995-1996) 184 CLR 501 considered.

8 In the present case, the Crown case for the mens rea element of murder is exceptionally weak. If the respondent were convicted of murder on a new trial, that conviction would be overturned as unreasonable on appeal; therefore, a new trial should be limited to a charge of manslaughter: [94]-[96].

2 Quash the verdict of acquittal on the charge of manslaughter.

3 Order a new trial limited to a charge of manslaughter. IN THE COURT OF CRIMINAL APPEAL CCA 2008/6766

SPIGELMAN CJ McCLELLAN CJ at CL R A HULME J

Thursday 8 October 2009 REGINA v PL Judgment 1 SPIGELMAN CJ: The respondent stood trial for murder in the Supreme Court. On 4 May 2009, Rothman J directed the jury to return a verdict of not guilty to murder, which was the charge on the indictment. However, his Honour also directed the jury to return a verdict of not guilty to manslaughter. Although the transcript records: "At His Honour's Direction the Jury Returned a Verdict of Not Guilty", his Honour expressly indicated he would pose both questions to the jury. 2 The Court has before it an appeal by the Director of Public Prosecutions against this directed verdict pursuant to s 107 of the Crimes (Appeal and Review) Act 2001. By force of s 111(1)(b) of that Act, the publication of matters which may identify a person who has been acquitted is prohibited. 3 Section 107 is, relevantly, in the following terms: "(1) This section applies to an acquittal of a person: (a) by a jury at the direction of the trial Judge, or (b) by a Judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the Judge without a jury, or (c) by the Supreme Court or the Land and Environment Court in its summary jurisdiction in any proceedings in which the Crown was a party. (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone. … (5) The Court of Criminal Appeal may affirm or quash the acquittal appealed against. (6) If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 1978 ) order the detention or return to custody of the accused person in connection with the new trial. (7) If the acquittal is quashed, the Court of Criminal Appeal cannot proceed to convict or sentence the accused person for the offence charged nor direct the Court conducting the new trial to do so. …" 4 The Notice of Appeal states that the Director appeals: "ON GROUNDS involving the following questions of law alone: 1 Whether his Honour erred in finding that there was no case to answer. 2 Whether his Honour erred in applying the principles applicable to the direction of verdicts of acquittal to the present case. 3 Whether his Honour erred in finding that it was necessary for the Crown, in order to establish that there was a case to answer, to identify a particular act on the part of the accused bringing about the injury which caused the death of the deceased in order to: (a) establish the necessary intent for murder or manslaughter; and/or (b) exclude all reasonable hypotheses consistent with innocence." 5 With respect to Ground 3, Mr D Arnott SC, who appeared for the Crown, propounded in oral submissions a question of law as if the words "in order to", where second appearing, and subpars (a) and (b) did not appear. The matters identified as (a) and (b) in the Ground as originally pleaded, he submitted, should be regarded as provided by way of particulars. Mr W Terracini SC, who appeared with Mr J Trevallion for the respondent, took no objection to this course. 6 Accordingly, Ground 3 is: "Whether his Honour erred in finding that it was necessary for the Crown, in order to establish that there was a case to answer, to identify a particular act on the part of the accused bringing about the injury which caused the death of the deceased." 7 The breadth of Ground 2 was also narrowed in oral submissions. Although accepting that his Honour correctly stated the relevant principles, Mr Arnott submitted that his Honour did not apply the principles applicable in a circumstantial case in two respects. Ground 2 is: "Whether his Honour erred in applying the following principles applicable to the directions of verdicts of acquittal: (a) That a circumstance cannot be rejected because it alone cannot lead to an inference of guilt. (b) That the prosecution does not have to exclude a hypothesis consistent with innocence." 8 As s 107(2) makes clear, the subject matter of the appeal is the acquittal. The "ground" which must be identified is the basis of the appeal. 9 Grounds 2 and 3, as reformulated at [6] and [7] above, allege 'error' in a common formulation for identifying a ground of appeal in this Court. (See R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [76].) 10 The first issue in this case is whether Grounds 2 and 3, as reformulated, identify a "question of law alone".

Question of Law 11 In my opinion, Ground 1 does not identify or particularise anything that could be described as a question of law. (See R v JS supra at [74]-[75].) In its submissions, the Crown did not attempt to articulate any question of law that was "involved" in any respects other than those already discussed in relation to Grounds 2 and 3. 12 Mr Arnott accepted that authority in this Court was to the effect that the formulation "question of law alone" did not permit an appeal on a mixed question of fact and law, referring to a number of cases, of which the most recent is Rasic v The Queen [2009] NSWCCA 202 at [12]. 13 Mr Terracini submitted that Grounds 2 and 3 involve a mixed question of law and fact. 14 In this respect I repeat my observations in R v JS supra where I said: "[80] The Respondent submitted that the grounds in the proposed amended Notice of Appeal involved a mixed question of fact and law and were accordingly not 'a question of law alone' as established in Williams v The Queen (1986) 161 CLR 278 at 287, 301 and 314. The direction to the jury, the Appellant submitted, was based on the combined effect of her Honour's interpretation and the absence of evidence as to the accused's knowledge that any proceedings were federal judicial proceedings, within the definition of the Crimes Act. [81] The application of the reasoning in Williams supra, to the formulation in s 107 of the Act is by no means clear. The Criminal Code of Tasmania, which established the right of appeal from an acquittal under consideration in Williams, was different from the recent New South Wales statute. The Tasmanian provision referred to an appeal by leave 'against an acquittal on a question of law alone'. The New South Wales provision is more expansive in its reference to 'against any … acquittal on any ground that involves a question of law alone'. The reference to the 'involvement' of a 'question of law alone' in a 'ground' is wider than the use of the word 'on' in the Tasmanian statute. [82] In any event, Williams is distinguishable. The issue there under consideration concerned the discretionary exclusion of evidence. That is quite different from what happened in the present case, which involved separate steps. The first was her Honour's determination of the proper construction of the statutory offence. The second was her Honour's determination, on that construction, that there was no evidence capable of supporting the charge. This was not a mixed question of fact and law. There was a question of law, followed by a question of mixed law and fact. [83] The interpretation of the provision was the relevant, indeed determinative, step and that step does answer the description of a 'question of law alone'. Accordingly, the words 'such acquittal' in s 107(2), which must be read relevantly as stating 'acquittal by a jury at the direction of the trial judge', did involve a question of law alone." 15 With respect to Ground 2, there was nothing equivalent to a misinterpretation of a statute in the present case. Justice Rothman accurately set out the relevant principles for determining whether or not he should direct a verdict of acquittal. His Honour referred to relevant authorities including Doney v The Queen (1990) 171 CLR 207, R v R (1989) 18 NSWLR 74 and R v JMR (1991) 57 A Crim R 39. 16 Amongst the principles his Honour identified were: the Crown case must be taken at its highest and it is for the jury, not the judge, to resolve conflicts of evidence ( Doney; R v R ); it is not sufficient to find that a conviction would be unreasonable, within the statutory formula for criminal appeals found in s 6 of the Criminal Appeal Act 1912 ( R v R; Doney ); and it is not sufficient in a circumstantial case, as the case before his Honour was, for a trial judge to conclude that there was a reasonable hypothesis consistent with innocence ( R v JMR ). 17 No complaint is made by the Crown about his Honour's statement of the applicable principles. The issue sought to be raised by the Crown on Ground 2 was whether or not he applied the principles.

18 Mr Arnott directed attention to passages in his Honour's reasoning in which he made references which, it was submitted, were inconsistent with the applicable principles. Particular reliance was placed on his Honour's references to the evidence which suggested that the injuries may have been caused by a fall down the stairs. This was the alternative hypothesis consistent with innocence upon which the respondent relied at trial. 19 The issue for determination on Ground 2 is whether the ground involves a mixed question of law and fact. 20 The difference between the statutory formulation considered in Williams v The Queen (1986) 161 CLR 278 and s 107(2), presently under consideration, was identified in R v JS at [81] as set out above. The formulation in Williams was "on a question of law alone". Authorities in other statutory contexts indicate that this is narrower than a formulation with words such as "involving a question of law". (See Brown v Repatriation Commission (1985) 7 FCR 302 at 303-304; XCO Pty Ltd v Commissioner of Taxation (Cth) (1971) 124 CLR 343 at 348; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [47]-[55]; HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292 at [84]-[85].) 21 As noted above, the Crown accepted that the different formulation in s 107(2) has the same effect as that which the High Court reached in Williams that is, that no appeal is permitted on a mixed question of law and fact. There is, indeed, Privy Council authority to that effect with respect to a statute which employed the same formulation as s 107(2). (Smith v The Queen [2000] 1 WLR 1644.) However, the statute in that case distinguished in express terms between the formulation "ground of appeal involving a question of law alone" and "ground of appeal which involves … a question of mixed law and fact". 22 The same form of words does not necessarily have the same meaning in a different statute. The context is always important in statutory interpretation. (See HIA v Kostas supra at [21].) The Crimes (Appeal and Review) Act does draw the same distinction in s 53; however, that is concerned with a distinct regime of appeals from the Local Court to the Supreme Court. 23 This Court has applied the same reasoning as in Smith to the formulation "any ground which involves a question of law alone" in s 5(1) of the Criminal Appeal Act, permitting an appeal as of right. However, the immediate context in s 5(1)(b), like that in Smith, expressly refers to an appeal on a question of mixed law and fact which requires leave. (See Krishna v DPP (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 at [44]-[46]; Alramadan v DPP (NSW) [2007] NSWCCA 322 at [68]-[69]; Carlton v The Queen [2008] NSWCCA 244 at [10]; Rasic v The Queen at [12].) 24 There is no reason to doubt that, in the context of a statute which overturns a fundamental principle of the criminal law like the principle against double jeopardy, the appeal should be similarly confined. Such expansiveness as may have been suggested by use of the word "involves" is counterbalanced by the word "alone". The context of permitting an appeal from an acquittal is determinative. 25 The Crown concession was properly made and an appeal does not lie under s 107(2) on a mixed question of fact and law. 26 In my opinion, Ground 2 involves a mixed question of fact and law. Even if his Honour erred in applying the correctly stated principle, that process necessarily encompassed an assessment of the facts. The process of 'applying' a legal principle to the facts of a case involves a mixed question of fact and law which, the Crown accepts, is not within s 107(2). 27 The position with respect to Ground 3 is, however, different. As reformulated at [6] above, the ground identifies, most clearly by the word "necessary", a legal requirement of any Crown case of homicide. That, in my opinion, involves "a question of law alone". This states a legal proposition which is a distinct and separate step in the reasoning process. In the same way as the interpretation of a statutory provision considered in R v JS. This legal proposition is logically anterior to its application to the facts of a particular case.

Factual Background 28 The respondent was charged with the murder of his partner. They had been in a relationship for about three years. 29 His Honour summarised the facts, "taking the Crown case at its highest", as follows (at [8]): "(a) [PL] and the deceased were joint owners of their home worth about $600,000; (b) They lived together since 2004, the property having been purchased from the assets of the deceased; (c) Each of [PL] and the deceased had partners prior to each other; (d) On Good Friday, 6 April 2007, [PL] and the deceased had an argument, the subject matter of which is, according to the Crown, irrelevant, but concerned "a guy doing tiles", after which [PL] stormed off; (e) At some time on Saturday morning, 7 April 2007, the couple engaged in consensual sexual intercourse; (f) During the course of the morning, [PL] made carrot juice for the deceased and/or himself; (g) While [PL] was making the carrot juice, the deceased "kept at him", they had a fight; (h) Between 8.15am and 8.30am on 7 April 2007, there was a sound from the house, heard by the neighbour, like a shelf falling, pots clanging and lids rolling around the floor; (i) The neighbour then heard the deceased singing (but I will assume, notwithstanding the evidence, a scream), there was then silence (said to be for about 10 minutes) and then the sound of [PL] wailing; (j) At 9.00am a witness rang the home and [PL] was hysterical; (k) When the first persons arrived at the scene, at about 9.15am, [PL] was seen wailing or crying hysterically, cradling the deceased's head, rocking back and forward, his arms extremely tightly bound around the deceased's neck and head. [PL] was in a state of total distress and was, as stated, totally hysterical; (l) The deceased's heart had stopped by the time ambulance officers arrived. Resuscitation was unsuccessfully attempted." 30 His Honour also referred to fact there was a 57 minute gap between one witness hearing "crashing noises like a shelf falling" at 9.12am and the respondent calling 000: [9]. In that call, the respondent said, "I have a fight with my friend and my friend dead". The Crown relied on this significant time gap. 31 The Crown relied on evidence that the relationship between the men had been deteriorating and that the deceased had expressed his intention to friends to end his relationship with the respondent. Furthermore, there is suggestion that the respondent would benefit financially from the deceased's death. (The terrace in which they lived had been purchased by the deceased, but registered in both names.) 32 The Crown also relied on the fact that the respondent admitted on four occasions that he and the deceased were fighting. These occasions were the call to 000, to a constable at the scene, to his friend, and when interviewed at the police station. It also relied on the fact that on these occasions the respondent never provided an explanation for the deceased's death. 33 There was some evidence of a fight in the house. The respondent was making carrot juice at some point in the morning, and the metal bowl of the juicer was found, apparently blood stained, near the deceased. This was a possible weapon. The deceased's DNA was found on the spout of the juice extractor. There was evidence that the juicer bowl had been thrown at the wall in the kitchen, above the doorway, causing some damage. There were fine blood sprays around the staircase area and some blood smudges, although these may have been left by the paramedics. A detective at the scene thought he noticed blood on the handle of a cleaning brush in the kitchen. 34 The Crown also relied on evidence inconsistent with an alternative explanation that the deceased fell down the stairs, such as the fact that the deceased was still wearing slip-on backless slippers, which would be highly unlikely after such a fall (although it is possible that the respondent put them back on the deceased). The Crown submitted that the sounds heard by the neighbour were also inconsistent with that explanation and supported the hypothesis that there was a physical altercation. The medical evidence demonstrates that sustaining the particular injuries through a fall alone would be unusual. 35 The autopsy and forensic evidence was unable to definitely state the cause of death. It was not death by natural causes. There is medical consensus that death was caused by a blunt force injury/injuries to the head and/or neck area, perhaps a combination of the two. There was no consensus as to what may have caused those injuries. 36 The deceased had some lesions, scratches and bruises on his body (particularly the upper chest, neck and chin areas) each of which are partly or possibly compatible with the following propositions: He was struck on the chin, and fell and hit his head on the floor. A metal bowl may have caused the wound to the chin. A metal bowl may have been used to create the blunt force injury to the deceased's head. He tripped and fell down stairs (but must have contacted protruding objects on the staircase to cause the injury pattern). Some physical struggle occurred (the deceased had arm, hand and knuckle injuries); the respondent when inspected at the police station had evidence of a "chinese burn" on an arm. One of these events caused the deceased to have a cardiac arrest (the autopsy showed poor health). Manual strangulation was attempted, or significant force applied to his neck (though there was a lack of some physical indicators usually, but not always, associated with strangulation). A combination of the above. 37 His Honour's summary of the medical evidence commenced with the statement: "The medical evidence is at best ambivalent" (at [15]). His Honour said: "[16] Dr Rodriguez testified to brain injuries suffered by the deceased, caused by blunt force injury, being a knock to the head either by the application of force to the head by a blunt object or the head hitting a hard object, e.g. a stair or a wall, etc. [17] Dr Rodriguez accepted that the brain injuries, of themselves, would not necessarily cause death and 'there is some doubt as to exactly why this person died at the time he did', but considers there is a direct link to the blunt force injuries ... . If, he says, the injuries were to have caused severe diffuse axonal injury (DAI), then the deceased could not have cried out or sung. Further, Dr Rodriguez agrees 'that the exact cause and mechanism of Mr Guzzetti's death cannot be stated beyond reasonable medical doubt'. Dr Rodriguez was unable to say whether the deceased died from brain injuries. [18] The blunt force injuries to the head could, Dr Rodriguez says, be caused by falling down some stairs. Dr Rodriguez deferred to Dr Botterill as to cause of death because he, Dr Rodriguez, was looking only at the brain and no other part of the body, and he may, in some cases, in determining cause of death, by a process of eliminating other causes, arrive at a conclusion that a seemingly minor, otherwise non-fatal injury, was the cause ... . [19] I turn then to the evidence of Dr Botterill. He prepared a 13-page report which incorporated Dr Rodriguez's findings. Dr Botterill concluded that the 'direct cause of injury was blunt force head and neck injury'. He could not be certain whether it was a combination of the two or one or the other. 'There was blunt force head injury and blunt force neck injury, both of which have the potential to result in death … [but he] … can't say the relative contribution of both [sic: read each] but … [believed] … that it's most likely that both together have resulted in the death' ... . According to Dr Botterill's report, the deceased was 71 years of age with no past medical history." 38 His Honour then set out the injuries observable on the deceased and added: "[22] Dr Botterill concluded: 'Although any one of the individual injuries might be associated with a simple fall, the extent of distribution of the injuries is more in keeping with multiple blunt force injuries. It is possible that the neck bruising and chest injuries are related to application of force to the neck but discrete ligature marks or eyeball haemorrhages were not identified.' … [23] An explanation of the foregoing was given by Dr Botterill. A simple fall was explained as a fall in which the head was hit once. A complex fall (i.e. when the head was hit more than once) would include a fall down stairs. Strangulation usually causes burst blood vessels in the eyelids and eyeballs, which were not present. It is possible to have strangulation without them. Likewise, there was no fracture of the hyoid bone (which sits above the langio cartilages). Nor was there damage to the langio cartilages, to which damage occurs even more often in a strangulation. [24] The head injuries are not inconsistent with being hit over the head with a blunt instrument. They are also not inconsistent with being hit on the chin by the juicer component, falling back and hitting the head. The head injuries are also not inconsistent with falling down the stairs. [25] The bruising to the neck is not inconsistent with strangulation. Although, given the absence of petechial haemorrhages (the eyelids and eyeballs) and the absence of damage or fracture to the langio cartilages or the hyoid bone, it is an unusual strangulation, if it be one. It may be consistent with pressure on the carotid artery, at the battery point, causing the heart to slow and/or stop. The bruising to the neck is also not inconsistent with falling down stairs if there were protruding items into or onto which the deceased fell. However, as to the last-mentioned possibility, the injuries are remarkably widespread. Innocent possibilities would also include contact with the metal juice extractor, either at the bottom of the stairs or because the deceased was holding it and came in contact with it on the way down the stairs or at the bottom of the stairs. [26] There are two extracts of Dr Botterill's examination-in-chief that bear repeating. … [S]peaking of the neck injury, Dr Botterill says: 'These are in keeping with multiple blunt force contacts but I can't say with certainty what the exact nature of those contacts were. There are a number of possibilities. It is possible that something such as the application of force from fingertips may result in that bruising. … It is also possible that other types of blunt force contacts, bumping into various structures, might result in this distribution, although it is remarkably widespread. Blows to that area with some other object may result in these changes. It is also conceivable that some of these changes may be related to attempts at resuscitation … in a very inexpert way … although again that is completely the wrong place to be doing resuscitation. I think they are the range of explanations but the truth is I can't say which of those particular possibilities is the explanation for those bruises and surface marks '. (Emphasis added.)" 39 His Honour then referred to the evidence of Professor Hilton, called on the part of the respondent, but which, his Honour said, he would only rely upon insofar as such evidence could assist the Crown. His Honour said (at [30]): "Professor Hilton had a different opinion on the cause of death and on the mechanism for death, or, more accurately, questioned the capacity to come to any conclusion beyond reasonable medical doubt. This material I do not consider in this application." 40 As it plays a role in his Honour's ultimate conclusion, I note that the phrase "mechanism of death" was adopted from Professor Hilton's evidence. In cross-examination, he said: "The exact mechanism by which he died is obscure". He was affirming the contents of a report he had written. 41 That report was put to the Crown expert neuropathologist, Dr Michael Rodriguez: "Q Professor Hilton continued, he says, 'Therefore, there is some doubt as to the exact mechanism of death and its direct link to blunt force head injury' do you agree with that statement? A In part. 'Exact mechanism', yes, I agree there is some doubt as to exactly why this person died at the time he did. I think there's certainly evidence there's a direct link to the blunt force injuries that this person sustained." 42 Justice Rothman set out other evidence by Professor Hilton: "[31] However, other material was adduced, in a most effective cross-examination of Professor Hilton, as to the cause of the injuries to the neck, in particular. Indeed, the evidence of Professor Hilton on the cause of the injury is the best evidence the Crown has in the case. … [T]he following exchange between the Crown and Professor Hilton occurs. The Crown [referring to nine curvilinear abraded bruises to the chest and/or neck] asks Professor Hilton: 'Q You agree that's possibly signs of a struggle? A: I think they're highly suggestive of there being a struggle. [Is it] … exclusive to that, no, but the distribution and number of them, yes, there could. Q: Before we were talking about manual strangulation and manual strangulation still plays a significant role in this matter; would you agree with that? A: Yes. Q: … manual strangulation requires the hands to go up around the neck area, would you agree with that? A: Manual strangulation implies the application of force to the neck by one or two hands, or, perhaps, in fact, … more … Q: So those marks on Mr Guzzetti's chest are consistent, would you agree, with signs of a struggle coincidental with manual strangulation? A: Coincidental or associated with, yes.' [32] While this evidence seems, at first glance, sufficient of itself to allow the matter to go to the jury, it must be understood in the context of the whole of the evidence. First, 'consistent with' is used to mean 'not inconsistent with'. Second, Professor Hilton comes to the conclusion, also in cross-examination … : 'I would think the upper trunk, the chest type injuries and the neck type injuries, would be unusual in a fall down the stairs unless that part of the body hits something that was protruding in the course of the said fall.' The staircase in question had a balustrade (itself described by Professor Hilton as a complex surface) with protruding bollards." 43 I should note that there was also evidence that the wall on the side of the staircase had "jagged bricks", so that it was not only the protruding bollards that could have inflicted some of the deceased's injuries in the case of a fall. 44 His Honour summarised the factual basis of the Crown case (at [34]): "The Crown relies on what it describes as inferences available from the medical and scientific evidence (already discussed) (namely, the injuries, DNA and blood splattering), the timeline (in particular the alleged 57 minute gap), the tension in the relationship, the lack of any other person with opportunity, the noises heard by the neighbour (and the silence thereafter), together with the financial gain that, it is said, may be motive for the crime. Essentially, the Crown relies upon the facts, set out … above, to allow the drawing of an inference that, from all the possibilities for the means by which these injuries have been caused, the jury should (or may) draw the inference that the deceased was strangled and/or hit over the head (either with the juice extractor component or otherwise) by [PL]. It is unclear in which order this is said to have occurred." 45 The summary of the most pertinent facts is the basis of a circumstantial case. In such a case, the facts are not to be assessed in a piecemeal fashion, as affirmed most recently in The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48].

The Cause of Death Issue 46 The legal proposition at the heart of the Crown case on Ground 3 is that it is not necessary to establish a precise act causing death in order to establish either murder or manslaughter. The respondent did not challenge the force of the authorities upon which the Crown relied in this respect. 47 The clearest statement in support of the Crown's legal proposition is perhaps that of Ackner LJ in Attorney General's Reference (No 4 of 1980) [1981] 1 WLR 705 at 710: " … [T]his reference raises a single and simple question, viz: if an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The answer to that question is 'No, it is not necessary to found a conviction to prove which act caused the death.' No authority is required to justify this answer, which is clear beyond argument … ." 48 That was a case in which the Crown could not prove which of two acts by the accused caused death - although one of them did so. (See also R v McKinnon [1980] 2 NZLR 31.) To similar effect are authorities which indicate that it is not necessary to identify a particular act which caused death where an accused had committed a series of acts, such as a long course of beating, where the fatal kick or blow cannot be identified. (See, eg, R v Ryder [1995] 2 NZLR 271.) 49 As Brennan J said in Royall v The Queen (1990) 172 CLR 378 at 404-405: "In most cases of alleged murder, a precise identification of the act which causes death is attempted in order to furnish a foundation for the inference of the mental state with which that act was done. But where the accused has engaged in a course of violent conduct after which the victim does something that directly causes his or her death, it is not essential in point of law to identify which act or series of acts in the course of that conduct caused the victim to take the final fatal step provided the jury be satisfied on the whole of the evidence that some or all of those acts caused the death and was accompanied by one of the mental states prescribed by s 18(1)(a)." 50 There have been numerous cases, generally based on circumstantial evidence, where a particular act causing death could not be identified: Where no body was found. (R v Onufrejczyk [1955] 1 QB 388; R v Horry [1952] NZLR 111; Weissensteiner v The Queen (1993) 178 CLR 217; Burrell v The Queen [2007] NSWCCA 65; Burrell v The Queen [2009] NSWCCA 193.) Where a body was in such a state of decomposition that a cause of death could not be determined. ( R v Robertson (1913) 9 Cr App R 189; Keir v The Queen [2007] NSWCCA 149; Kaliyanda v The Queen [2007] NSWCCA 300.) Where the Crown case was that the accused either committed the act causing death or was an accessory. (R v Swindall (1864) 2 Car & K 230; 175 ER 95; R v Thatcher [1987] 1 SCR 652; R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101.) Where a single cause of death could not be identified. ( R v Butcher [1986] VR 43 at 55-56; R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [26], [61], [66].) 51 In cases of this character an issue of jury unanimity will often arise. However, that line of authority is not pertinent to the present appeal. (See, eg, R v Leivers and Ballinger [1999] 1 Qd R 649; R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 at [29]-[65]; WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66 at [77]-[92]; R v Spathis [2001] NSWCCA 476 esp at [226]-[274]; R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 esp at [45]-[57].) 52 In my opinion, if his Honour proceeded on the basis that the Crown had to establish the particular act of the accused which caused death, then his Honour erred and did so with respect to a question of law alone.

Conclusions of Rothman J 53 His Honour came to the following conclusions relevant to Ground 3: "[38] Ultimately, the Crown case on cause of death and the means by which it was achieved relies upon the proposition that, "general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved", namely, the deceased being hit with the juice extractor, falling back and hitting his head causing the head injuries and some attempt at strangulation, before or after this occurrence, causing the neck injuries. [39] In the context of a murder trial, the Crown must prove beyond reasonable doubt: that an act of the accused caused death; that the act was deliberate; and that the accused had an intention to kill, an intention to cause grievous bodily harm or a reckless indifference to human life. [40] In this case, the mechanism, being, in this context, the act that caused the injuries causing death, has to be speculative and, as a consequence, renders a finding of a deliberate act by the accused more speculative. A fortiori , it renders the necessary state of mind for murder, most speculative, and not a matter on which the jury is entitled to draw an inference. The jury is not entitled to conjecture or fill the gaps that, without any criticism of the Crown or the police, necessarily arise in this matter. [41] Further, given the availability on a charge of murder to the alternative of manslaughter, it is necessary to deal with that aspect. Much of the previous analysis, and all of the facts, are relevant in this regard. [42] The relevant difference between murder and manslaughter is, in this case, the state of mind of the perpetrator. In manslaughter it is unnecessary to show an intention to kill or inflict grievous bodily harm. However, it is necessary, relevantly, for the Crown to show an unlawful and dangerous act. Since the act causing death is not proved beyond a reasonable doubt, it is mere conjecture to suggest that the accused committed an unlawful and dangerous act, i.e. an act that a reasonable person would understand had an appreciable risk of serious injury: Wilson v R [1992] HCA 31; (1992) 174 CLR 313 at 333. [43] In the circumstances, I propose to direct the jury to return a verdict of not guilty to murder and, also, not guilty to manslaughter." 54 As I have noted above, the Crown contends that his Honour erred, with particular reference to [40] and [42] of the passage just set out, by proceeding on the basis that it was necessary to identify a particular act of the accused which caused the injuries that led to death. 55 The principal contention on the part of the respondent is that his Honour did not proceed on the false legal basis for which the Crown contends. His Honour's reasons should be understood as stating that, having regard to the whole of the facts - taken at their highest - guilt could not be established unless the Crown could rely on medical evidence which established the mechanism of death. This, the respondent submitted, was an issue of mixed fact and law and this Court has no jurisdiction on such a matter. If the respondent's characterisation of his Honour's reasons is correct, that conclusion does follow. 56 It is necessary to focus on the critical words in [40] and [42]. 57 At [40] his Honour characterised the "mechanism" that caused the death as "speculative", with the consequence that a finding of "a deliberate act" was "more speculative" and that, therefore, a finding of mens rea was "most speculative". His Honour's conclusion is expressed in terms of denying any 'entitlement' on the part of the jury "to conjecture or fill the gaps". 58 With respect to [42] his Honour said that, because "the act causing death is not proved beyond a reasonable doubt", it was "mere conjecture" to suggest that the accused "committed an unlawful and dangerous act". 59 Each of these references in [40] and [42] appear to me to turn on the proposition in [39] to the effect that the Crown has to prove that "an act of the accused caused death". This in turn is a reference back to the Crown case "on cause of death" identified in [38]. The matters identified in [38] are directly solely to the alleged act by the respondent of hitting the deceased with a juice extractor and an attempt at strangulation. 60 His Honour was applying s 18(1)(a) of the Crimes Act 1900 which, relevantly, provides: "Murder shall be taken to have been committed where the act of the accused … causing the death charged, was done ... with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm … ." 61 The structure of [40] contains some ambiguity. It is possible to read it as a conclusion with respect only to the final "most speculative" observation - in effect a conclusion that there was no evidence, taking the Crown's case at is highest, capable of establishing the mens rea element of the offence. The Crown did not rely on a defect in this final step as a "question of law alone". 62 The issue to be determined is whether, as the Crown submits, his Honour's conclusion was based on the legal proposition that the Crown had establish the act which caused the injuries leading to death, on the one hand, or whether it was based on the conclusion that, in the absence of such evidence, and having regard to the whole of the facts, the Crown case taken at its highest, could not be established. 63 The last sentence of [40] states the jury is not entitled to "conjecture or fill the gaps" which, his Honour said, "necessarily arise in this matter". His Honour had in the preceding two sentences identified three "gaps" with respect to the causal "act", the 'deliberateness' of that act and the state of mind. The gaps were characterised in a crescendo from a base to comparative to superlative - "speculative", "more speculative", "most speculative". 64 His Honour's reference to "gaps that … necessarily arise" does not, in terms, acknowledge the role of inference in the process of assessment required to be undertaken by the tribunal of fact in a circumstantial case. Such a process is not entirely removed from what may, by an external observer, be characterised as 'speculation' or 'conjecture'. A jury is entitled to draw inferences and, in that manner, to 'fill gaps' in the evidence. 65 His Honour concluded at [40], albeit expressly only with respect to the mens rea element, that the jury was "not … entitled to draw an inference". The language of 'entitlement', like the use in the next sentence of the word 'necessarily' with respect to the "gaps that … arise", indicate that his Honour was concluding that it was not open to the jury to draw that inference. It is the linkage 'a fortiori' with the first sentence of [40] that the matter to which his Honour had regard was, and it appears to me was only, "the mechanism … causing death". 66 "[T]he mechanism" to which his Honour referred in the opening sentence of [40], being terminology he had adopted from one expert report (see at [37], [39]-[40] above), was clearly a reference to the medical evidence about the difficulty of identifying the act which caused the injuries, to which evidence his Honour referred at [15] as "at best ambivalent". (See [37] above.) 67 There is, in the passage from [38]-[42], no indication that any other fact was regarded by his Honour as pertinent. It does appear that his Honour treated the need to establish the act that caused death as an essential requirement to prove homicide. 68 At [44] above, I have set out [34] of his Honour's judgment which summarises the Crown's circumstantial case. By expressly giving determinative significance to the inability to establish a particular cause of death, Rothman J did not pay regard to the other facts to which the jury could have had regard on the issue of both the actus reus and mens rea of the offence charged: the evidence of a fight, the absence of any other person on the premises, the time delay before contacting 000. 69 This conclusion is reinforced by the terminology in [42] that a manslaughter case was "mere conjecture" because "the act causing death is not proved beyond a reasonable doubt". His Honour did not say that it was not open to the jury to conclude, in the light of all of the circumstances, that an essential element of the offence charged - "the act of the accused … causing the death" - had been proved beyond reasonable doubt. His Honour's terminology that the act "is not proved beyond reasonable doubt" directs attention, in the light of the analysis at [38]-[40], only to the medical evidence on the "mechanism" of death. 70 Although my mind has fluctuated in the respect, ultimately I am satisfied that the conclusions in [40] and [42] are based on an assumption that, as a matter of law, the Crown had to identify the act by the accused that caused the death. 71 As I have indicated, the respondent submits that his Honour should be understood as saying that having regard to all of the evidence, this was such a weak case on causation, that he concluded that, in this case, the act causing death had to be established beyond reasonable doubt. However, his Honour did not say that. Nor did he refer to the broader factual matrix in any way in the crucial parts of his reasons. 72 Accordingly, in my opinion, the Crown's submission that his Honour erred on a question of law alone should be accepted. This proposition of law was a discrete starting point for his subsequent analysis. It was a separate and distinct proposition of law which his Honour proceeded to apply to the facts of the case. Whilst that application involved questions of fact, the starting point did not. 73 Ground 3 is made out. The Court must determine what, if any orders, should be made, under s 107(5) and s 107(6) of the Act, which I have set out at [3] above.

Orders 74 Once the jurisdiction of the Court has been attracted under s 107(2) and the Court has upheld the ground of appeal, the Court must decide whether to quash the acquittal pursuant to s 107(5) and whether it should exercise the power to "order a new trial" in a "manner" to be specified pursuant to s 107(6). 75 Section 107 applies in three circumstances; a verdict by direction, trial by judge alone and an exercise of summary jurisdiction in proceedings to which the Crown was a party. These three circumstances share a common characteristic: that the proceedings have been disposed of by a judge without a jury decision. 76 Part 8 of the Crimes (Appeal and Review) Act applies to a number of other situations including when "fresh and compelling evidence" has arisen after an acquittal for an offence punishable by imprisonment for life (s 100) and in the case of a "tainted acquittal", within the meaning of s 103 of the Act, for an offence punishable by imprisonment for life or by a period of 15 years or more (s 101). 77 The powers of the Court in each of these other two cases within Pt 8 are expressed in different terms to s 107(6). Each of s 100(1)(b) and s 101(1)(b) provide: "The Court of Criminal Appeal may … order an acquitted person to be retried … if satisfied that: … (b) in all the circumstances it is in the interests of justice for the order to be made." 78 Furthermore s 104 provides: "(1) This section applies for the purpose of determining under this Division whether it is in the interests of justice for an order to be made for the retrial of an acquitted person. (2) It is not in the interests of justice to make an order for the retrial of an acquitted person unless the Court of Criminal Appeal is satisfied that a fair retrial is likely in the circumstances. (3) The Court is to have regard in particular to: (a) the length of time since the acquitted person allegedly committed the offence, and (b) whether any police officer or prosecutor has failed to act with reasonable diligence or expedition in connection with the application for the retrial of the acquitted person." 79 It is pertinent to note, with respect to s 107(6), that the discretion is not confined, or rather directed, in this way. 80 As noted above there is authority that a judge proposing to direct a verdict of acquittal should not do so on the basis that it appears to him that a conviction would be unreasonable, or as it used to be expressed, "unsafe and unsatisfactory". (See R v R; Doney.) The issue that has arisen, for the first time with respect to s 107, is whether the discretions found within the words "may … quash the acquittal" and "may order a new trial" are relevantly unconfined. The kinds of considerations that are taken into account on appeal, as to whether or not a conviction was 'reasonable', within the meaning of s 6 of the Criminal Appeal Act, may be considerations that could inform the exercise of such discretions. 81 If this Court is satisfied, on the evidence presented by the Crown at the trial, that an appeal would be allowed on the basis that a conviction was unreasonable, should the Court exercise its discretion against quashing the acquittal or ordering a new trial? Furthermore, in the present case one of the options available to the Court, if that be the proper interpretation of the power, is to determine whether any new trial should be limited to the charge of manslaughter. 82 Although the only charge on the indictment was murder, his Honour did direct a verdict of acquittal on both murder and manslaughter. No issue was raised in this respect. In form it is open to this Court to quash one or both of those verdicts. 83 It is well established that the word "may" appearing in some legal texts must be understood as "must". With respect to a legislative scheme that overturns a long established fundamental principle of the criminal law, the word "may" cannot be so construed. The double jeopardy principle is of that character. (Cf R v Snow (1915) 20 CLR 315 esp at 322, 362; R v Cheng [1999] NSWCCA 373; (1999) 48 NSWLR 616 at [32]-[34]; R v JS supra at [26]-[32].) 84 The significance of this change is an important part of the statutory context in which the powers conferred by s 107(5) and (6) must be construed. Even if there had not been a directed verdict on both murder and manslaughter, in my opinion, it would be open to the Court, pursuant to s 107(6), to order a new trial limited to manslaughter, for analogous reasons to those adopted on a different legislative scheme in AJS v The Queen [2007] HCA 27; (2008) 235 CLR 505 esp at [14]-[17]. 85 The terminology of s 107(6) is clearly drawn from s 8(1) of the Criminal Appeal Act. In R v Murrell [2001] NSWCCA 179; (2001) 123 A Crim R 54, this Court considered whether, pursuant to s 8(1) of that Act, it should order a new trial limited to manslaughter, where the Court believed (at [33]) that the Crown case could not sustain a charge of murder. In the event, the Court did not do so for reasons which suggest that what was involved was the exercise of the discretion (using words such as "prudent" and "preferable" at [42]-[43]). The High Court left open the authority of Murrell in AJS at [20]-[21]. 86 There are a number of precedents for a court exercising a power to order a new trial for a lesser charge in exercise of a power equivalent to s 8(1) of the Criminal Appeal Act. (See, eg, Kelly v The King (1923) 32 CLR 509; R v Miller [1951] VLR 346; The Queen v Hanias (1976) 14 SASR 137.) However, those sections were part of a legislative scheme which authorised the Court of Criminal Appeal to order a substituted verdict, such as s 7 of the Criminal Appeal Act. There is no such express provision in Pt 8 of the Crimes (Appeal and Review) Act. 87 Notwithstanding this difference in the statutory framework, the abrogation of the double jeopardy principle is a powerful consideration indicating that the Court was intended to be able to exercise its discretionary powers so as to minimise the injustice associated with a new trial after an acquittal. (See Vallance v The Queen (1961) 108 CLR 56 at 62; R v Turner [2001] WASCA 344; (2001) 25 WAR 258 at [24]; R v Hutchinson [2003] WASCA 323; (2003) 144 A Crim R 28 at [14]-[15], [43].) 88 In a passage frequently cited by Australian Courts, Black J said in Green v United States, 355 US 184 at 187-188 (1957): "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." 89 Accordingly, there are circumstances in which the courts will order a stay of a second prosecution. (See, eg, Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [116]-[118]). 90 In my opinion, in the context of an appeal against an acquittal by directed verdict, this Court should exercise its discretion not to order a new trial if it is satisfied that a conviction would be overturned as unreasonable, or on any other basis which would not result in a new trial on a successful conviction appeal. 91 Although, on the authority of R v R, the trial judge cannot direct a verdict on that basis, the principle of double jeopardy, notwithstanding its partial abrogation, remains a fundamental principle of our criminal law. It should be given effect in the manner I have indicated. 92 The Crown relied, on the exercise of the discretion, on the principle that the Court should not constrain the prosecutorial discretion. In Maxwell v The Queen (1995-1996) 184 CLR 501, Dawson and McHugh JJ said at 512: "Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial." 93 If this Court formed the opinion that an appeal from a new trial would be upheld, then that new trial would constitute a relevant abuse of process. 94 The Crown case for the mens rea element of murder is exceptionally weak. No aspect of the medical or scientific evidence supports anything like an intent to kill. The suggested murder weapon - the metal bowl of a juice extractor - takes this element no further. There was evidence of an argument and of a physical fight. The evidence of an attempt at strangulation, which Rothman J emphasised, was potentially the best evidence on intent, even though that was not the cause of death. However, that evidence was equivocal. 95 The suggested motives - financial advantage and deterioration of the relationship - are insufficient without objective evidence of the events, which go no higher than a fight and weak evidence of an attempt at strangulation. 96 In my opinion, if the respondent were convicted of murder on a new trial, that conviction would be overturned as unreasonable on appeal. Accordingly, the orders I propose are: 1 Affirm the acquittal on the charge of murder. 2 Quash the verdict of acquittal on the charge of manslaughter. 3 Order a new trial limited to a charge of manslaughter. 97 McCLELLAN CJ at CL: I agree with Spigelman CJ. 98 R A HULME J: I agree with Spigelman CJ. **********

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