Regina v Blanks

(B) Overview

1. The accused and the deceased as at 15 January 2012 had been in a relationship for about six months. In the weeks preceding the deceased's death, they had been living an itinerant lifestyle in a tent at Wondabyne which is located in a relatively remote area of the Brisbane Waters National Park. That area is only accessible by boat, train or via the Great North Walk. The accused and the deceased had set up a camp approximately 20m from the nearby railway station.
2. The Crown alleges that on 15 January 2012, the accused was cutting up vegetables for an evening meal when the deceased entered the tent and an argument ensued. The Crown case is that when the accused threatened the deceased at this time she was holding a knife and lashed out at him in an upwards motion from her seated position, stabbing him in the upper left thigh.
3. The medical evidence established that the deceased suffered a stab wound which severed the femoral artery and vein and the deceased bled to death.

(C) The Elements of the Offence

1. The Crown has the onus of establishing beyond reasonable doubt the essential elements of the offence of murder. The elements of that offence are: 1. That the victim died; 2. That the act or omission of the accused caused the death of the victim; 3. That the act of the accused was without lawful cause or excuse; and 4. The act or omission causing death was done by the accused with the intention to kill or do grievous bodily harm to the victim.
2. It is fundamental that the accused has the benefit of the presumption of innocence, that is to say, she is to be presumed to be innocent of the charge brought against her or any available alternative charge unless and until the Crown has discharged its onus of proof as I have stated.
3. Ms Chrissa Loukas SC who appeared on behalf of the accused submitted that, on the evidence, the Crown has not proven the offence of murder beyond reasonable doubt. The accused's account to police was that as the deceased walked towards the tent, he tripped and fell onto a log where she had rested a knife which was facing upwards, on her side of the log.
4. The evidence in the Crown case consisted of both documentary and oral evidence.
5. The Crown tendered a folder of documents entitled "Crown Materials" which was marked as Exhibit A. The index to the tender volume (Exhibit A) provides a witness list in which the names of 24 witnesses are set out, identifying notes, crime scene photographs and written statements of the witnesses. The statement of witness number 5, Detective Senior Constable Melanie Leaity, had three attachments, including an ERISP transcript with the accused, a summary of the accused's diary and a summary of 'help point' and CCTV records.
6. A copy of the report on autopsy by Dr Beer dated 11 April 2012, was contained within Exhibit A at Tab 22.
7. Exhibit A also contains copies of the Dr Macintosh's Biomechanical Reports regarding the death of Shayne MacDonald dated 17 January 2013 and 2 August 2013. The First Report is at Tab 21A of Exhibit A. The Second Report is at Tab 24B. Photographs of the log and knife are at Tab 24C of Exhibit A.

(D) The Evidence of Mr MacRitchie and Mr Jones

1. The Crown relied upon the statements and oral evidence of Mr Ben MacRitchie (Exhibit A, Tab 15) and his friend Mr Chris Jones (Exhibit A, Tab 14), both having travelled on the Sunday, 15 January 2012 together on a fishing trip to the Wondabyne area.

(i) Evidence of Mr MacRitchie

1. Mr MacRitchie in his statement, stated that he and Mr Jones arrived at Wondabyne station at approximately 12:30pm on 15 January 2012. They walked straight to the wharf which is only 15m from the train platform. He said that they walked along the wharf and he saw a lady sitting down at the end of the walkway. He said that she did not appear to be in a happy mood as she didn't talk to them. Within a minute of them arriving, she got up and walked back to the other side of the railway lines near the bush.
2. Sometime afterwards he heard a woman, later identified as the accused, swearing at her male companion (the deceased). He said she said "Fuck off" as she was yelling at him.
3. Mr MacRitchie and Mr Jones continued fishing for at least an hour until it started to rain and they walked to a shelter on the train platform. When standing there, Mr MacRitchie noticed the accused sitting on the ground next to a tank which looked like a water tank.
4. Mr MacRitchie said that soon after he walked through a path in the bush behind them to go to the toilet. He said that he came across a campsite which was set up only 10-20m into the bush. He came across the deceased sitting on the ground underneath a tarp at the campsite. He said he looked in his mid-30s. There were a few clothes lying around. He said to him, "Hello. It's lovely weather isn't it." The male simply replied "No, it isn't."
5. Mr MacRitchie did not stop but kept walking another 10m or so to the toilet in the bush. A few moments later he returned and passed the campsite on the same track. He said he saw the deceased still sitting at the campsite. He did not say anything to him and continued walking to the train platform.
6. After the rain eased off, Mr MacRitchie and Mr Jones resumed fishing. Mr MacRitchie said that while they were on the platform he again heard the accused yelling. He said it sounded like she was having an argument with the deceased, whom he had seen at the campsite. He said that she was doing most of the yelling. He could not hear everything she said, but definitely heard her say "Putrid dog". He also heard her yelling "Fuck" a lot. He could hear the male voice talking with her. That voice seemed a lot quieter than hers and was not yelling. He did hear him at one point say "fuck off", but didn't hear what else he said. He said the yelling seemed like it was going on most of the afternoon. The volume would go up and then it would go quiet again. He did not see where they were as he was trying not to pay attention. He said he knew it was the same female that he had seen sitting on the pontoon and the male at the campsite as there was no one else around.
7. The rain started again and Mr MacRitchie and Mr Jones took shelter on the railway platform.
8. He remembers that at about that time, the accused was talking on the emergency phone on the eastern side of the railway platform and he heard her say whilst on the phone, "He's cut himself". He did not see where the accused went after this.
9. He thought it was around 4:00pm when the rain started to ease off and he and Mr Jones decided to get some oysters. A short time later a male voice was heard talking over the emergency phone asking, "Is anyone there? How far away from the train station is the injured person?".
10. Mr MacRitchie then started talking to the male on the emergency phone and told him that the injured person was about 10m away. He said that as he was talking he saw the accused running down from the campsite in the bush and she said, "He's not moving".
11. Mr MacRitchie ran with the accused back to the campsite. He immediately saw the deceased lying on his back on the ground near the tent. His head was raised up on a bag. He looked very pale and his lips looked blue. He said to the accused, "What happened?". He said that she said, "He fell over a log onto a knife".
12. Mr MacRitchie said that he then saw a round log on the ground lying in the dirt pathway. It was only a metre from the lower left side of the body. The log was about a foot long and 8 inches in diameter. The log appeared to be right in the middle of the pathway. He said it was not on the pathway when he walked through to go to the toilet earlier.
13. He noticed a lot of blood and there was a white cloth on the deceased's left thigh, the size of a tea towel.
14. Mr MacRitchie started doing chest compressions by placing two hands on the chest. He said that he got the accused to do breaths into the mouth as he did the compressions. He said, "She was jumping in a bit early for each breath, but she did seem a bit hysterical. I could hear gurgling sounds coming from him when I did the compressions": Mr MacRitchie's Statement 18 January 2012 at [18].
15. He later said that a female train guard arrived and started doing some chest compressions.
16. Mr MacRitchie was called to give evidence at the special hearing on 16 February 2016. In general terms his evidence was consistent with the contents of his written statement. The limited cross-examination was directed only to clarifying and confirming the identity of the female to which he had referred in his statement ([15]) a reference to the accused.

(ii) The Evidence of Mr Jones

1. Mr Jones' statement to police is dated 18 January 2012 a copy of which is behind Tab 14 of Exhibit A. In general terms his evidence as to his observations, in particular relating to the accused, was consistent with those of Mr MacRitchie.
2. He gave an account of having spent time on the afternoon of 15 January 2012 fishing for mud crabs and oysters and that the female to which he referred, the accused, sat in the nearby location to where they were fishing for a period over three or four hours. He said he saw a male (the deceased) walk down from time to time to talk to the accused. When he did so he heard her yelling at him saying, "Fuck off, fuck off you dog cunt". He saw the deceased walk back behind the railway platform into the bush at some point. He said that each time the deceased approached the accused she would yell at him: Statement at [8].
3. Later in the day he saw the deceased come down, they spoke about the weather and the deceased then walked back to his tent.
4. After waiting twenty to thirty minutes until the rain stopped, he and Mr MacRitchie went back to the pontoon. He again heard the accused swearing. He said that it sounded like her yelling "was coming from where the campsite was set up". He could not hear the male voice saying anything: Statement at [11].
5. In his oral evidence, Mr Jones said that after the rain stopped he and Mr MacRitchie were tossing up as to whether to go home as they were soaking wet. He said at this point he heard the female yelling out, but this time she was back at the campsite: T 63:30-35.
6. He said he heard yelling and screaming by the female at the male similar to what had been going on in that respect for some hours. He said the yelling appeared to come from the campsite: T 63:40-45. He could not hear the male saying anything; he was still quiet at that stage.
7. A short time after that, that is, five to ten minutes later, he was asked if he heard the female from somewhere else on the platform. Mr Jones said that he did and that she had gone to the emergency phone and made a call. He heard her say, more or less "He's fallen over on a log and hurt himself": T 64:1-5.
8. Mr Jones said that he and Mr MacRitchie decided to go down to get oysters. He said he heard the deceased yelling something at some stage but he said to Mr MacRitchie that he did not want to go back to see what was wrong and that they should mind their own business: T 64:25-30.
9. He said that as they walked from the platform to fetch oysters he heard the deceased say, "You've got to get this out of here, you've got to get this out of me, you've got to get this out of me". He said he then heard, "You've got to clean this mess up" or "You've got to clean this up". He said he thought the accused had spilled something. He said he did not hear the accused say anything to the deceased in response: T 65:1-6.
10. Mr Jones said he tried not to pay any attention at this stage because the accused had been yelling abuse at the deceased all day. He said he couldn't tell if she was upset at the time of talking on the emergency phone because he could not see her face.
11. He said after twenty minutes of collecting oysters he heard Mr MacRitchie call out twice and he knew something was wrong. He said that he went to the campsite and it was a "horrific scene" with blood everywhere. He said he saw the deceased lying down face up near the front of a tent. He saw Mr MacRitchie doing chest compressions. The deceased appeared to be unconscious and looked dead. He said the accused was not saying a word: T 66:15-20.
12. Mr Jones was asked in the course of his evidence as to observations he had made when he saw the deceased earlier walking down to the water tank and then returning to the camp. In the period he made the observations he said the deceased did this three or four times. When asked if he noted anything about his gait or style of walking he said, "He seemed quite normal": T 70:15-20. When asked whether he heard the deceased saying anything to the accused, he said "He was so quiet, I don't think he was trying to make a scene and she was the one being loud and abusive": T 70:20-25.
13. There was no cross-examination of Mr Jones.

(E) The Evidence of Ms Annette Whitelum

1. Annette Whitelum had been completing the Great North Walk on 15 January 2012. As she approached Wondabyne she could hear people talking from the track and she saw a couple of tents near the train station. She said that when she was waiting for the train she was talking to a girl when a southbound train stopped. She said that a male and female got off the train and crossed the tracks and walked towards her. On the Crown case this was a reference to the accused and the deceased. Ms Whitelum said that the deceased was carrying a bag with beer inside and the female was carrying a big handbag. She said the deceased mumbled something and laughed at a comment. The deceased and accused walked to the first campsite which was the tent with the tarp covering it.
2. She gave a description of the deceased and the accused. Whilst waiting on the train platform she could see that the two had opened a bottle of beer each. She said that in her opinion they were both drunk. This, she said, was based on the way they spoke to each other. When they were talking, the deceased was talking quietly and the accused was rough and loud, and swearing. She said that they seemed to get into an argument and the deceased appeared to be trying to stop the argument.
3. Soon after they arrived at the campsite she saw the accused smoking a bong and from the aroma coming from the bong, she believed the accused was smoking cannabis: Statement 16 January 2012, (Exhibit A, Tab 13 at [11]). She said that she noted that the deceased was walking in and out of the tent and trying to get the accused into the tent but that she did not want to go and they then started having more heated discussion again. She said that she saw the deceased come out and try to physically pick the accused up and lead her into the tent but that she resisted and continued to argue. She said that the deceased said, "I'm gonna do you in". She heard the accused reply something like, "Well I'll fucking stab you and tip your beer over". She said that the threat to tip his beer over seemed to really upset the deceased. She said that he was not raising his voice in the argument, but she had "a real trashy voice and swore a lot which made her seem more aggressive than him": Statement at [12].
4. She said that the argument seemed then to defuse itself and they were talking nicely to each other. The accused continued to smoke out of the bong. Soon after the northbound train arrived. As it arrived she could hear the deceased and the accused starting to argue again. She caught the train at 1:44pm to Lisarow: Statement at [13].
5. In cross-examination, in particular in relation to para [12] of her statement, she agreed that in her statement she told police that the deceased said "something like" - "I'm going to do you in" and similarly she told police that the accused replied "something like" - "Well, I'll fucking stab you and tip your beer over you".

(F) The Accused's Version of Events

1. The police conducted an electronically recorded interview with the accused commencing at 12:36am on 16 January 2012. The interview was conducted by Detective Senior Constable Melanie Leaity and Senior Constable Andrew Jeffery.
2. The accused stated in the interview that she was inside the tent getting some food out for dinner when she: "… heard the knife snap against the log that was sitting there and just tripped over and fell on top of it": (Q/A 40)
3. Subsequently she said that she was preparing food for dinner and obtained the knife from the tent: (Q/A 250). Once she got the knife she then said that she "…sat it out there against the, up against the log thing, we've got like two logs that we were using as a chair": (Q/A 252).
4. She said that the log was not far away from the tent: (Q/A 255, 256).
5. The accused said that she had the knife sitting up against the log: (Q/A 258). and that it was on the side of the log closer to the tent: (Q/A 259).
6. She told police that the deceased had walked away from the tent to a nearby cave and then he walked back towards the tent: (Q/A 266-273).
7. The accused said that the deceased did not say anything to her and that she was just sitting inside the tent: (Q/A 274-5).
8. She said that all she heard was him fall (Q/A 276). The accused added that she heard him trip on something and he said "Ouch" and that he fell frontwards (that is face down) and then rolled over onto his back after he fell: (Q/A 281).
9. The accused told police that the deceased, "… just fell straight on top of the log actually": (Q/A 287).
10. The accused described the knife as being a blue coloured knife. It was brand new and it was a sharp steel knife: (Q/A 291-4).

(G) The Relationship Between the Deceased and the Accused

1. As noted above, the accused and the deceased had been in a relationship for approximately six months. The evidence indicates that they were both alcoholics and that they had consumed alcohol during the day on 15 January 2012. The deceased had also ingested Tramadol, a narcotic.
2. During the course of the hearing, Ms Loukas SC on behalf of the accused, challenged the admissibility of relationship evidence observing in her written outline of submissions dated 22 February 2016 (para [2]) that the admission of relationship evidence is governed by a combination of the common law and the general exclusionary provisions of ss 135 and 137 of the Evidence Act.
3. On 23 February 2016 I made a ruling that the evidence of relationship was admissible as context or as relationship evidence, but that it could not be used as tendency or coincidence evidence. The essential basis for the objection to the admissibility of the evidence was that there was a danger that the evidence may be misused. On 26 February 2016, Ms Loukas noted my reference in the reasons for the ruling on relationship evidence to the fact that no submissions had been made for its exclusion on a discretionary basis under either ss 135 or 137. Ms Loukas drew attention to the fact that those provisions were referred to in para [2] of her written submissions. That said, the essential basis upon which it was submitted that the evidence should not be admitted was the risk of its misuse as either tendency or propensity evidence. In my ruling I acknowledged the need to self-direct on the principles governing the admission of relationship evidence.
4. The evidence established that the relationship was a tempestuous one in that the accused and the deceased were often verbally abusive to one another with the accused having been seen on a number of occasions (including on the day of the deceased's death) as being the more aggressive of the two. In addition to Mr MacRitchie and Mr Jones, a number of witnesses said they saw the deceased and the accused on 15 January 2012. They gave evidence of hearing the accused verbally attack the deceased on a number of occasions, swearing at him in a loud and aggressive manner.
5. Evidence was called in the Crown case as to the nature of the relationship between the accused and the deceased prior to the stabbing incident on 15 January 2012. Mr Mark Eason provided a statement to police dated 16 January 2012 (Exhibit A, Tab 18).
6. Mr Eason's partner, Ms Hendrickson, resided at the Wondabyne Caretaker's Cottage. The residence was some 20m from Wondabyne station. He gave evidence of having noted the presence of the accused and the deceased at various times throughout 2011. He said that their presence was transient and that they would turn up for three to five days and then be gone three or four weeks. He said that quite often he would hear the accused swearing and abusing the deceased. He said he did not really hear much come from the deceased: at [5].
7. He said about a month before making his statement he was coming off the jetty after fishing and he saw the accused sitting next to the communication box and he heard her swearing at the deceased. On another occasion he saw the accused walking along the southbound train line carrying a frying pan, yelling out to the deceased: at [7].
8. He said that he often heard the accused from the house in a drunken slur yelling out and swearing at the deceased. He said he had never heard much out of the deceased. He said it was a common thing and he would just put some music on so that he could not hear any more: at [8].
9. There was evidence of two prior incidents involving violent episodes between the accused and the deceased. The deceased's mother, Ms Margaret Ann MacDonald, provided a statement to police dated 19 February 2012. She also gave oral evidence. She was not cross-examined.
10. In her statement to Queensland Police (Exhibit A, Tab 21) Ms MacDonald said that the deceased used to drink and she thought he had a problem with alcohol and that he was an alcoholic who drank most days, mostly as a beer drinker. She described him as a happy drunk: at [11]. She said she never saw him get cranky or angry while drinking.
11. Ms MacDonald said that her son also took drugs at various times and had smoked marijuana most of his adult life: at [12].
12. She gave evidence of an occasion on 11 December 2011 when she picked up her son outside the Ormeau shopping centre. She noticed that he had some scratches on the left side of his face and neck. She said that the scratches looked like someone had scratched him with their fingernails: at [29]. She spoke to him about these observations. She said that he told her that he had been camping with the accused and that she was cooking at the time with a frying pan over the camp stove when, on his account, she threw the fry pan full of food at him. She said he lifted his shirt and showed her a welt across his ribs on his right side towards his back.
13. Ms MacDonald said that on that occasion the deceased said that he picked up a lid of a butter container and flicked it towards the accused and hit her on the lip causing a small cut to her top lip. On his version, the accused then lunged at him and scratched him in the face and neck with her fingernails. He said he then packed up his gear and left her and came to his mother's home.
14. Ms Rebecca Mulheran, a neighbour of Ms MacDonald, gave a statement to police on 19 February 2012 in which she referred to an incident involving the accused.
15. In her statement, Ms Mulheran said that she was out in the front yard with her daughter when she heard loud swearing from a female voice. She looked across the street and saw the deceased and a lady, suggested as having been the accused, standing in the driveway to Ms MacDonald's house. She said that she could see the accused was swinging her arms around and lashing out towards the deceased. She said that it looked to her as though the accused was trying to scratch his face and his body with her fingernails. She said it looked very violent to her and the accused appeared "very vicious": at [12]. She said that the deceased appeared a bit scared as he was backing away from the accused down the driveway. Ms Mulheran said that the accused continued swearing loudly at the deceased. She was considering whether or not to call the police but then saw the deceased with his arms around the accused and they were both walking into the garage: at [16]. It appeared to her that the dispute had settled down a bit so she went inside with her daughter.
16. Ms Mulheran also gave evidence at the hearing. She was not cross-examined.

(H) The Autopsy Performed by Dr Beer

1. An autopsy was performed on the deceased at the Newcastle Department of Forensic Medicine by Dr Brian Beer, Senior Staff Specialist in Forensic Pathology at 8:30am on 17 January 2012. Dr Beer's observations and findings are set out in his Report dated 11 April 2012 a copy of which, as I have earlier indicated, is included in Exhibit A. He was called to give evidence. He was an impressive witness.
2. Dr Beer noted the evidence of injury, namely, a stab wound located in the upper inner medial aspect of the deceased's left thigh. The wound, he said, penetrated through the muscles and soft tissues of the thigh severing the left femoral artery and vein 60mm deep from the skin entry point. The wound extended for a further 35mm into muscle and fat beyond the transected artery and vein.
3. The cause of death Dr Beer stated was the massive blood loss secondary to the femoral artery and vein being transected by the stab wound.
4. A knife, similar to the blue knife that caused the injury was stated by Dr Beer to measure 37mm wide at its maximum width and 150mm from the tip to the hilt. As I will discuss, a noteworthy fact was that the wound was also 37 mm wide with a maximum depth of 95mm and was consistent with having been caused by such a knife. Dr Beer referred to it as a "neat" wound.
5. Dr Beer noted that the wound penetrated through the muscles and soft tissues of the thigh severing the left femoral artery and vein 60mm deep from the skin entry point and 250mm from the iliac artery bifurcation. A finding of particular importance related to the trajectory of the knife wound. Dr Beer described the wound track as left to right, front to back and downwards and upwards at an approximate angle of 45 degrees.
6. Dr Beer in [6] of his report stated: "In the Police summary P79A, the proffered explanation from Blanks as to how this incident occurred, was that the deceased stumbled and fell onto the knife. While the dynamics of this occurring cannot be totally excluded this explanation is difficult to reconcile with the autopsy findings, and is not particularly plausible."
7. As to the last part of that sentence, Dr Beer in oral evidence stated that any experienced forensic pathologist will always say that you can never say "always" because in his field of work the unusual can occasionally, very rarely, occur, and that "… without good witness evidence of what's going on, it is sometimes difficult to totally exclude propositions": T 111:30-36.
8. In cross-examination he agreed that he had said in his autopsy report (para [6]) that the scenario of the deceased stumbling and falling onto the knife could not be totally excluded. He confirmed that in forensic matters he will never say "never" and never say "always", "strange things do happen" and that though he could not totally exclude the possibility, on the level of probability, he had issues with the accused's suggested scenario: T 120:5-17.
9. Dr Beer proceeded: "The issue I have with this particular case, and it really revolves around the angle of the trajectory of the knife wound, is to explain how that occurred given the scenario. Had the deceased fallen directly onto the log and the knife as has been put to me in this, I would have expected the initial entry point, the wound, would have been either horizontal into the thigh or actually hitting downwards somewhat …" (T 111:35-45)
10. The doctor indicated a reference to horizontal position to his own thigh by way of explanation of his evidence. He then continued: "A: Or it would have been perhaps slightly downwards heading towards the knee (indicating). That is why I would have expected out of a direct fall onto the knife in the way it has been proposed. Had there been movement going forwards the very neat way the wound was and you can see at post mortem, there would have been a lot of movement of that knife. Had it gone in perpendicular and gone upwards we would have seen - we wouldn't have seen the nice shelved appearance to it …" (T 112:5-15)
11. When asked to explain what he meant by the word "shelved" and whether it meant the actual look of the wound itself, which had the look of a shelf to it, Dr Beer responded: "A: Yes, it's got a nice shelf going upwards in a certain direction. So I found it difficult to explain that dynamic, how he managed to get a knife wound that was going up at 45 degrees angles towards the groin, and to me that is the essence of this case. I find it very difficult to explain that and given that scenario, perhaps if the person had stumbled going forwards and gone to his knees, again no evidence to suggest that from the autopsy, I cannot see how the thigh would have been impacted in that sort of way." (T 112:15-25)
12. Dr Beer confirmed in his oral evidence that the knife had travelled up the leg. By reference to photograph 3 in Exhibit G, Dr Beer described the upwards movement of the knife: T 106:20-30.
13. Photograph 49 was said to give an indication of the angle at which the knife had gone up as indicated by the trajectory of the wound: T 106:40-46.

The Absence of Bruising or Abrasions

1. There was no bruising or abrasions detected on autopsy in the area of the legs, in particular in the thigh and hip areas, consistent with the deceased having fallen on the log: T 109:1-10. Dr Beer was taken to the photographs in Exhibit A, Tab C, Nos. 1, 2, 4 and 5, being photographs of the log found outside the tent that had been used by the accused and the deceased. He said it would have been a reasonable proposition to have expected, given inter alia the dimensions of the log, that there would have been some sort of injury to the body of the deceased by falling upon the log: T 110:5-10. He referred in this respect to abrasions and bruising.
2. Dr Beer gave evidence in relation to two diagrams which he prepared showing a stick figure depicting a situation where a person had fallen over the log: T 115. He stated that if a person fell and hit the damp earth then no sign of injury would be feasible. If, however, the person fell and hit something hard such as a log, then he would expect that as a result of impact there would be bruising and some surface abrasion or loss to the skin: T 115:6. He said that none of that existed in this case.
3. Dr Beer agreed that if the deceased had fallen straight onto the knife, that is he lurched forward and went down to the knife with his head forward of the log and heavily impacted with the log, he would expect there to have been some damage to his body: T 110:10-16.
4. In the course of his evidence Dr Beer said that bruising on the left knee detected at autopsy was an old, and not a "current" injury: T 110:25-30. The bruising to the medial aspect of the left foot above the ankle was also an old bruise.

Evidence of Dr Beer Disputing the Accused's Account of the Incident

1. In relation to photographs 2, 3 and 4 of Exhibit C, Dr Beer noted that the knife was shown in the photographs positioned at different angles. They clearly show the shape of the base of the knife as well as the top part of it projecting above the log at the different angles: T 118:15-20.
2. In relation to the accused's account of the incident, Dr Beer stated that if the knife was located as shown in the photographs and somebody stumbled on the log then the initial trajectory of the knife, if it was upright, would have been such that it would have "gone straight in". This I note is consistent with his evidence as to horizontal entry point: see para [90] above. He said in that event there would not have been any shelving going upwards as he had observed it on autopsy: T 118:20-25.
3. When asked to confirm that it would have been horizontal to his thigh, Dr Beer added: "A. Or it would have been perhaps slightly downwards heading towards the knee (indicating).
4. Dr Beer's evidence in this regard emphasises the significance of the findings as to a "neat" entry to the wound, the upwards tract of the wound and the shelving as all consistent with a single stab wound and inconsistent with a trip and fall forwards onto the knife.
5. On the accused's version of events, if the knife was in the resting‑back or inclined position as shown in photograph 3, then Dr Beer said he would have expected the initial trajectory would have actually shown the shelving going downwards on the leg (that is, I observe, opposite to the wound found on autopsy). If on that version allowance was made for movement in the knife, then Dr Beer said: "… I think that would have destroyed or upset the nice neat shelving that we have seen. You can appreciate that if you have got movement like that there's going to be movement of that knife in there and I wouldn't have seen such a nice neat entry to it." (T 118:30-35)
6. Dr Beer was then asked by the Crown to have regard to the evidence, including the photograph showing the actual knife in position behind the log from where the deceased came towards the log. On the scenario that he had fallen, on the version of the accused, onto the knife and the log, he was asked and gave answers as follows: "Q. Which would have been behind the log from where he was now from that angle, for a start, Doctor, the wound you would expect would be horizontal as he fell on the knife? A. The initial in point I would have thought would be horizontal, and had he gone forward, we would not see this very nice clean shelved appearance and the actual width of the wound would have been, I would have thought, wider than what we see. Q. Why would you have thought it would be wider than the actual knife with the shelf? A. Because there would be movement of the knife and the wound. Q. So it wouldn't be a clean stab wound, so to speak, it would be moving around? A. Correct. Q. As the base of the knife was not held firm, is that right? A. Yes. Q. Indeed, the base of the knife would have moved, given its positioning as, on this scenario, the deceased fell on it, is that right? A. Correct. And also I would have thought to my way of thinking that if that occurred and the knife had - sorry, the log had rolled forward as it would do with the momentum of the body, the knife wouldn't continue on going forwards, it would actually be pulled out and you wouldn't have got the depth that we saw. Q. And, indeed, if the deceased fell onto the log and the knife, you would expect the log would indeed, if it moved, would move in the same direction that is forward, would it not? A. Correct, yes. Q. And that would place the knife in the situation where it would be either further upright or in fact, pointing backwards so to speak, is that right? A. In part. Again, in this scenario it is difficult to make a precise dynamic how that knife would have gone, but I cannot see that that knife would have been thrust upwards at 45 degrees that the depth that it got to." (T 113:1-25)
7. Dr Beer confirmed that he did not see either an entry wound or trajectory that was consistent with the accused's account. He added: "… And I find it difficult to see how that has gone in that scenario in a very neat, upwards 45 degree angle. That to me is the crux of what is going on here." (T 118:35-41.)
8. In relation to photographs 2, 3 and 4, he was asked by the Crown to note from the photographs that the knife was shown as sticking "… a bit above the log": T 119:1-5. In this respect Dr Beer spoke of the log in that sense as operating as a "barrier". He was asked, that if the accused's account of the deceased falling on the log was correct, whether it would only be the tip of the knife showing above the log that would penetrate or go into the deceased after impact with the log. Dr Beer considered that that would be the case and that the log would roll forward which he stated would have the effect of stopping any further insertion of the knife into the deceased: T 119:1-15. The actual depth of the wound as revealed on the autopsy examination he agreed was far greater than the extent of the tip projecting above the log: T 119:14-16. The depth of the wound was identified as another fact that was inconsistent with the version related by the accused.
9. In commenting upon the proffered explanation from the accused as to how the incident occurred, with the deceased stumbling and falling onto the knife, Dr Beer wrote in his report at p 4: "… While the dynamics of this occurring cannot be totally excluded this explanation is difficult to reconcile with the autopsy findings, and is not particularly plausible."
10. Dr Beer said that the depth of the wound was 37mm, about one-third, halfway up the knife and continued up to the base of the knife. He said that it looked very much like a stab wound to him: T 113:25-35. He based that observation upon the fact that he had seen a number of stab wounds in the course of his work as a forensic pathologist.
11. Dr Beer addressed certain theoretical possibilities. He said that he could not utterly exclude suicide by thrusting a knife and that that was the only way he could see how "you can do that": T 114:1-5. However, he said that he did not see that as being particularly realistic. If one was looking at a situation of someone else having stabbed the deceased, then based on his findings it would have been by someone probably from below thrusting the knife upwards: T 114:1-10.
12. The scenario was put to Dr Beer of the accused sitting preparing dinner, and cutting vegetables using a knife, an argument then developed between himself and the accused and the deceased and then the accused lashed out at the deceased with the knife, hitting him not in the chest or neck, but somewhere in the leg. Dr Beer said that that account is consistent with the wound that he saw: T 114:10-15.
13. In that latter scenario he assumed that the deceased would have been standing and the accused either sitting or being below him. He indicated an upward thrust towards the deceased: T 114:25-30.

Toxicology Results

1. The toxicology results showed a raised blood alcohol level of the deceased of 0.122g/100mL and increased level of Tramadol, a narcotic agent. Dr Beer stated that the blood alcohol level, given the deceased's history may well have been fairly normal for him. As to the effects of alcohol and other substances that had been consumed by the deceased, Dr Beer considered that they or their effects may relevantly be assessed on the basis of contemporaneous observations by independent witnesses: T 103:5-10. There was, I note, evidence from Mr Jones that he saw the deceased walking on a number of occasions on 15 January 2012 and he noted nothing unusual in the way the deceased walked.
2. Dr Beer noted that the toxicology results revealed an increased level of Tramadol (a narcotic agent) which could be in the reported low toxic or low lethal range levels, but in a user such as the deceased was consistent with chronic habituation to the drug. There was also therapeutic levels of paracetamol, and evidence of cannabis use.
3. Tramadol he said was a synthetic opioid agent and used for pain relief. He said there was a very wide overlap between what might be considered to be just above therapeutic to being toxic to lethal.
4. In relation to the combination of Tramadol and alcohol, Dr Beer stated that he could not give an accurate estimate of how it might have affected the deceased, knowing that he used alcohol and Tramadol on a regular basis. He agreed that the observations of independent witnesses as to the deceased's condition would be, as I have already indicated, more relevant. I will in due course refer to the evidence of Mr Jones who saw the deceased walking without apparent difficulty on 15 January 2012.

(I) The Evidence of Dr Andrew McIntosh

1. Dr Andrew McIntosh, Biomechanics and Ergonomics consultant, produced a Biomechanical Report regarding the death of Shayne MacDonald dated 17 January 2013, a copy of which was included in Exhibit A, Tab A. The Report describes a biomechanical analysis of the circumstances in which it was alleged that the deceased suffered a fatal stab wound to his left upper thigh. He also provided a Supplementary Biomechanical Report dated 2 August 2013.
2. Dr McIntosh holds a number of degrees including Master of Biomechanical Engineering at the University of New South Wales (1991) and Bachelor of Applied Science in Physiology at the University of Sydney (1984). He has been consulting in the area of biomechanics since the late 1990s. His curriculum vitae set out details as to his background experience and consulting services in relation to biomechanical matters. In relation to the area of human biomechanics, Dr McIntosh studied anatomy and physiology and biomechanics as an undergraduate and later biomechanical engineering and specialised courses of biomechanics and ergonomics.
3. Objection was taken to Dr McIntosh's evidence on the basis that he was not a forensic pathologist and for other reasons set out concerning a number of matters raised in the Outline of Defence Submissions on Admissibility of Opinion of Dr Andrew McIntosh. These included a question as to whether or not Dr McIntosh had expertise in the specific domain that he was engaged for, namely, expertise in the causation of knife wounds. Whilst it was acknowledged that Dr McIntosh had undoubted expertise in other areas of biomechanical analysis, it was argued that there were many variables in terms of measurements, unknown orientation of the log and knife and inaccuracy in measuring the wound angle: Submissions at [4]. It was submitted that there would be a relatively high degree of impression in the calculations used by Dr McIntosh, and an unacceptable degree of speculation.
4. Submissions were made for exclusion under s 137 of the Evidence Act. A number of alleged "problematic issues" were set out in the written submissions at [7]. It was additionally submitted that the probative value was outweighed by the unfair prejudice that would arise from Dr McIntosh's opinion evidence.
5. Dr McIntosh's evidence established that he had had professional experience in the biomechanics of bodily movement. Dr McIntosh possesses expertise and experience in the field of biomechanics generally and in particular in relation to injury causation. His professional experience has involved him attending autopsies for the purpose of investigating accidental and intentional violence.
6. I have concluded that Dr McIntosh by virtue of his training, qualifications and experience is well-qualified to give expert evidence in terms of s 79 of the Evidence Act upon the matters the subject of his reports and oral evidence. His reports and evidence are admissible expert evidence having regard to Dr McIntosh's academic, post-graduate training and practical experience in analysing biomechanical issues. I do not consider that any prejudice arises from the admission of the evidence which is probative of matters relevant to facts in issue.
7. Dr McIntosh identified the materials available to him, including a copy of the ERISP with the accused. His Report contains relevant photographs of the incident scene and the log (Figure 3). He noted the dimensions of the log were: circumference of the log at one end to be under 725mm, in the middle 725mm and at the other end 715mm. Figures 5 and 6 of his Report depicted the wound location and the wound angle in sagittal plane (not to scale) respectively. The latter diagram, Figure 6, depicts by a black arrow the wound angle showing the knife having gone into the thigh and upwards at a 45 degree angle.
8. Dr McIntosh noted that the knife was 155mm from tip to hilt and its maximum width was 37mm.
9. Dr McIntosh observed that in relation to the orientation of the knife against the log, the maximum height the blade could reach above the uppermost surface of the log was between 30mm to 55mm, depending upon the varying radius along the length of the log.
10. Figures 9-13 inclusive of Dr McIntosh's first Report, depict the knife at various angles resting against the log.

Scenarios Examined

1. Dr McIntosh examined three basic scenarios in his Report. The first scenario related to the knife being positioned on the side of the log furthest away from the deceased and closest to the accused (that is, the far side). This scenario accorded with the facts established in evidence. The second scenario dealt with the knife positioned closest to the deceased and on the side of the log furthest away from the accused. The third scenario is not of relevance and need not be discussed.
2. In dealing with the first scenario, which is the relevant scenario for the purpose of the present proceedings, Dr McIntosh's analysis included the following observations that: 1. The log presents a critical barrier to the knife entering the thigh at 45 degrees upwards. This was because the thigh (with or without compression of the soft tissue) must sit at a tangent to the edge of the log. 2. Even in the most likely scenario with the blade vertical, due to the height of the blade above the top surface of the log, it was not possible for the thigh to be oriented in a position that could give rise to a 45 degree wound angle: Report at [25].
3. Figure 14 in Dr McIntosh's Report is a schematic diagram of scenario 1 depicting the knife in a situation where the deceased had stumbled and fallen towards the knife.
4. In oral evidence Dr McIntosh stated that, in relation to scenario 1 as depicted in Figure 14, his basic finding was that in that scenario which is assumed to have occurred it would be very unlikely that the knife wound could have assumed the angle as it was observed by the forensic pathologist (Dr Beer). Nor, on that basis, would the knife have been at the depth that it in fact reached he said: T 142:5-12.
5. He additionally observed that the log would have presented itself as a critical barrier to the knife entering the thigh at a 45 degree angle upwards. In oral evidence he explained that the log represented a barrier to the thigh engaging with the blade of the knife. He explained that because the surface of the thigh had to be at a tangent, the log operated as a barrier: T 142:15-21.
6. If someone fell and the blade was sitting in a vertical position (with the blade having a potential height above the log), the knife would engage the person's thigh. However, because the knife was sitting up vertically a 45 degree upward knife entry wound would be unlikely: T 142:25-31.
7. If the knife were not lying vertically, but just lying against the log pointing towards the front of the tent, then, Dr McIntosh observed, the likelihood of a 45 degree angle would be even less likely than the scenario with the blade being in the vertical position. He stated; "… the knife would be more likely to cause a wound which is pointing down towards the knee, not up towards the pelvis." (T 142:35-40)
8. This latter orientation of the knife was depicted within Figure 13 to Dr McIntosh's Report.
9. In the event of the deceased stumbling and landing on the log, Dr McIntosh stated that in those circumstances it was possible that the log would move in which event the knife would be pushed over by the log as the log moved forward towards the tent: T 143:1-10.
10. In that scenario, with the thigh falling onto the log with only a bit of the knife poking up above it, Dr McIntosh stated that the wound would not have been as deep as 95mm: "… Because there's a rigid barrier created by the log and there is only the tip of the blade above it which is not 95mm." (T 143:15-20)
11. In summary, in that latter scenario the angle of the wound and the depth of the wound would not be consistent with the wound actually inflicted.

Consequences if the Deceased Fell on the Log

1. Dr McIntosh agreed that if there was movement of the knife caused, for example, by somebody falling on the log causing the knife to move around, the wound would be potentially jagged or the opening aperture would be widened because of the knife moving or the thigh moving relative to the knife: T 144:25-36. He observed that if the width of the wound was 37mm, and that that was the same as the width of the knife at its greatest width, that fact would not be supportive of the knife moving around: T 144:39-41.
2. It was put to him by the Crown Prosecutor: "Q. … but if there was one stab wound which created a wound the exact same width as the knife without there being frayed edges or further movement around - perhaps widening the width of the knife wound, would that be consistent with the knife being held firmly at the hilt? A. It would be consistent with a - with the knife being held firmly or the forces being applied in the single trajectory and then removed." (T 145:1-5)
3. In relation to the possibility of the wound being caused by the deceased falling: 1. In that scenario Dr McIntosh considered that it was more likely than not that the hilt of the knife would be moving. 2. The tip of the knife being pushed down with the movement of the log there would be even less of the knife blade above the log to penetrate the thigh, that is, it is going to be pushed away and lose height above the log: T 145:5-20.

Dr McIntosh's Conclusions

1. Dr McIntosh set out his opinion on a number of aspects at [31]-[36] of his Report. These include: 1. His analyses showed that it was very unlikely that there were orientations of the thigh, log and knife that could give rise to the knife being orientated relative to the thigh in the same angle as the actual knife wound found on autopsy. 2. Though he referred to "limited orientations" of the thigh, log and knife in combination with the requirement for thigh compression that could give rise to the knife being orientated relative to the thigh in approximately the same angle as the knife wound. The pattern of injuries suffered by the deceased were not consistent with the mechanism of injury that gives rise to the wound angle in that limited set of circumstances: at [31] of his report. 3. His analyses established that the possibility of the wound being caused by the knife being placed against the side of the log closest to the accused is remote, that is, highly unlikely but not impossible. 4. The force associated with forward momentum in the event of a fall would tend to move the knife away from the log and also change the orientation of the wound. 5. In the scenario where the knife is knocked over and fallen on, the knife and the person are moving together or potentially the person is moving away from the knife. Therefore it is unlikely that the knife would penetrate into the thigh under those circumstances: at [35].
2. Dr McIntosh set out the limitations that operate in deriving his analyses in the following terms: "There are a number of limitations. The orientation of the log and the orientation of the knife against the log are unknown, as is the alleged nature of the fall. The slipperiness of the ground and the ability of the knife to be wedged into the ground are also not quantifiable. The accuracy of the measurement of the thigh wound is also not known. Therefore, assumptions have been made to develop scenarios for which there are informative solutions. The author has not seen autopsy photographs or discussed this case with the pathologist." (Report at [37])
3. Dr McIntosh also expressed the following opinions: 1. The feasibility of the wound being inflicted in the way described by the accused was low and unlikely, although, as he said, not impossible. 2. The feasibility that the wound was inflicted by any other type of fall onto the log was low. There were possible orientations of the knife combined with a specific fall that might give rise to the wound (eg, with the knife placed on the side nearest to the deceased). 3. Apart from a very limited set of circumstances under which the knife could have entered the thigh at the observed angle, injuries that might be anticipated had those circumstances come into play, were not observed in this case, that is, no thigh bruising and abrasions.
4. In relation to the limitations stated at [37] of his Report, Dr McIntosh explained that there were "constraints" in terms of a scenario in which the deceased was walking and fell on the log resulting in a knife penetrating the thigh. The constraints include: (a) movement of the knife; (b) movement of the person; and (c) deflection. Dr McIntosh said not all of such variables could be inferred in any particular way: T 156:1-15.
5. In cross-examination it was put to Dr McIntosh that as a result of applying his scientific method to the question before him, he did not exclude the possibility of a fall onto the knife as described by the accused. He responded: "A. No, I believe I have not excluded that as a possibility." (T 158:5-10)
6. In re-examination, he was asked: "Q. What's the likelihood of this occurring from your investigations as the accused indicated? A. It's very unlikely." (T 158:25-30)

(J) Submissions for the Accused

1. It was submitted that the Crown had not proven murder beyond reasonable doubt. In the written and oral submissions it was contended that the accused's account was consistent with an accidental fall. A number of matters in that respect were relied upon including the following: 1. The accused's evidence that she heard a knife snap against the log and the deceased then tripped over the log. 2. The accused behaved in a manner inconsistent with somebody who had deliberately inflicted a stab wound. In that respect, reference was made to the accused's account of having obtained a towel and wrapping it around the accused's leg and applying pressure, calling for help via the railway station's emergency phone, assisting in resuscitation efforts and the distress that she manifested including distress during the course of the ERISP, crying for a substantial portion of its duration. 3. The evidence of the Help Point recordings in which the accused sought medical assistance and in which she provided an account that was consistent with an accidental fall. 4. There was evidence from other witnesses which supported the accused's account of accident, or was evidence inconsistent with deliberate stabbing. This included: 1. The accused's cooperation with Senior Constable Loasby in performing cardio-pulmonary resuscitation on the deceased. 2. Her assisting Mr MacRitchie in relation to his efforts to perform CPR. 3. The evidence of witnesses including a Ms Banner who saw the accused giving mouth-to-mouth resuscitation.
2. In addition it was submitted that in relation to the account of the deceased falling on the knife, there was evidence that that was consistent with the accused's account. This included: 1. The evidence of Senior Constable Loasby who was given an account by the accused of the deceased having tripped and fallen on a knife which was lying against the log. 2. The evidence of Senior Constable Dawkings to whom the accused provided an account of the deceased falling down on the knife. 3. The evidence of Senior Constable Formston receiving a similar account. 4. Her account to Mr MacRitchie and to Ms Hendrickson.
3. Reliance was also placed upon observations of others who saw the accused in the distressed and/or distraught state. This included evidence referring to the accused sobbing and crying, being agitated and distressed.
4. In relation to expert opinion evidence, it was submitted that although all three expert witnesses gave the opinion that the most probable explanation was a deliberate stabbing, an accidental fall could not be excluded as a reasonable possibility.
5. Reliance was also placed upon the evidence of Dr Duflou including his evidence of having seen a bruise on the deceased's knee which was said to be consistent with a fall. As I have noted elsewhere, there is an issue as to whether this was a new or old bruise.
6. Submissions were made in relation to relationship evidence and the directions that are required, and the issue of lies and the directions required, including in particular, directions of the Edwards type (R v Edwards (1993) 178 CLR 198, 210).
7. In the submissions for the accused a Not Guilty verdict was sought, and it was submitted that the accused should be acquitted. It was submitted that the Crown had not proven murder or the alternative charge of manslaughter beyond reasonable doubt.

CONSIDERATION

1. I commence by observing that the accused is to be taken as a person of limited good character, that is to say that she has no criminal convictions for offences of violence. Accordingly, in that respect I direct myself as follows: 1. Her good character is to be taken into account in her favour on the question of whether the Crown has proved her guilt beyond reasonable doubt. 2. The fact that she has no criminal convictions for offences of violence is relevant to the likelihood of her having committed the offence of murder. 3. I am permitted to take account of her limited good character by reasoning that such a person is unlikely to have committed the offence charged.
2. I also note the statement of Mr Peter Moore dated 6 March 2012 (Exhibit A, Tab 8) in which he stated that over the time he had been associated with the accused (a period of approximately 16 or 17 years, part of which time they had lived in a domestic relationship) he had not seen her exhibit any violent conduct.
3. The Crown case relied upon circumstantial evidence at the centre of which were the findings made on autopsy concerning the injury received and the cause of death. The expert evidence, as I have indicated, consisted of the reports of Dr Beer, on the basis of his autopsy findings, and that of Dr McIntosh in relation to the biomechanical aspects, in which there were identified matters that were consistent with and supportive of the means by which the wound was inflicted, namely a deliberate stabbing action. The evidence of Dr Duflou called in the defence case, did not dispute the essential findings of Dr Beer. Nor did Dr Duflou contest the conclusions reached by Dr Beer based on those findings. Indeed, Dr Duflou's conclusion that it was likely that the deceased died from a deliberate stab wound was wholly consistent with the conclusions of Drs Beer and McIntosh. The issue raised by Dr Duflou was whether, on the facts established in evidence, there was open a reasonable possibility consistent with the accused's account of the incident.
4. A judge sitting alone, or a jury, cannot be satisfied to the requisite standard of proof - proof beyond reasonable doubt - on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. I refer in that respect to the High Court's decision in R v Hillier (2007) 225 CLR 618 at [46] per Gummow, Hayne and Crennan JJ. As there also observed, it is of critical importance to recognise that in considering a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. Reference in that respect was made to the well-known dicta in Shepherd v The Queen (1990) 170 CLR 573 per Dawson J at 579.
5. In Hellier it was also observed that often enough in a circumstantial case there will be evidence of matters looked at in isolation from other evidence that would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial evidence case to be considered piecemeal: at [48].
6. In this case there is evidence of the accused's version to police in the ERISP conducted on 16 January 2012, a copy of which, as I have stated, is behind Tab A of Exhibit A, in particular, the Questions and Answers 40-46 and 249-288.
7. The statements made by the accused, including the Help Point calls and her statement in the call made at 17:27:07, namely, that "he fell on a knife" and her statements to others at the incident scene, and in the ERISP, require close consideration along with the other evidence. In that respect, evidence bearing upon the accused's credibility is critical. This is particularly so in circumstances where she gave her account or version of the incident on the day that it occurred. Additionally, the evidence as to the findings on autopsy are to be assessed for their significance in terms as to whether it supports or negates a reasonable or rational alternative hypothesis consistent with innocence.
8. I will return to these aspects shortly.

(J) Relationship Evidence

1. Relationship evidence in its traditional sense is evidence that places the acts of the accused in context: Qualtieri v The Queen [2006] NSWCCA 95 at [144].
2. In that case it was observed that relationship evidence which is relevant is admissible under the Evidence Act 1995. That evidence is not subject to the operation of the tendency rule because the evidence is not being admitted to prove a propensity or tendency on the part of the accused to do the act charged: Qualtieri at [115]. Reference was made to the decision in R v Serratore (1999) 48 NSWLR 101.
3. Accordingly the evidence may be admitted where the relationship between the accused and some other person is a relevant matter. It is admitted not to prove that the accused had any particular propensity or disposition towards the deceased but to put the particular allegations in the context of the whole of the relationship: Qualtieri at [116].
4. Accordingly, it is necessary to guard against the use of context of relationship evidence as tendency reasoning: R v Rowe [2002] NSWCCA 455 at [270]-[282].
5. I accept, as submitted on behalf of the accused, that the necessary self-direction I am required to give and which I do adhere to, is in the following terms: "a. The purpose of the tender of the evidence (ie its purpose is to establish a context for the offence); b. Its purpose is not to use the evidence of as establishing a propensity on the part of the accused to commit offences of the type charged; c. It is not to substitute the relationship evidence for the evidence led in support of the charges in the indictment; and d. It is not to reason that, because the accused committed other acts of misconduct, he or she is therefore generally a person of bad character and for that reason must have committed the offence(s) charged."
6. The evidence of witnesses called in the Crown case establishes that, prior to 15 January 2012, the deceased and the accused had had a volatile relationship during which at times the accused swore and verbally abused the deceased and that this was often associated, it would seem, with the accused's intoxicated condition. The evidence indicates that they not infrequently engaged in heated exchanges, with the accused being the more aggressive of the two. This, on the occasions to which Ms McDonald and Ms Mulheran referred, involved some physical acts of violence towards the deceased by the accused.
7. That said, the evidence however does not suggest that these acts of physical violence by the accused were premeditated. On the evidence, I am of the opinion that they are indicative of a spontaneous loss of self-control, probably due at least in part, on some occasions, to the accused's excessive use of alcohol.

Lies

1. The Crown submitted that the accused told many lies in her ERISP and that these lies show a consciousness of guilt.
2. The Crown, in particular, contended that the accused lied about the following matters: 1. Whether or not she had previously assaulted the deceased. 2. Whether she had had significant or major arguments with the deceased. 3. Whether she had abused the accused yelling at him and swearing at him.
3. The Crown submitted that many of the lies said to have been told by the accused adversely affects her credibility and shows her cunning nature. It was submitted that the evidence of independent witnesses showed that the accused was violent towards the deceased and that given what was referred to as the "plethora of lies, it would be difficult for a jury to accept anything she said": Crown Written Submissions at [39]. It was submitted that it would be difficult to accept her version about the injury to the deceased occurring in a fall onto the knife.
4. The Crown further submitted at [40] that in her answers in the ERISP the accused lied constantly, trying to paint a picture of a benign relationship between herself and the deceased, which did not involve assaults by her on him and did not involve her yelling at him or involve any major arguments out of the ordinary: Crown Written Submissions at [40].
5. Further, the Crown contended that she denied swearing at him on 15 January 2012.
6. In relation to the accused's answers in the ERISP on the subject of her relationship, the following is noted: 1. Question 122 - when asked whether she and the deceased got along, she said "Yeah, good". 2. In answer to Question 123 she said that they had "little arguments here and there, but nothing spectacular or nothing horrible … like it was all good. Yeah." 3. When asked at Question 125 how often they would argue, the accused said "Oh, not that often. Not that often. Only about once a week or something like that. Like the ex-boyfriend rings up and harasses me on the phone and stuff like that and Shayne -- gets the shits with it and yeah, he used to get the shits about, yeah." 4. In Question 133 she was asked whether he, referring to the deceased, had ever assaulted her, to which she replied in the negative. When at Question 134 she was asked whether she had ever assaulted the deceased, she said "No". 5. At Question 135 she was asked whether she and the deceased yell at each other. The accused replied "Yeah. Of course we yell at one another. Yeah." When asked at Question 136 how often, she said "Not a regular thing". In answer to Question 137 she repeated it wasn't a regular thing, maybe every couple of days they would have a couple of words with one another, but nothing spectacular, nothing out of the ordinary. "It's just verbal shit." 6. At Question 139 when asked whether she had any major arguments since she had been out at Wondabyne, she answered: "No." At Question 140 when asked "Like in the last week or so?" she replied "No. No. None. None at all." 7. When asked at Question 141 whether they had any arguments with each other on 15 January 2012, the accused responded "No. Had a few words this morning, because his mattress was going on a bit flat. He woke up with the shits. I said 'Oh, get over it'. I said 'grow up'." 8. At Question 431 the accused was asked whether she and the deceased were yelling at each other "today", the accused responded "No, no." At Question 432 she was asked whether they were raising their voices at each other, to which the accused again replied "No, no". When asked about swearing at each other, the accused again replied "No." 9. At Question 434, she said sometimes when talking to somebody she would swear sometimes. At Question 436 when asked whether she would call the deceased names, she said "Sometimes I call him a mutt". 10. At Question 439 she was asked whether she was calling him those names "today". She responded "No". At Question 440 she was asked whether she remembered swearing at him at all "today". She again replied "No" and said that he did not swear at her. At Question 442 she was asked "So there was no other argument or anything at all ---". She answered "No". Question 442 --- except apart from the mattress earlier this morning? Answer - "yeah, it wasn't even an argument".
7. The Crown submitted that the lies of the accused show a consciousness of guilt, that they were deliberate, related to events of the day in question and previous days and the verbal abuse, swearing etc were corroborated by several independent witnesses: Crown Written Submissions at [43]. The Crown submitted the lies relate to a material issue, namely, the violence and aggressive and abusive behaviour of the accused towards the deceased.
8. The Crown submitted that the lies were deliberate because the accused knew the truth of the matter would implicate her in the offence: Edwards v R (1993) 178 CLR 193.
9. The Crown also submitted that the lies were verified by independent evidence and that accordingly there is considerable certainty about them: Crown Written Submissions at [45].
10. On behalf of the accused it was submitted that as the ERISP contains statements the Crown now seeks to rely upon adverse to the accused, they are admissions and s 85 of the Evidence Act 1995 applies: R v Esposito (1998) 45 NSWLR 442, 458.
11. It was further submitted that the ERISP was conducted by an investigating official (Sergeant Leaity) performing functions related to the investigation into the death of the deceased: s 85(1) Evidence Act.
12. It was submitted that the statements were not admissible in evidence as admissions, unless the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected: s 85(2) Evidence Act. This is to be proved on the balance of probabilities once an arguable point is identified by the accused. Only if the court is so satisfied can the evidence be admitted: R v Esposito at 459.
13. The following factors were said to affect the truth or untruth of the admissions: a. The accused was an alcoholic and certainly affected by alcohol, suffering from withdrawal symptoms, or hung over at the time of the interview, b. The ERISP commenced within seven hours of the accused witnessing the death of the deceased. The distress witnessed at the Wondabyne campsite continues to be constantly evidence in the ERISP. c. The accused at A370 of the ERISP expresses a desire to go home, yet the police continue with the interview."
14. It was submitted that the combination of these factors would cause the Court to find that it was not unlikely that the truth of the admissions were adversely affected.
15. If admitted the question as to whether the statements were lies must be considered. In that respect, to be a lie the person must say something the person knows at the time of making the statement is untrue.
16. I will deal with the issue raised under s 85 of the Evidence Act. In R v Esposito (1998) 45 NSWLR 442 the appellant gave answers when interviewed by police in which, amongst other things, she denied being at or having knowledge or involvement in the events in which the deceased in that case was stabbed. In that case at p 458, Wood CJ at CL held that the provisions of s 85 of the Evidence Act which applies in a criminal proceeding and to evidence by way of an admission by an accused is not confined to inculpatory statements. Statements that were adverse so far as they were relied upon as constituting an implied admission of guilt may fall within the expression "an admission" even though they were on their face exculpatory (pp 458-9).
17. The provisions of s 85 are concerned with circumstances in which an admission is made by a defendant or accused person, specifically with those in existence during official questioning. The evidence of an admission may be admitted if the circumstances referred to in s 85(2) make it unlikely that the truth of the admission was adversely affected. It is for the defence to identify an arguable point in that regard whereupon its admissibility will fall to be determined in accordance with the standard of proof specified in s 142 of the Evidence Act.
18. I proceed upon the basis that the statements made by the accused, on which the Crown relies as lies, are admissions and are to be considered in accordance with the provisions of s 85 of the Evidence Act.
19. It was submitted that a combination of the "physical and environmental factors" to which I have referred in [180] combined would cause this Court to find that it was not unlikely that the truth of the admissions were adversely affected.
20. Submissions were then made that, in the event that the statements were admitted, then the applicable principles must be applied. I will refer to those principles shortly.
21. Accepting as I do that, at the time of the ERISP the accused was still experiencing a level of distress and that at a later point in the ERISP she expressed a desire to go home, I do not consider that the answers by the accused in question occurred in circumstances such as to make it unlikely that the truth of the admission was adversely affected within the meaning of s 85(2).
22. I take into account that the ERISP commenced at 12:36am on 16 January 2012 and terminated at 1:58am. She was asked a large number of questions with the interview effectively finishing at Question 558.
23. A reading of the ERISP does not reveal that the accused had any particular difficulties in understanding or responding to questions asked of her. In general terms the answers appear to be responsive to the point or points of the questions asked. The answers which the Crown contends were lies related to questions as to the disharmony in the relationship and issues as to verbal and physical abuse in the course of the relationship, including in particular the accused's conduct towards the deceased on 15 January 2012 in terms of arguing with him, and swearing at him. There was a series of questions which raised with the accused detailed inquiry on such matters. It is evident from the ERISP that the accused understood the topics or subject matters to which the questions were put to her on a repeated basis and she persisted in her denials of having engaged in either abusive conduct towards the decease (both physical and verbal abuse) raised by the questions.
24. Whist it is also accepted that the evidence indicates that the accused was an alcoholic and that having consumed alcohol on 15 January 2012, she would to some extent be affected by having done so there is no suggestion in the course of the ERISP that the accused was manifesting any signs or difficulties associated with her ability to participate in the ERISP and to understand and to respond to questions. I do not consider that the fact that the accused was an alcoholic and had consumed alcohol constituted circumstances which impacted adversely upon the accused. In summary, I am of the opinion that the circumstances in which the admissions made were such as to make it unlikely that the truth of the admission was adversely affected. In other words, I do not consider that the onus has been discharged to show that those circumstances impaired or affected the accused in an adverse way.
25. I have concluded that the evidence of the answers given by the accused in the course of the ERISP upon which the Crown relies as lies and evidence of consciousness of guilt, is admissible as lies. In those circumstances it is necessary that I direct myself in relation to the principles that apply to evidence of lies as consciousness of guilt.
26. In that respect, I note the following: 1. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. This, of course, distinguishes the situation in which a person is simply mistaken or perhaps confused. 2. In determining whether the answers given in the ERISP by the accused upon which the Crown relies constituted lies, reference is to be made to the evidence of witnesses who gave evidence as to the accused's conduct, in particular, prior physical abuse of the deceased by the accused (Ms MacDonald and Ms Mulheran) and to evidence of the witnesses called in the Crown case who gave evidence of hearing the accused shout abuse and swear at the deceased during the course of 15 January 2012. On the basis of this evidence I am satisfied that the answers given by the accused to the questions contained in the ERISP to which I have referred deliberate falsehoods or constituted lies. 3. It is necessary that I direct myself to the care with which the task of deciding what significance, if any, the lies have in the proceedings. 4. Before I may use the evidence of lies as some evidence of the accused's guilt there are two further matters to be observed: 1. The first is that I must find that what the accused said and which amounts to a lie or lies relates to an issue that is relevant to the offence that the Crown alleges the accused committed. It must in other words relate to some significant circumstance or event connected with the alleged offence. The Crown says that it is relevant because the answers given were deliberate, that they related to events of that day and the previous days and that they relate to a material issue, namely, the violent, aggressive and abusive behaviour of the accused towards the deceased. 2. I must find that the accused told the lies because she feared that telling the truth might reveal her guilt in respect of the charge she now faces. In other words she feared that telling the truth would implicate her in the commission of the offence for which she now faces because it would indicate that she had been violent and aggressive towards, and abusive to, the deceased. 1. And finally, the lie or lies as I have indicated must be established as such by evidence independent of the admission or any admission made by the accused.
27. As I have earlier indicated, great caution must be exercised before it is determined that lies constitute evidence of consciousness of guilt, bearing in mind that people do not always act rationally and the telling of a lie can be explained in other ways than consciousness of guilt, for example, embarrassment, panic or to escape an unjust accusation. In particular, I also observe the need for caution on the basis discussed in R v Sutton (1986) 5 NSWLR 697, 701.
28. I further remind myself and take into account that though lies may be taken into account as evidence of consciousness of guilt they cannot prove guilt on their own. They may be considered along with all the other facts that the Crown relies upon and which I find have been established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. Although as I have stated the whole of the evidence must be considered, the issues that have been the subject of extensive expert evidence, as well as the accused's credibility, are central to the determination as to whether the Crown has proved beyond reasonable doubt the elements of the offence of murder or the alternative offence of manslaughter.
29. Taking into account the matters to which I have referred and the principles to be applied, I have concluded as I have indicated that the accused's answers in the ERISP relied upon by the Crown were lies and constitute evidence of consciousness of guilt.
30. In so concluding I have given particular attention to what I consider to have been the existence of the necessary link between the accused's conduct in relation to the answers she gave to questions in the ERISP and the circumstances associated with the death of the deceased.

CONCLUSIONS

1. In determining whether the Crown has discharged the onus of proof the primary question is whether or not the evidence in the Crown case establishes to the requisite standard that the act or omission of the accused caused the death of the victim, in this case the deceased.
2. In the event that the evidence does establish that element of the offence of murder, it will be necessary to determine the offence of murder, that is to say the issue as to whether the accused stabbed the deceased. I proceed to determine the issue as to the state of mind of the accused, namely, whether any act or omission was done by the accused with the intention to kill or do grievous bodily harm to the deceased.
3. As to the medical evidence, there is essentially no dispute, as I have indicated, between Dr Beer and Dr Deflou either as to the findings or the analysis undertaken by Dr Beer. Dr Deflou stated that the autopsy appears to have been professionally and competently performed, and there was a detailed description of the various abnormalities. Dr Deflou stated as to the cause of death "In my opinion, death is the result of a stab wound to the thigh, with associated injury to the femoral artery and vein": at [13]. Additionally, in relation to the "mechanism of injury" Dr Deflou stated: "I agree with both Dr Beer and Dr McIntosh that most likely the stab wound to the thigh was inflicted in a stabbing motion by another person. However, in my opinion it remains entirely possible for the injury to have been sustained by the deceased falling or stumbling in some way onto the knife while it was resting against the log …"
4. Dr Deflou then set out the grounds for that opinion in para [14]. In a case such as the present it is not sufficient for Dr Deflou to say there was an alternative and reasonable possibility unless there were facts established in evidence to support that suggested conclusion or hypothesis. I turn to what I refer to firstly as affirmative findings.

(i) Affirmative Findings

1. The findings made by Dr Beer on his autopsy examination which are supportive of a stabbing action include: 1. The trajectory of the knife wound tracking upwards at an angle of approximately 45 degrees. 2. The neatness of the wound and its width of 38mm (the same as the widest point of the blade of the knife) was consistent with a stabbing action. 3. The nicely "shelved appearance" of the wound going upwards. 4. On the autopsy examination, the wound, its structure, that it looked very much like a stab wound as against accidental wounding according to Dr Beer at T 113:30-31. 5. The wound was consistent with someone located at a lower level (sitting or standing below the deceased), thrusting the knife upwards: Dr Beer at T 114:7-25.

(ii) Facts Inconsistent with the Accused's Version

1. The facts inconsistent with the accused's version included: 1. The entry point of the blade of the knife on her version would have been expected to have been horizontal into the thigh or tracking downwards: Dr Beer at T 111; T 118:20-25. 2. If the deceased fell forwards with the knife entering at the horizontal level and then trending upwards Dr Beer stated there would not in that event have been the "nice shelved" appearance to the wound seen on autopsy: T 112. A movement forward and falling on the log as shown in photograph 3, Tab C of Exhibit A, would have destroyed or upset the "nice shelving" seen on autopsy: Dr Beer at T 118:30-34. 3. There is difficulty in explaining how, if the incident involved the deceased tripping and falling onto the knife, the knife wound had then proceeded upwards at an angle of 45 degrees towards the groin as found at the autopsy: Dr Beer at T 112:19-25; T 118:39-41. 4. If there had been forward movement upon falling on the log, the wound would have been wider than that revealed on autopsy (the wound in fact, as I have earlier noted, was the same width as the widest part of the blade of the knife (37-38mm)): Dr Beer at T 100:35-40. 5. On the scenario of the knife positioned against the log, if the deceased fell on the log, upon falling the knife would have then moved with the forward movement, in accordance with the movement of the log. On that scenario, Dr Beer stated, one cannot envisage the knife thrusting upwards at 45 degrees as found on autopsy: Dr Beer at T 113:20-25. 6. On Dr McIntosh's analysis, with forward movement associated with falling on the log, only a small amount of the tip of the knife would project above the log. It could not have produced a wound of the depth of 95mm: T 143:15-20. 7. On the accused's version it would be expected that the fall on the log would have caused bruising and/or abrasions. There were no injuries found on autopsy other than the fatal wound.

(iii) Findings 1. I determine that, as to the relationship between the accused and the deceased on 15 January 2012, there is a very large disparity between the accused's account and that of the witnesses who gave evidence as to what they saw and heard. Though asked a number of question in the ERISP as to whether there was argument, and swearing throughout the day between the accused and the deceased, the accused maintained her denial that that had occurred. The accused's persistent denials during the ERISP were false and deliberately so. They constituted falsehoods in relation to a significant fact, namely, her attitude and behaviour towards the deceased on the day that he suffered the fatal injury. I have earlier indicated the caution that needs to be taken in treating those answers as evidence of consciousness of guilt. Aside from that, the false answers significantly undermine the accused's credibility as a witness of truth. 2. On the autopsy examination, the central finding was a clean stab wound tracking in an upwards direction at an angle of about 45 degrees, 38mm in width (being the widest part of the knife blade). In Dr Duflou's report on the question of a reasonable possibility that the deceased's injury was sustained by falling onto the knife, there was no evidence of analytical examination made or referred to by Dr Duflou in his report as to how an upwards tracking wound at an angle of 45 degrees could have occurred by the deceased tripping and falling on the knife. Unless the upwards tracking wound as described by Dr Beer could be reconciled with a fall, no basis was established for an alternative reasonable or rational explanation or hypothesis. Dr Duflou did not identify any fact or process that would enable the abovementioned central finding of Dr Beer to be so reconciled. There, in other words, were no objective facts or matters established in evidence that were identified by Dr Duflou which would support any reasonable alternative possibility as he asserted may exist. In so saying I do not overlook answers he gave in oral evidence seeking to explain how it might be that there is an alternate possibility. Those answers as I have stated, however, were given in circumstances where, firstly, he did not identify or explain the process by which he had arrived at his opinion, as given by him in oral evidence, but not in his report, and, secondly, how any alternate possibility suggested by him can be reconciled with the objective facts found on autopsy and in accordance with the findings I have made. 3. The particular matters referred to by Dr Duflou, in particular at [34] of his report, do not constitute an analytical examination of the facts proved in evidence. In particular, those matters to which he referred in para [14] of his report do not address the findings at autopsy (including the finding in (2) above) or explain how the matters he addressed in para 14(a) to (j) of his report could leave open a reasonable possibility of wounding by accident. 4. There were no physical signs of injury (abrasions or bruising) arising from the deceased falling on the log as Dr Beer considered would be expected from a fall. In coming to that conclusion I have had due regard to Dr Duflou's evidence as to the possibility that by reason of a fall by the deceased on muddy ground with clothing, that one would in those circumstances not expect to see such signs of injury. His evidence however did not address the point raised by Dr Beer, namely, that if the deceased fell on the log, then in those circumstances one would expect to find physical signs of injury.

1. In relation to events in the course of the relationship between the accused and the deceased I conclude as follows: 1. The relationship between the accused and the deceased had been over a period of some months a volatile one in which the accused had been verbally aggressive towards the deceased. 2. Throughout the relationship both the accused and the deceased were alcoholics. Their excessive drinking correlates with and at least in part explains a pattern made up of sudden eruptions occurring in their relationship involving abuse followed shortly thereafter by a cessation of hostilities and apparent harmony. 3. The prior incidents of physical violence by the accused towards the deceased as described in the evidence of Ms McDonald and Ms Mulheran, occurred in circumstances of spontaneous outbursts of anger and/or frustration or sudden loss of control in the accused. They were not in any way premeditated or planned acts of violence. 4. The volatile nature of the relationship as I have described it manifested itself on 15 January 2012. 5. There is no evidence of any motive in the accused to inflict death or grievous bodily harm upon the deceased. 6. And finally, having considered the whole of the evidence, I am satisfied beyond reasonable doubt that the accused inflicted the fatal stab wound to the deceased.
2. The Crown case was premised upon a particular set of facts, namely, that prior to the incident the accused was in the seated position using a knife to cut vegetables for an evening meal. (I note the accused's answers in the ERISP that she was sitting near the scene of the incident at the time it happened: ERISP Q/A 39, 264 and 275.) The accused entered the tent, and on the Crown case an argument ensued and the accused lashed out in an upwards movement from her seated position. This set of facts is far from the not-uncommon case wherein a person armed with a knife, whilst standing and engaging in a confrontation with another, uses a knife as a weapon with forethought and a specific purpose to kill or wound.
3. On the Crown case the accused's reaction occurred in the course of using the knife initially for an ordinary domestic purpose, namely, the preparation of food. The accused's reaction at that time in moving the knife in an upwards motion above her in the direction of the deceased, though unlawful and dangerous, exhibited features characteristic of a spontaneous reactive action, though one which carried with it an appreciable risk of serious injury, but devoid of any actual intention to inflict grievous bodily harm. In other words, for reasons I have given, in my opinion, this is not a case where intent to cause grievous bodily harm can be said to be self-evident in the stabbing. On a consideration of the whole of the evidence I am not satisfied beyond reasonable doubt that at the time of stabbing the deceased the accused had an intention to kill the deceased or to inflict grievous bodily harm upon him.
4. In those circumstances it is necessary to consider the alternative offence of manslaughter. It is necessary that I direct myself in relation to the principles that apply to such an offence.

Verdicts

1. I return the following verdicts: Murder: Not guilty. Unlawful and dangerous act manslaughter: On the limited evidence available, the accused committed the offence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2016