58 Van Tac Nguyen was a friend of the appellant. On the morning of 13 May 2001, the witness went with his wife to the appellant's flat at Villawood. After spending between one and two hours there, the witness then went to Flemington markets with his wife, the appellant and the appellant's daughter, Jasmine. The appellant's girlfriend, Ms. Zizius did not go with them to the markets. The appellant had told the witness that she was asleep. Upon returning to the appellant's flat between 1.00 pm and 2.00 pm, the appellant spent about five minutes washing dishes before the witness' wife told him that she would finish washing them. The witness was testing an electric alarm clock he had bought and saw the appellant walking around the flat. He was still testing the clock when the appellant suddenly "burst out of a door … and yelled out, 'Call an ambulance, call an ambulance, Karol is dying'". The witness had not heard any noise before this happened. The witness responded that he didn't know the phone number for the ambulance. The appellant ran out the door and yelled at some people to come in. The witness then ran into the room and saw Ms. Zizius lying with half her body in bed, her legs on the floor. He saw a steel rod the size of a chopstick on the bed about 20-30 centimetres away from her head. He pushed it onto the floor. A neighbour came to help the witness place Ms. Zizius fully on the bed and together they tried to resuscitate her. When the ambulance officers arrived, the witness went into the lounge room. At this time, the appellant was "outside the bedroom. Walking up and down, worried". After the ambulance officers carried Ms. Zizius away, the witness asked the appellant what happened. The appellant told him in Vietnamese that "She was angry with me, she throw that at me and it bounced back and hit her". The appellant then left to follow the ambulance.
59 Chuyen Thi Nguyen was the wife of Van Tac Nguyen. She said that on the morning of 13 May 2001, she went with her husband to the appellant's flat at Villawood. She did not see Ms. Zizius there. When she asked the appellant where his girlfriend was, he told her that she was still asleep. The witness went with her husband, the appellant and the appellant's daughter to Flemington Markets. Upon returning to the appellant's flat, the witness saw that the appellant was washing glasses and dishes and told him to let her do that. The appellant walked away and the witness washed the dishes and began preparing food. She did not pay attention to where he was. While she was preparing the food, she heard the appellant call out in Vietnamese "Come here and help, she's fainted" or "Come here and help, she's dying". She had not heard any sounds of people arguing before she heard the appellant call that out. She then saw her husband run into the bedroom and heard a voice asking an ambulance to be called. She told the appellant to call Ms. Zizius' mother. She picked up the phone and handed it to him and he made the call. The witness said that the appellant kept running up and down the stairs while waiting for the ambulance officers to arrive, swearing and cursing that it was taking so long. When the ambulance officers arrived, she saw the appellant running in and out of the room where the ambulance officers and Ms. Zizius were, and up and down around the house. She also saw her husband going in and out of that room. The ambulance officers then took Ms. Zizius away.
60 James Abbott lived in the flat below the appellant. He was sitting on some stairs outside the block of units with his wife, daughter and two granddaughters when he saw the appellant arrive home shortly before 2.30 pm. About five to 10 minutes after that, he saw the appellant run down the stairs with a mobile phone in his hand and give it to his wife, saying "Ring the ambulance, I think she is die. She is dying". The witness asked the appellant "What's the matter?" and the witness replied, "She threw the aerial at the wall and a piece went into her head". The witness then ran up the stairs and into the room where Ms. Zizius was lying on the bed. He said that her body was fully on the bed and that she was shaking. He saw a piece of the TV aerial on the bed near her. He did not see any blood. He and an Asian man tried to resuscitate her. The appellant was very upset about how long the ambulance was taking to arrive. He said that the appellant wanted to take her downstairs for the ambulance, but the witness said, "No, leave her there, she'll be right now until the ambulance comes".
61 Jeanette Abbott lived with her husband in the flat below the appellant. She was on the steps outside the building when she saw the appellant arrive home after 2.00 pm on 13 May 2001. About 10 minutes after she saw him arrive home, the witness saw the appellant stick his head out from upstairs and call "Ring ambulance, ring ambulance, Karolina dying". The appellant then ran down the stairs and gave the witness his mobile phone and ran back upstairs. She called 000. Shortly afterwards, the appellant stuck his head out and said something like, "Are they coming? Ring again". The witness then asked "What's wrong with Karolina?" and the appellant answered, "An aerial gone through her head. I think she has been electrocuted". Later in her testimony, the witness said that "he didn't say she did it, or he did it - he just said, 'Pulled aerial out the head', because he was not very good with English".
62 Cassandra Abbott was visiting her parents, James and Jeanette Abbott on the afternoon of 13 May 2001. During some visits to her parents' home in the period before 13 May 2001, she had heard arguments coming from the appellant's unit, in the form of yelling, screaming and banging, as if things were being thrown around or smashing. Such arguments would last half an hour or longer. After 2.00 pm, as she was sitting on the steps outside the building, she saw the appellant come running down the stairs with a mobile phone in his hand, which he passed to the witness's mother. The witness and her father went upstairs and into the bedroom. She saw Ms. Zizius lying on the bed, shaking, with one leg hanging off the bed. The witness saw the television aerial on the bed next to her. Somebody asked the appellant "What happened?" and he "said that she couldn't get the TV to work, the picture, so she pulled the aerial out and it hit the wall and come back and hit her in the head". The witness noticed that the television in the room was on, but that it was "all fuzzy … all hazy; no picture".
63 Krystyna Zizius was the mother of Ms Karolina Zizius. She testified that Ms Zizius had been living with the appellant for roughly three years, on and off. She was right handed and although she was tall, she was weak. The witness described her as a "no muscle girl". She agreed her daughter had a problem with heroin addiction. On 13 May 2001, the witness was at her home when she received a call from the appellant. He was very upset. It was a quick conversation. He yelled, "Mum, come quick, I think Karolina is dying". The witness left immediately and arrived at his flat three to four minutes later, just before the ambulance officers. She saw her daughter lying completely on the bed, shaking. She did not see any blood. She testified that the appellant "was yelling something happened to her. He don't know. He been … saying about the antenna … that she chucked somehow antenna and she fall down, or something like this. He don't know. He been saying like - he don't know, and he said, "I don't know, but something happened". She agreed that when the ambulance officers were treating Ms. Zizius for drug overdose, the appellant was screaming and shouting words like, "Don't worry about the drugs, help her, she has an injury". The witness identified her daughter's handwriting in a notebook later found in the bedroom that said: I was planning to kill myself and told Centrecare a lot of my sad and other thoughts.
64 Darren Pedemont was in the first ambulance to arrive at the appellant's flat. The appellant, who seemed to have limited English said "Girl on bed. Girl on bed." The witness went into the bedroom and saw the patient lying in an agitated state on the bed. Her eyes were rolling, she was hyperventilating and unable to speak; all of which indicated some form of brain injury or a hypoxic state. The patient's posture indicated brain injury. The appellant said, "Hurry up, hurry up. Help her". The appellant appeared so agitated that the witness's ambulance officer partner told him to "Slow down, slow down". The witness asked what happened, and the appellant replied, "throw aerial, hit wall, throw aerial hit head" and said that when she threw the aerial, he left and closed the door. The appellant produced two 30 centimetre rods from the floor beside the bed and held them horizontally. He then gestured as if he removed the rod from the head. He said something similar to "Pull out, pull out". The witness noticed some marks on the patient's arms that were similar to puncture marks from intravenous drug use. Another ambulance officer asked the appellant, "Has the patient been using drugs today?" The appellant replied, "Yes, roughly, 11 o'clock". The witness began to ventilate the patient and the appellant left the bedroom. Upon further examination of the patient, the witness found a slight little skin tear about one centimetre above the left ear.
65 Jacquelyn Christian was an ambulance officer who was in the first ambulance to arrive at the appellant's flat. The patient was lying on the bed and appeared to be unconscious. She asked the appellant what happened and he said "something to the effect that a TV aerial had hit the patient in the head". At some stage he pointed to two pieces of rod. The witness enquired several times as to what had happened and the appellant, "got angry with us and said, 'Just treat the patient' and again … that the aerial had hit her in the head". He also showed the witness a small wound to the patient's head. The witness believed that she asked the appellant how the rod came out, but could not say whether she received an answer. A lady identifying herself as the patient's mother told the witness that the patient had hepatitis. The appellant told the witness that she had some heroin at 11.00 am that day. The patient did not respond to treatment for narcotic overdose, indicating that there was another cause for her unconsciousness.
66 Peter Goodwin was a paramedic with the Ambulance Service of NSW. He was in the second ambulance to arrive at the appellant's flat. He observed another ambulance officer intravenously administer treatment for narcotic overdose. There was no response, indicating that the patient's unconsciousness was not due to narcotic overdose. The witness did not at any stage observe any injury to the patient, but noticed that she exhibited an unusual posturing, indicative of significant head injury. It was explained to him that there was a slight wound above her left ear, which had been detected by the treating officers. The witness drove the patient to Liverpool hospital.
67 Linda Lodge was in the second ambulance to arrive at the appellant's flat. As she was walking down the hallway to the bedroom, the appellant, who was obviously agitated, said something along the lines of, "Hurry up and help her". The witness administered a drug to treat narcotic overdose, but the patient did not respond to this treatment. On closer inspection, the witness found a puncture wound behind the left temple area. She then asked the appellant if the aerial had fallen out or had been pulled out. The witness did not recall any verbal response from the appellant, but said that he indicated that it had been pulled out by putting both hands beside each other as if they were holding or grabbing something.
68 Geoffrey Fudge was the last paramedic to arrive at the appellant's flat. He observed the other paramedics attempting to revive the patient. The witness noticed that the patient displayed a response consistent with brain injury. Another officer showed the witness an injury above the patient's left ear. Another officer showed him the TV aerial at the foot of the bed. Whilst the patient was being treated, the appellant was constantly walking in and out of the bedroom. He was agitated and speaking very loudly. The witness formed the impression that he had limited English skills. He asked him what had happened. The appellant "indicated the patient had left the house that morning, had a hit of heroin, had an argument with her boyfriend, returned home and picked up a piece of TV antenna and hit herself on the side of the head and then fell unconscious on the floor". The appellant made a gesture as if to demonstrate: "He picked up the piece of antenna and flicked himself towards the head". The appellant travelled to Liverpool hospital with the patient. The witness called the police and waited at the flat until they arrived and took them to the bedroom.
69 Senior Constable Simon Clark attended the appellant's flat at around 3.00 pm on 13 May 2001. The witness spoke to the appellant at Liverpool hospital, who told him "Karol got the antenna and hit herself on the head with it". At the same time, the appellant indicated with his hand made into a fist, held to the side with the blunt end of the fist going towards the side of his head. The witness then had a further conversation with the appellant, which was recorded in his police notebook. After recording the conversation in his notebook, the witness read it back to the accused several times. The accused signed the entry in the notebook, which read in part:-
"When I got home Karolina Zizius, my girlfriend was there and she started to argue with me. She was arguing with me because I left her at home alone, and I did not wake her. And she want heroin and I had none. Karolina got upset at me and cucked (sic) [chucked] the antenna at me. I running out door. Part of the antenna come out and hit door and it come back and hit Karol in head. Karol fell down and did not move. I say 'Karol, Karol' but she not wake. I call my friend and tell him that Karol die that is when we call ambulance."
70 Constable Paula Scott was present at Liverpool hospital when she heard Constable Clark ask the appellant what happened at his flat that afternoon. She heard the accused reply, "Karol got the antenna and hit herself on the head with it" and saw him make a gesture with his hand in a loosely formed fist, moving towards the side of his head around his ear. The witness was present during the conversation between Constable Clark and the accused and testified that his notebook entry of the exchange was an accurate record of what was said by the accused.
71 Detective Senior Constable Garth Hazell interviewed the appellant on the evening of 13 May 2001 at Fairfield Police Station. The following is an extract from the ERISP, which was conducted through an interpreter:-
"A 42: Yeah, the thing is when she upset and she took the antennas and chucked it. By that time I ran out, I ran out the door, so I didn't know, but I heard the noise and I turned back then I saw it happen like that ...
A 43: Yes, [Senior Constable Clark's notebook statement] is right, but about the antenna came and hit the door, I didn't know.
Q 61: [the injury is described] Can you tell us anything about the injury?
A 61: I didn't see it.
Q 62: Do you know how she received that injury?
A 62: No.
A 64: Like, I mean, she became upset at me and she just took the antenna and chucked, chucked it at me.
Q 66: How did the antenna end up lodged, or penetrating her skull?
A 66: I didn't know, because when she took the antennas and chucked it at me, I ran out, but after that I heard the noise, that's why I turned back and I found out thing already happened.
Q 70: Where was she when she threw the antenna at you?
A 70: She was sitting on the bed.
Q 71: And where were you when she threw the antenna at you?
A 71: I stepped out of the door because she asked me about heroin and I said, No I didn't.
Q 72: If she threw the antenna at you, how did she receive an injury to her head?
A 72: Yeah, because when we were in the room and she asked me for heroin, then I said that I had none and she became upset and then I ran out, I stepped out the door and I heard a noise, that's why I came back, then I saw what happened?
Q 74: Did she have any injuries to her head?
A 74: I have no idea. I saw, I saw the antenna was where, near her head, so I took it and I threw it [on the floor]."
72 Shortly after the interview, the appellant and interpreter accompanied the witness back to the appellant's flat while a search warrant was executed. The walls in the bedroom appeared to be cement rendered, the roof appeared to be of a gyprock construction and the door leading from the hallway to the bedroom was made out of timber with a hollow centre. The frame around the door was metal, as was the doorknob. Photographs taken of the bedroom reveal a slightly curved mark on the bedroom wall, a mark on the door, and a blood smear on the bed.
73 Gordon Bullock was present during the execution of the search warrant at the appellant's flat. He saw that there was an indentation on the bedroom side of the door that appeared to be about level with the top of the bed.
74 Nicole Radcliffe was a psychologist employed by CentreCare. Ms. Zizius began seeing her on 3 October 2000 on account of her heroin use. On 19 December 2000 she told the witness that she had been suicidal in the past because she could not earn enough money. On 29 January 2001, she told the witness that she had been feeling very sad and had been thinking a lot about killing herself and although she had no specific plan, she had thoughts of using a gun, pills or hanging herself. She told the witness that she would however not kill herself because she did not know how to do it properly and did not want it to go wrong and she would go to hell if she did. The witness's professional assessment as at 29 January 2001 was that Ms. Zizius was not in fact suicidal. On 8 February and 18 April 2001 when the witness saw her again, Ms. Zizius was no longer feeling suicidal. There was never any mention of any violence in her relationship with the appellant.
75 Dr. Neil Langlois was a forensic pathologist who conducted an examination of the deceased two days after her death, 11 days after the incident at the appellant's flat. He observed that she had a small wound that was six centimetres above and 1.5 centimetres behind the left ear hole. The wound measured 0.7 by 0.5 centimetres. There were also bruises on her right eyelids and bruising in very fine spots on both upper arms. The witness said that the bruises on the eyelids could be consistent with having been caused by the antenna. The witness noticed that there was a "defect, or a hole, a window in the bone on the left side where the bone flap had been removed". He said that the most striking feature of the wound to the head was that the outer surface of the skull bone was extremely punched out and very smooth and well defined and completely circular. He said it was his experience that to actually puncture the skull in this way requires velocity, such as seen in gunshot wounds to the skull. As the television antenna had a blunt end and just a small amount of bevel, it would have taken "extreme force" to produce such a hole in the skull. (By contrast, only a mild force would be required to inflict the sort of bruises seen on the deceased's eyelids.) The wound tract was three centimetres long, and perfectly horizontal, parallel to the base of the skull, without any evidence of arcing or tumbling of the intruding object, and the bone fragment was situated at the end of the track. The witness thought this was highly significant because the brain itself is very soft and will offer no resistance to the extreme force that would be required to drive a blunt object through the skin and the skull:-
"Once the metal rod will travel through the brain, it could even exit through the other side like a bullet, unless something is there to constrain or stop it."
76 He said that "the fact that it is limited to just three centimetres of travel within the brain itself suggests that something was restricting its movement, for example the hand holding it". In cross-examination, he was asked whether such an injury could be caused where a person holding the antenna three centimetres from the end suddenly fell back and fell onto the object. The witness said that:-
"there may be sufficient force to make it enter the skull at that point. Of course, one has to contrive … the extraordinary coincidence of holding it three centimetres from the edge and gripping it well enough so that one has fallen on it and does not lose the grip and drive it through the brain … it would be a very firm grip around the rod."
77 Thomas Gibson was a biomechanical engineer whose area of expertise involved looking at the actual forces and motions of an injury, so as to determine the cause. From the report of Dr. Langlois, the CT scan and the bone fragment (Exhibit R), the witness observed that the motion of the object that penetrated the brain was in a straight line from the point that it penetrated through the skull bone all the way until it stopped within the brain. The injury was consistent with having been caused by the television antenna (Exhibit L). The witness calculated that the force required to penetrate the skull in such a clear, circular shape was between 700 and 800 newtons, which is equivalent to the force that someone of 70-80kg would apply to the floor when standing up.
78 The witness performed some tests to see whether it was possible that the antenna may have bounced off the door, causing the same angle of mark found on the appellant's bedroom door, and in such a way that it may still have had enough velocity to have penetrated a skull. He concluded that if the aerial had been thrown with enough force to penetrate a skull it would have first fully penetrated the door. He also conducted tests to see if the rod could have rebounded from another surface, such as the ceiling, door frame, door handle, or concrete-rendered wall. He found no other evidence of damage to these structures consistent with being caused by the rod. He said that if the rod had rebounded from one of those structures with the velocity to penetrate a skull, then a mark would have been discerned on them. He concluded that, "the explanation of a rebound penetrating skull was extremely unlikely".
79 The witness also performed tests to see whether the wound might have been self-inflicted. These tests were conducted with a female test subject, who the witness described as being quite a strong woman, and of the approximate weight and height of the deceased. The tests revealed that it was very difficult for the test subject to apply any load at all with the left hand and she was not able to create sufficient velocity using her left hand to cause the injury. He said that it was "sort of possible" for her to have caused it with her right hand, "but it would be very difficult to do it because it requires … quite a long, complicated swing to get it in that position on the head … you have got to do it in a smooth swing, or you just can't apply the load required to allow penetration to the skull". He said it was "marginally" possible for the subject to create sufficient velocity or force using her right hand to cause the injury and that for somebody who was not as strong as the test subject, it would be "very difficult". He concluded that it was "unlikely" that the injury was self inflicted, adding that it was "very difficult for the volunteer to make a nice neat linear impact" because of the tendency of the rod to rotate.
80 The witness did some calculations based on the scenario of the rod being held stationary and the deceased's head falling onto the rod. He said that "the constraints that would have to be imposed for falling on the rod were such that it would be very difficult to get the clean impact that was required … it would be very difficult to keep everything in line so that you've got the neat puncture wound that occurred … the impact would have to be such that it wouldn't cause the rod to move out of the way". He said that it was "unlikely" that the injury could have been caused either by the deceased falling off the side of the bed and her head hitting the rod, or by the rod being stuck in the bedding.
81 However, the witness agreed that whether the wound was inflicted deliberately or accidentally, it would be a difficult wound to replicate. Similarly, regardless of whether the injury was inflicted by someone else or herself, it was unusual in that there was no longitudinal rotation.
82 Anh Nguyen was the Vietnamese interpreter for the appellant during his ERISP and during the execution of the search warrant at the appellant's flat. When translating the word "chucked", as used in Senior Constable Clark's police notebook, she used the Vietnamese word "choi", which the appellant also used when answering questions. The word "choi" can mean to throw, to fight, or to oppose. She translated it as "throw" because one cannot fight an antenna.
83 Although some of his accounts of what happened were given through an interpreter, or were given by the appellant in his second language of English, which he spoke poorly, it was clear in light of Ms Anh Nguyen's expert evidence as to the contextual meaning of the Vietnamese word "choi", that his version of events was that the deceased "threw" the antenna, which then hit another surface before penetrating her skull. The effect of the expert evidence of Mr. Gibson and Dr. Langlois is to persuade me that the deceased's injury could not have been sustained in such a way nor accidentally, nor could the deceased have applied, as the appellant had said, the necessary force in the necessary manner to have inflicted the wound on herself. The suggested means by which the rod may have entered the deceased's skull and brain without the agency of the appellant are simply speculative.
84 In my view, it is to be properly inferred that the appellant applied the force necessary to inflict the injury. This leads to the conclusion that, not only did the appellant do the act causing death, but the only rational reason for the appellant having advanced the version of events he did was to provide a false explanation in order to cover up the fact that he did so and thereby inflicted the injury in circumstances of which he was conscious as inculpating him in injuring her and so being responsible for her death. I conclude from this that his act was deliberate.
85 The finding that the appellant told these deliberate lies to the various witnesses as to the cause of the deceased's injury, taken in conjunction with the expert evidence eliminating the possibility that the deceased's injuries were self-inflicted or accidental, leads me to conclude beyond reasonable doubt that it was the appellant's deliberate act of striking the side of the deceased's head with the television aerial, which caused her death and that he was conscious of having so acted.
86 I am thus able to conclude that the appellant deliberately struck the deceased with the aerial and that it was that act which caused the aerial to penetrate her skull and brain and cause her death. However, for the conviction of murder to be sustained, it remains necessary to consider whether that act was accompanied by an intent to kill or to cause really serious bodily harm, the existence of which is proved beyond reasonable doubt. There is no direct evidence of the manner in which the appellant struck the deceased with the aerial.
87 As the lies either on their own or in conjunction with other evidence do not establish the manner in which the appellant struck the deceased, so any conclusion of any specific intent must depend upon the other evidence and what inferences can properly be drawn from it. It is therefore necessary to review the expert evidence further than I have already done to ascertain whether it is open on the evidence to conclude beyond reasonable doubt that the appellant intentionally directed the end of the aerial toward that particularly vulnerable area of the human skull or that he held the aerial in a manner which would show that when he struck he was deliberately intending that the end of the aerial would penetrate the skull.
88 The aerial, which was tendered in evidence and became an exhibit, consists of a smooth metal rod of about 35 centimetres length and about 0.5 centimetres in diameter. Because it is this thin and smooth, it is obviously difficult to grasp firmly. It is comparatively rigid in nature.
89 Dr. Langlois, in addition to the evidence to which I have already referred, gave evidence that the end of the rod was blunt but with a slight bevel; that the puncture hole was completely round, that the end of the rod had struck the deceased at a point where the thickness of the skull was usually about 0.2 (presumably the witness was referring to centimetres); that the path of the track went straight into the brain perpendicular to the skin and travelling horizontally to the base of the skull without deviating to the front or back or up or down in a very straight action, left to right, horizontally and straight; that the brain offered as little resistance as perhaps a jelly. It was Dr. Langlois' opinion that, even given the vulnerable area of the skull, extreme force was required to drive a blunt object through the skin and into the skull, but little force for it to continue on into the brain. It was necessary, he thought, for something to constrain or stop the rod proceeding further into the skull after the initial puncture of the bone. For it to have penetrated no further than it did.
90 He referred to some bruising to the right eye as being an injury consistent with the right eye of the deceased being struck with an object of reasonably thin dimensions and was shown the portion of the aerial tendered in evidence, agreeing that its curved surface and its dimensions were such that it was an object that might have caused the injuries to the right eye. He had also described conjunctival haemorrhages, and an additional distinct aspect to the bruise. He was of the view that the aerial, which was shown to him, was of the kind that might have caused those injuries and that all those injuries might have been inflicted at the same time by a single blow.
91 He noted that the present injury had no longitudinal rotation or arching or tumbling evidence of the object and that it was necessary, in his view, that there be some feature of the injury which caused the rod to stop penetrating further into the brain. He said that the injury was consistent with the rod having been held with only a bit of it protruding and that if the hand holding the rod was very firm and somehow or other the rod got through the skull, that hand would be enough to stop the rod going any further. He did not ascribe to that scenario any degree of probability in his evidence.
92 The doctor described the force necessary in cross-examination as "I think it would take more than a little force to drive a blunt object through the skin". He referred to the prospect of the injury having been sustained on a person falling, as involving an extraordinary coincidence and the rod being held three centimetres from the end and gripped firmly enough to prevent further penetration.
93 Mr. Gibson gave evidence from the engineering viewpoint of the cause of the injuries. He gave evidence that the degree of force necessary to penetrate the skull with the rod was about three quarters of what would be exerted by a 100 kilogram person standing on the floor, that is, that it penetrated by reason of force of approximately that which might be exerted by a body weight; that the rod had to be moving in a straight line from the point that it penetrated through the skull bone all the way until it stopped within the brain. When asked further questions about the degree of force, he concluded that, for a full penetration of the skull, a force of only some 400 to 410 newtons, rather than 700 to 800 newtons, was necessary. He indicated that a smooth swing would apply the load required to allow penetration to the skull and that the penetration of the skull could have been stopped by some gripping of the rod.
94 Mr. Gibson also gave evidence that the mass of the head would mean that the head had only to move a short distance to have the necessary kinetic energy, impacting on the rod if it was held inflexibly, for the rod to inflict such a wound, if the vulnerable point of the skull came into collision with the end of the rod. He gave evidence that it was difficult to make a neat linear wound deliberately and difficult for a neat linear wound to occur accidentally. He was asked:-
"Q. This was an unusual injury, because of that lack of rotation, if in fact it was deliberately inflicted, is that right? A. I don't think you even have to add the deliberately inflicted. It is an unusual injury."
95 He explained this reply referring to the body moving in a series of arcs. He also gave evidence:-
"Q. In fact, if it was done in a moment of passion, you wouldn't expect it to stop three centimetres in the head - if it was done with force and passion, would you expect it to go right through the brain? A. Yes, we discussed that earlier, in terms of it, if it was done by somebody holding the rod, then there had to be some physical limit to stop it continuing."
96 He had expressed the view that the injury was most unlikely to have been sustained by the deceased falling on the rod, whether by falling off the bed or the rod being jammed into the bed. He postulated that it was quite unlikely that the injury had been sustained by the head falling on the rod because one would not have expected the neat puncture wound. But his evidence did not rule out movement of the head as contributing to the sustaining of the injury. He referred to the flexibility of the neck and the prospects of the head rolling as militating against the suffering of such a clean puncture wound being occasioned by the deceased's head falling onto the end of the rod.
97 The evidence, in my view, leaves open many relevant possibilities. It does not establish that the accused was holding the rod in such a way that a short portion of it projected beyond the upper most portion of his fist and he used it in a stabbing motion into the vulnerable area of the deceased's skull and brain. Such a movement might well have indicated an intention to kill or cause serious injury. Indeed, it is not open on the evidence to know in what manner he held it or whether he was holding the rod in such a manner as to use the longer portion of it to strike the deceased or was holding it in the middle and his fist slipped due to the rod being so thin and smooth. I am unable to conclude there was not head movement or that in some struggle the shorter portion of the rod unintentionally entered her head when he was striking her.
98 These hypotheses I now refer to are merely to illustrate the unavailability of any positive proof of how the injury might have been sustained such as would carry with it, coupled with all the other evidence in the case, the inference of an intent to cause the deceased really serious injury.
99 Although I have described the act causing death as the deliberate striking by the appellant of the deceased with the rod, I am unable to so precisely define the manner in which that act caused the penetration of the skull as to be able to hold that it was accompanied by the requisite intention for the doing of that act to amount to murder.
100 It is for those reasons that I do not consider that it is open to find that the appellant intended that in striking the deceased the end of the aerial would penetrate her skull and brain. I take into account in this regard the peculiar nature of the injury and the location of the injury as well as its depth and its track. I have regard also to the other injuries to the eyes described by Dr. Langlois.
101 Even paying the fullest regard to the jury's views, I consider that it is not open to conclude beyond reasonable doubt that the applicant deliberately caused the aerial to penetrate the deceased's skull and brain and such a finding, in my view, would be necessary before it would be open to conclude beyond reasonable doubt there was intention to kill or cause really serious injury.
102 So I conclude that the murder conviction cannot stand since it was not open to the jury to accept beyond reasonable doubt that in the circumstances of this case, the act that caused the death of the deceased was so redolent of intention to kill or do really serious injury as to support the finding of guilt of murder(cf. Cutter (supra)).
103 The appellant submitted:-
"17. The Crown case could not prove beyond reasonable doubt that the injury causing death was deliberately inflicted in the light of the evidence of the two experts. At best, in the light of answers given in cross-examination, it placed an equal possibility on three propositions:-
(a) that the injury was deliberately inflicted by the deceased,
(b) that it was deliberately inflicted by the appellant, and
(c) that it was accidentally inflicted."
18. In order to find the appellant guilty, the jury would have had to dismiss as unreasonable the defence hypothesis. In order to do that, they would have to reject the expert evidence that the explanation as 'possible' and could not be excluded. They would have to reject the evidence that the injury would be unusual if self-inflicted and would have to interpret his evidence that it would be unusual for such an injury to have resulted from a deliberate act of a human being as being consistent with proof beyond doubt that the injury was caused solely by human hand (and there was no such evidence at all) and that the appellant was the assailant. The evidence did not have that character or capability and there was no reasonable basis for rejecting expert evidence on one issue and rejecting it on another, nor for interpreting it in a manner contrary to the words used in evidence. The jury could not, by any rational process convert the words 'possible' into 'impossible' nor convert evidence of 'possibility' into proof beyond reasonable doubt. The verdict should be set aside and a verdict of not guilty substituted."
104 However, I conclude that the evidence does persuade me the injury was caused by the appellant's deliberate act for the reasons I have given. When all the evidence bearing on the question is considered, I am not left in doubt on that issue.
105 The Crown submitted:-
"The description that the alternative possibilities were unlikely remained for the jury's assessment having regard to the totality of the evidence. The question the jury had to decide was whether alternative explanations presented as 'reasonable' in the sense that they had a doubt of that character about an element of the charge. The jury must have concluded that the alternatives did not create any such doubt."
106 Such a submission mistakes this court's role on an appeal such as this by confining the enquiry to what the jury assessed as having occurred, as does the submission made at paragraph 50 of the Crown submissions as follows:-
"The jury was aware of the competing issues in the trial. Here is no proper basis for concluding that the guilty verdict was available on the evidence."
107 The discussion found elsewhere in the Crown submissions of how the injury was inflicted I consider is highly convincing in persuading me that the appellant did strike the deceased causing her death, but for the reasons I have given, I am unpersuaded that it was open to the jury to find the intent necessary for murder.
108 It might well be the case that a reasonable person in the accused's circumstances would beyond reasonable doubt have appreciated that by striking the deceased, they were exposing the deceased to an appreciable risk of serious injury. But acceptance of this proposition beyond reasonable doubt, involves the acceptance of a number of factual matters which were not determined by the jury and on which the appellant is entitled to seek a jury's decision. The objective test of dangerousness for manslaughter is different in nature to the subjective test of intent to cause grievous bodily harm, as is made clear by the views of the High Court in Spies (supra) per Gaudron, McHugh, Gummow and Hayne, JJ. at [6], [24 - see footnote (15)], [31]-[35], [39]-[42], [44], [49]-[50].
109 Having regard to those views, I consider the appropriate course is that a re-trial should be ordered, but limited to manslaughter, (s.8(1)) as there is evidence, which, unlike that on the murder charge, is, in my view, capable of being so accepted as supporting a verdict of manslaughter although, whether it will be accepted is a matter for a jury.
110 I propose orders that the conviction and sentence for murder be quashed, an acquittal on that charge be entered and that there be a new trial limited to the charge of manslaughter.
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