SMITH v R

Judgment 1HOEBEN CJ at CL: Offence and sentence The appellant was tried before Buddin J and a jury in the Supreme Court at Sydney between 30 May and 7 July 2011. The indictment presented at trial pleaded a single count that on 3 June 1995 at Fairfield he murdered Russell Lyons. The count pleaded an offence contrary to s18(1)(a) of the Crimes Act 1900 for which the maximum penalty was imprisonment for life. 2On 7 July 2011 the jury found the appellant guilty of murder on that count. On 17 August 2011 Buddin J sentenced the appellant to a term of imprisonment with a non-parole period of 12 years, commencing 30 April 2010 and expiring 29 April 2022, with a balance of term of 6 years expiring 29 April 2028. 3On 16 September 2011 a Notice of Intention to Appeal was filed on behalf of the appellant. Thereafter, two extensions of that notice were granted. On 8 November 2012 a Notice of Application for Leave to Appeal against Conviction was filed. Two grounds of appeal were notified: Ground 1: "The verdict was unreasonable". Ground 2: "The trial judge erred in the direction to the jury with respect to the witness Mr Cross". The Crown case at trial and witnesses 4The case against the appellant was that, at about 3.30am on 3 June 1995, he was involved in an initial altercation with the deceased on a street called "The Crescent" in Fairfield, after trying to steal his wallet. During that initial altercation, three men who were described as "Maoris" or "Islanders" became involved. One of them, who was described as having "dreadlocks" assaulted firstly the appellant and then the deceased. After this altercation, the deceased ran some distance to a car-park, followed by the appellant. The appellant caught up with him, assaulted him and inflicted a head injury that resulted in his death. The Crown contended that the appellant intended to cause grievous bodily harm to the deceased, or that he caused the deceased's death while committing a crime punishable by 25 years imprisonment. 5There was no direct evidence that the appellant killed the deceased. The case against him was entirely circumstantial and was based on the following evidence. (a) DNA evidence A short distance away from where the body of the deceased was found (without any shoes on his feet) the police found some discarded Adidas running shoes on the awning of a shop which had blood on them. The shoes were well worn. DNA testing on the blood matched it to the deceased. In addition, DNA samples taken from inside the shoes were ultimately matched to the appellant in 2008 (his DNA was not held by the authorities until his arrest for a minor offence in 2007). 6It was the prosecution case that these shoes had belonged to the appellant, but that he had discarded them after stealing the shoes of the deceased which were never recovered. Further, DNA samples taken from the inside rear pocket of the deceased's pants, were also matched to the appellant in 2009. DNA from a stain above the rear pocket was matched to the appellant. It was the Crown case that the DNA from the appellant was deposited when he stole the deceased's wallet from his pocket, which was also never recovered. (b) Expert podiatry evidence An expert podiatrist, Dr Bennett, gave evidence regarding similarities in the wear patterns of the Adidas running shoes and a pair of thongs seized from the appellant in 2009 and regarding similarities in the wear patterns of the Adidas running shoes and plaster casts/impressions taken from the appellant's feet in 2009. He testified that there were features of the impressions that were "consistent with" certain aspects of the wear pattern of the Adidas shoes and "it was not possible to exclude the appellant as a probable wearer of the Adidas shoes". (c) Eyewitnesses Ian Cross and John Byrne were friends of the deceased who saw the initial altercation and heard the deceased say that the appellant had taken his wallet - referring to a man with a goatee beard. A very general description of that man was consistent with the appellant. There was evidence that, in 1995 and adjoining years, he sometimes had a goatee beard. 7During the altercation with the appellant, both Messrs Cross and Byrne saw the deceased pick up a wallet from the ground. Three men who were described as "Maoris" or "Islanders" then became involved and one of them with dreadlocks assaulted firstly the man with the goatee beard and then the deceased. Ian Cross saw the deceased running away (in the direction of the car-park where his body was later found). Mr Byrne also saw him running away and saw the man with the goatee beard following him. (d) Medical evidence The deceased died from a head injury resulting in a subdural haemorrhage. Bruising on the back of his head and the blood pattern at the location where he was found were consistent with the deceased having been kicked or hit in the back of the head when he was on the ground, although it was also consistent with other scenarios. (e) Opportunity In 1995 a friend of the appellant lived at Horsley Drive, Fairfield, not far from the scene of the murder and recalled that the appellant had stayed at her home on a number of occasions in that year. 8The appellant did not testify (and had exercised his right to silence when arrested). The defence did not adduce any evidence. 9Defence counsel in final address submitted that there was a reasonable doubt as to whether the appellant was the man with the goatee beard and even if he were (and even if he had taken the deceased's shoes and wallet) there existed a reasonable doubt as to whether he had caused the death of the deceased. She submitted that it was a reasonable possibility that the cause of death was not something done by the appellant, but a blow or blows from the "Maori" or "Islander" with dreadlocks at the place where the first altercation occurred. Witnesses at Trial 10Although the evidence at trial was very extensive, the evidence relied upon in the appeal was that of the two witnesses, Ian Cross and John Byrne, Detective Flippence who gave evidence concerning blood spatter and contact staining situate at and adjacent to where the body of the deceased was found, Dr Ellis, the forensic pathologist who gave evidence as to his findings at autopsy, Mr Jones, who gave evidence of two incidents he observed as he was operating a garbage truck and Ms Black who was driving a police caged truck and who observed an incident in the vicinity of where the altercation occurred. Ian Cross 11Mr Cross went to his father's place on the evening of Friday, 2 June 1995 when it was getting dark. His friends, John Byrne and the deceased, were already there. He started drinking beer and scotch. The others had started drinking before he arrived. He continued drinking with them for a couple of hours and then they went to the Smithfield RSL. When it closed at midnight, they went to the Fairfield RSL. They continued drinking at both those locations. They stayed at the Fairfield RSL until it closed at 3am. Messrs Cross and Byrne and the deceased then walked to a kebab shop and consumed some kebabs. 12Thereafter, the deceased decided to walk home "because he couldn't get a cab". Mr Cross saw the deceased walk across the road and when he was in front of a shop called "Crazy Prices", he heard him yell out "The c-'s got me wallet". Messrs Cross and Byrne ran across the road and Mr Cross shoved the man who was there. 13He described this man as having short, fair hair, a goatee, fair skin and being a little shorter than his six foot two inches. On the Crown case this was the appellant. When Mr Cross shoved the appellant, he fell on the ground. The appellant got up and they were arguing about getting the wallet back when he saw a wallet on the ground and saw the deceased pick it up. 14Three "Maoris" or "Islanders" came from their left, being the Hamilton Road end of the street. The appellant told the "Islanders" that Mr Cross and his friends were trying to take his wallet. Mr Cross said "No it's not. He pinched my mate's wallet". A "Maori" with long, thick dreadlocks punched the appellant in the face with his fist. 15The evidence of Mr Cross in relation to the deceased was: "Q. What happened then? A. I think Russell got hit then. Not sure. Q. Do you remember who it was that hit Russell? A. The bloke with the dreadlocks. Q. Do you remember how he hit Russell? A. No I don't. Q. Do you know where he hit Russell? By that I mean what part of Russell's body was hit? A. I think his face. ... Q. So after Russell was hit, what happened next? A. Just arguing and that and then I noticed Russell was up on the corner of the next pub, The Crescent Pub. Q. Did you see Russell doing anything up at the corner? A. Trying to get away. Q. From who? A. The dreadlock bloke. Q. And did he get away from the bloke with the dreadlocks? A. Yes he did. Q. Where did Russell go? A. Around the corner. Q. Did you see him again? A. No I didn't. Q. The man with the dreadlocks, what happened to him? A. Came back to us. Q. Where was the man with the goatee beard? A. Don't know. Q. Did you see him again that night? A. No I didn't." (T.58.23 - 59.19) 16Under cross-examination Mr Cross agreed that his memory of what had occurred that night was fresher when he spoke to the police on 24 September 1999 than when he was giving evidence at trial (1 June 2011) (T.68.42). 17Under cross-examination Mr Cross gave further evidence concerning the deceased: "Q. It was then that the Maori fellow with the dreadlocks assaulted Russell. A. Yes. Q. He punched him a couple of times? A. Yes. Q. And you could see that Russell was hurt and bleeding? A. Yes. Q. Is the next thing that you saw of Russell was that he was further down The Crescent, near the corner where The Crescent intersects with Smart Street? A. Yes. Q. So you look up, you see Russell Lyons down near that corner, correct? A. Yes. Q. And the Islander with the dreadlocks is with Russell near the corner? A. Yes. Q. You and John Byrne are still up near the area of Crazy Prices store? A. Yes. Q. And you are still confronted by the other two Maori men, is that right? A. That's right. Q. There was an argument still going on between you and Mr Byrne and the two Maori men, correct? A. Correct. Q. When you looked down the corner of The Crescent and Smart Street and saw Russell Lyons with the Maori man with the dreadlocks, you could see that the Maori man with the dreadlocks was belting into Russell Lyons? A. Yes. Q. And it was quite a savage attack by the Maori man with the dreadlocks on Russell wasn't it? A. Yes I think so. Q. You could see that Russell was bleeding? A. Yes. He was bleeding before he left us. Q. Is this the situation Mr Cross, that you then lost sight of Russell as he went around the corner into Smart Street? A. Yes. Q. You didn't see him again? A. No." (T.70.10 - 71.7) 18In re-examination Mr Cross said: "Q. You said that Russell was bleeding "before he left us". From where was he bleeding? A. His mouth. Q. How much blood was there coming from his mouth? A. Just like you know, when you cut your lip and it just bleeds down. Q. What about his clothes, did you see any blood on his clothes? A. I don't think so. Q. It was suggested to you in a question that it was a savage attack on Russell by the man with dreadlocks close to when you last saw Russell Lyons. Your answer was "I think so". Would you explain what you meant by that answer "I think so"? A. I don't understand, what do you mean by savage and just from getting hit? Q. What I'm asking you is what you understand that to mean and why it is that you've given the answer "I think so" and what you mean by that? A. (No verbal reply.) Q. Perhaps if I ask you what is it that you saw, you agreed that you saw something like the man with dreadlocks belting into Russell. What is it you saw? A. He gave him a couple more hits up in that corner. Q. What part of his body? A. Face I think. Q. You said a couple more? A. Yes. Q. By a couple do you mean two? A. Two. Q. Did you see those couple of punches connect with Russell Lyons? A. I think they did. Q. What part of his body did they connect with? A. I said the face." (T.73.32 - 74.26) John Byrne 19Mr Byrne gave evidence that at about 5pm on 2 June 1995 he and the deceased were drinking bourbon and coke, with the bourbon coming from a hip flask. Mr Cross arrived and they stayed at that location until 8 - 8.30pm when they were driven to the Smithfield RSL Club. They continued drinking at the Smithfield RSL until it closed at midnight. They took a taxi to the Fairfield RSL where they continued drinking and left at closing time, around 3am. Mr Byrne agreed that he was drunk but said that he was still able to walk. The three of them then consumed some kebabs. 20Mr Byrne went to a phone box and observed the deceased walk across the road from the kebab shop. He heard the deceased yell out "Hey, he's got my wallet". Mr Byrne hung up the phone and he and Mr Cross ran across the road. Mr Cross bumped into the appellant and knocked him to the ground. The deceased said "He wanted a smoke but then he took my wallet". Mr Byrne saw the deceased pick something off the ground and put it in his pocket. 21Three "Islander" men then came towards them from the Hamilton Road end of the street. One of the Islanders said "What is going on here?". Mr Cross said that the appellant "Was trying to steal our mate's wallet" and the Islander with the dreadlocks kicked the appellant who fell down next to the footpath. The man with the dreadlocks was of solid build. The appellant got up and said "No, they tried to take his wallet". 22Thereafter, his evidence was: "Q. When that man said what you just told us he said then, about after he was kicked, what was the next thing that happened? A. Then the man with the dreadlocks kicked my friend Russell. Q. What part of Russell's body was kicked? A. In the leg I think. Q. What response was there from Russell when he was kicked in the leg? A. He went down, he went to the ground a bit and got back up. ... Q. When Russell got back up what did you see him do next? A. He ran off. Q. In which direction? A. Towards the police station. Down to the right, down the side street there is a police station down that way. ... Q. Did you see Russell Lyons again? A. No. Q. The man with the goatee, did you see him? A. I see him run around the corner. Q. The same corner that Russell Lyons ran around? A. Yes. Q. What distance was there between the two of them? A. Oh, I'm not sure probably 20, 30 metres. Q. In between each other? A. Yes. Q. Did you see that man with the goatee again? A. No. Q. The three men you referred to as "Islanders' where were they when Russell Lyons ran around that corner? A. They were in the middle of the road. Q. Those three Islander men where were they when the man with the goatee ran around the corner at the same time? A. Yeah, middle of the road." (T.89.41 - 90.44) 23Under cross-examination Mr Byrne agreed that he had worked a night shift the previous night that ended at 7am on 2 June 1995. He had waited until a bottle shop opened and had commenced drinking at about 10am. He had continued to consume alcohol and did not go to sleep that day. He agreed that his memory could be blurry because of the amount of alcohol which he had consumed. 24In relation to the deceased, Mr Byrne said: "Q. You saw the Islander with the dreadlocks kick Russell Lyons? A. Yes. Q. How many times did he kick him? A. I think he kicked him once. Q. Could it have been more than once. A. He tried to kick him the second time and he missed, yeah. Q. You're not sure about it? A. I'm not sure. Q. Sorry. A. Not sure. Q. So he could have kicked him more than once? A. I'm sure it was only once. Q. Well you're not sure? A. Yes. Q. Or are you sure which is it Mr Byrne? A. It was once. Q. And was it to - where was it? A. Leg. Q. To Russell Lyons' body? A. Leg. Q. Wasn't it to the stomach? A. No. Q. Could it have been sorry go on? A. I'm not sure. Q. Could it have been to the head of Russell Lyons. A. No I didn't see. Q. Sorry? A. I didn't see him. Q. Could you ... A. I seen his leg, leg may be in the stomach it wasn't the head. Q. Could you be unsure about it, could it have been the head? A. No. Q. You recall being interviewed by the police on 24 September 1999 at Fairfield Police Station? A. Yeah. ... Q. All right. And they ask you some questions about the kicking by this Islander on Russell Lyons, didn't they? A. Oh, I can't remember. Q. Page 11. You were asked (question 87) this question: "Q87. At the time of this fight or this incident that we're talking about with the Pacific islander kicked him..." this is a referral to Russell Lyons. "... did he receive any blows to the head? A. I can't remember. Q88. Well, you said he's only been kicked once. A. Yeah, Well, I don't know if ..." Then it's not transcribed. "... or not. I know he tried to. Q89 And you said - did he kick him? Whereabouts did that kick land though? Like, there's a fair difference between someone's head and their stomach? A. Yeah. I think he copped one in the stomach. Q90 Yeah." And then your answer. "A. But I'm not sure about if he copped one in the head or not." Q. Do you recall giving that answer? A. No. Q. Do you dispute giving that answer? A. No, I'm not disputing that. No. Q. So it could be that he copped a kick, that is, Russell Lyons copped a kick, to the head. You just can't be sure? A. Can't be sure, no. Q. When I say copped a kick to the head, I mean by the fellow with the dreadlocks? A. Yeah. Q. You understand that's what I'm asking you? A. Yeah. Yeah." (T.103.3 - 105.50) 25In relation to the appellant, Mr Byrne said: "Q. And what I want to suggest is that you can't, taking into account those circumstances and your intoxication, you can't be sure what happened to the man, the Australian man with the growth, the facial hair (indicated)? A. Yeah. Q. Do you agree with that? A. Yeah. Q. You don't know when he ran off? A. Just seen him run around the corner. That was it. Q. But you don't know when that was in the chronology of what went on, do you? A. I can't be sure." (T.106.36 - .49) Alan Jones 26Mr Jones was an employee of the Fairfield Council, who was street cleaning at the time of the altercation. He was driving south on The Crescent towards Hamilton Road. The time was about 3.05am. His evidence was: "Q. Could you tell the court please about this altercation. Who was involved, what was going on? A. I just seen a bit of a scuffle and one fellow was on the ground because it must have happened as I come out of the bus terminal. As I got up there I seen something going on. I seen one fellow on the ground and another fellow tried to kick him but a third fellow pushing him back ... Q. The first person you have described or told us about, would you describe that person the one who was on the ground? A. He just had dark jeans on like - I don't know what he looked like, no. ... Q. The second person could you describe him please? A. The other two both looked Islander type. Q. Anything about their hair that you remember? A. One fellow had his hair pulled back in a ponytail, black hair, he was the one pushing the fellow away. Q. Did you see any more of the first person, the one that was on the ground? A. Not that I can recall, no. Q. What about the other two, did you see any more of them? A. I seen the fellow with the ponytail when I come out of The Crescent. He was heading towards the cab rank. ... Q. Is it as you go through the roundabout and head back up The Crescent? A. I did. Q. Is it on the way back up, when you got back up to the location you were at before, did you see anyone in the vicinity? A. Yeah, there was a fellow on the ground, on the footpath, just near the arcade entrance. Q. That fellow, can you describe him, please? A. He was a young fellow with fair hair, light coloured jeans and jumper or shirt, whatever. Q. What colour was the jumper or shirt? A. It was a light colour too. Q. What was that person doing? A. He was getting up off the ground. He was quite groggy. Q. Was there anyone here with him? A. There was two other people there. I think they were both Islander types, and there was another few people just up on the other side of the phone boxes." (T.30.7 - .47) 27Under cross-examination, Mr Jones said: "Q. You then got into your truck and you headed along The Crescent towards Hamilton Road, correct? A. That's right, yeah. Q. The first incident that you have given evidence about is, that as you were driving along The Crescent you saw a male with dark jeans on the ground, correct? A. That's correct. Q. And would that have been in the vicinity of the arcade? A. In the vicinity of where the buses come out, side of the lights. ... Q. The first incident you saw was on the arcade side of The Crescent, correct? A. That's right, yeah. ... Q. And what you saw was, a male fall to the ground? A. I saw him go to the ground. I don't know if he was punched, pushed or kicked, whatever. Q. The first you saw was a male falling to the ground is that fair to say? A. Yeah. Q. And that person would you describe as an Australian looking with fair skin? A. I couldn't tell you. He was on the ground as I said. By the time I got there, he was on the ground and there were two fellows over him, but one was pushing the other away." (T.33.49 - 35.22) "Q. And you were going around that roundabout when you saw a police station wagon? A. That's correct. Q. You told us you motioned to them to go ahead of you trying to get the police attention towards what was happening in that altercation, is that correct? A. That's correct. Q. That police station wagon, you said, went ahead of you? A. Yeah. Q. And it travelled slowly back The Crescent towards Smart Street? A. That's right. Q. And you were following? A. Yeah. Q. You turned into Smart Street? A. That's right. Q. You went up towards Spencer Street? A. That's correct. Q. And then you came back to The Crescent? A. Yeah. Q. When you came back to The Crescent, did you see another second incident? A. No, no, I seen the second incident after - I didn't see the second incident. I just seen the fellow getting up from the ground, groggy, on the footpath. Q. Was this a different person? A. Yeah. Q. And this second person that you saw get off the ground groggy, was he also on the footpath on the side of the arcade? A. On the footpath, on the arcade side of the road, yeah. ... Q. And when you saw him, was it the case that he was lying face down on the ground? A. He was trying to get up. He was very groggy. Q. Before you saw him trying to get up, did you see him lying face down on the ground? A. I'm not sure. Q. You recall giving some evidence in a committal proceeding - so a preliminary court case? A. Yeah. ... Q. That was last year? A. Something like that. ... Q. Mr Jones, you were asked some questions in relation to things that you saw back in June, on 3 June. I just want to see if you remember this. You were asked in relation to that second incident: "Would you agree this second man that you saw on the ground had different clothing on?" and you said "Yeah". "Q. He had light coloured jeans on?" And you said "That's right". Q. When you saw him was he fully on the ground? A. Yeah. Q. Facing down? A. Facing down, yeah." Do you remember giving those answers? A. I must have if that's what's written down, yeah, but I could have seen him on the ground. I know he was getting up, attempting to get up. I don't know for sure now if he was fully flat on the ground when I first saw him or not. ... Q. And the second man you saw on the ground had lighter coloured jeans than the first man? A. Yeah." (T.38.37 - 39.39) 28The photographs of the deceased taken where his body was found show that he was wearing a light coloured top and light coloured jeans. Anita Black 29Ms Black was a police officer in 1995. On the evening of Friday, 2 June 1995 she was the driver of a marked police caged truck. At about 3.30am on the morning of Saturday, 3 June 1995 she was driving along The Crescent at Fairfield. Her evidence as to what she saw was: "Q. Tell us what you saw please? A. When I saw that the person had fallen and then I sort of looked, I took more notice and then I saw a male person, a big Pacific Islander person dressed in black, reach out with one hand and grab the person who fell by his top shirt. Q. As you are you uttering those words "by the top of his shirt" you placed your right hand -- A. Yes. Q - on around the neck or upper chest area? A. Yes. Q. In a clenched fashion? A. Yes. Q. Is that what you are saying you saw? A. Yes. Q. The person that had fallen over, that was being grabbed in that way, could you describe that person, please? A. I just vaguely remember him being dressed in cream coloured clothing. I believe he had blondish wavy hair. That's all I can remember. Q. In the moments before you saw this out the corner of your eye, was the police vehicle that you were driving travelling below, at, or above the prevailing speed limit? A. I honestly can't recall, but I wouldn't have been driving, like, really fast. Probably at the prevailing speed limit because at that time of the night there was no traffic around. ... Q. What was the next thing you saw after seeing that this man was grabbing the man in the cream coloured clothes in the chest area? A. I thought he actually lifted him up. Q. With one hand? A. Yes, lifted him up to his feet. ... Q. What I would like you to do is tell us what you saw? A. Just that he had - the Pacific Islander man had the man in the cream coloured clothes, just holding him there. That was all I remember. ... Q. Did you see that hand, that grabbed the man, do anything else? A. No. Q. What about the other hand of the man? A. No. Q. Did you see it do anything else? A. No. Q. Did you see where his left hand was or his other hand was? A. I can only say by his side. I didn't see his other hand do anything else." (T.204.30 - 206.32) Detective Sergeant Terry Flippence 30Detective Flippence was an expert in blood spatter pattern interpretation. He was provided with a statement and photographs of the scene, the Adidas shoes, reports of forensic biologists from the Division of Analytical Laboratories (DAL), a photogrammetry plan and the autopsy report by Dr Peter Ellis, including photographs of the post mortem examination. 31Detective Flippence was taken to a statement which he made, where he said: "A. the light coloured jumper the deceased was wearing had extensive contact blood stain to both arm sleeves, but primarily to the right sleeve. I noted no projected staining on the back or front of the jumper." 32Detective Flippence could not determine whether the blood staining on the Adidas shoes was projected or contact. The location of the blood on the side of the sole and the side of the shoes indicated that the shoes could have been in the paved area at the time the blood event occurred and blood could have come onto the shoes at that time. Detective Flippence considered that it was unlikely that the shoes were walked into the area after the blood event occurred because one would get blood transferring onto the rubber sole of the shoe and when the person walked out of the scene, there would be partial shoe impressions and there were none. 33Relevant parts of the evidence of Detective Flippence are: "Q. The phrase that you use "blood event", what is the blood event that has occurred that's created the blood presence and spatter as depicted in the photogrammetry plan? A. The blood event, the spatter in between the deceased's body and the wall, specifically is, as a result of a blood event that has caused the sudden downward movement of the deceased's head with blood either on the deceased's face and/or on the concrete underneath hitting onto the concrete surface and causing the spattering of blood. Q. After that happened, after that blood event happened, are you able to say whether there were any further blood events? A. There is two types of spatter in that scene. One that I just described between the deceased and the wall, another one with circular blood, mainly around the deceased's arms and elbows, and there is also some wipe patterns. The deceased's left arm has wiped some of the blood on the concrete floor. In what order they are in is very hard to tell, although I would say that the spattering and the blood around where the deceased was lying, as opposed to the blood to the right of the deceased, there is an elliptical shape area of blood and another area of blood under that, I would say they would happen first otherwise there would be more blood in that area considering the blood where the deceased is laying. Q. So are you able to say whether there was more than one blood event? A. I can say one or more blood events. If the deceased's head was forced downwards or went downwards in a rapid motion, for the spatter to occur he has to have blood on his face or under his face at the time. So, if there is no blood under his face on the first instance then that would not create a blood spatter. That would create - the first downward force would create an injury which would create blood on the face and subsequent ones would create a spatter. Q. I give you this scenario. The deceased was bleeding to the face and had simply fallen to the ground without any involvement of any second party. Is that consistent with the blood spatter pattern that you represented in this photogrammetry plan? A. It may be. Q. Can you explain why it may be? A. Well, the deceased would have to have blood on his face and the deceased falling on the ground represents a blood event which is a sudden downward force. Q. If there was an absence of blood on the front of the jumper of the deceased, but large amounts of blood on the arm does that affect your answer? A. Yes. Q. How? A. I would say for somebody to be standing there and bleeding to a medium to large extent on his face, he would almost certainly have blood underneath the chin and collar and upper chest area of the jumper. The blood on the arms is contact staining and is as a result of the deceased, whilst bleeding, having his arms underneath his face as he does when he was found." (T.291.5 - 292.6) "Q. What can you say about the staining, if anything on the front of the jumper as we see it there? A. The staining is minimal. There is an area up on the right shoulder between the collar and the top of the arm which is a contact stain. And on the upper left chest area there is, what I can easily say is a squarish type contact stain, and there is some minor staining underneath those areas but nothing major. Q. Any of those stains caused by blood dripping down the face just as a result of gravity. That is, from the deceased having been in a standing position and bleeding onto the front of the jumper? A. One or two may, but the rest are contact staining." (T.292.19 - .29) "Q. ... That wall that was in front of the deceased's head has that "no parking" sign on it, the spatter patter that was there, what was the blood event that caused that pattern? A. On the wall, the blood event was as a result of the sharp downward force of the deceased's head on the concrete. Q. Are you able to say what kind of force would have created that pattern? A. It could have been a number of things. Could have been somebody stomping on the back of the deceased's head, could have been the deceased lying down trying to get up losing consciousness and coming back down on the concrete. Could have been the deceased falling. As long as he had the blood that was evident on his face and on the concrete underneath." (T.292.44 - 293.5) 34Under cross-examination Detective Flippence gave the following evidence: "Q. In relation to blood spatter, would you agree that that is a term that describes a blood stain that results from blood being dispersed through the air due to some sort of external force? A. Yes. Q. There are stains that are referred to as transfer stains? A. Yes. Q. And that is something different to spatter stains? A. Yes. Q. Transfer stains, would you agree, is a blood stain resulting from contact between a bloodied or a blood-bearing surface and another surface; correct? A. Yes. Q. So -- A. Transferring the blood from one surface to another. Q. So there is a distinction to be made between those two types of staining; correct? A. Yes, there is. Q. Just going back to photograph 19, the blood spatter pattern that you saw in the photographs depicted on the ground immediately in front of the deceased and on the besser block wall, could that blood spatter have been as a result of a single impact? A. Yes, but only if the deceased had blood on their face and/or underneath their head when there was a sudden downward force onto the concrete. Q. So do I understand your evidence correctly, there are two ways in which that blood spatter pattern I've referred to - on the ground in front and on the besser block wall - one, possibly if he had a bloody face and there was a sudden downward movement where he hit head on the ground? A. Yes. Q. And that would cause the spattering immediately in front of him on the ground and on the wall? A. Yes. Q. Or ultimately, if there was no blood on his face, if there was a sudden downward motion where he hit his head on the concrete? A. Yes. Q. And then got up or tried to get up and hit his head again on the concrete? A. Yes. Again, as long as there was the presence of blood in that area. Q. You describe in your report, this is at paragraphs 4 and 5 if it assists you, that near the deceased's right elbow was an oval shaped area of contact staining which had been wiped in the direction of the deceased? A. Yes. Q. In paragraph 5, near the deceased's left elbow was several stains which appeared to have been wiped through in an upward direction as the elbow is positioned? A. Yes. ... Q. Do you describe that as a stain that looked to have been wiped in the direction of the deceased? A. Yes. Q. I think you saw what you describe as a feathering effect? A. Yes. Q. What does that signify? A. That is a contact stain that's been wiped in the direction of the feathering so it feathers out to nothing basically. Q. Then you observed something similar to the left of the deceased at about his left elbow, is that right? A. That's correct. Q. Are those two areas that you've described consistent with a movement by the deceased himself, a movement of his arms himself, if the sleeves of his jumper were blood stained? A. The stain under the left elbow moving in an upward direction I would say is consistent with that. But the stain on the right, I can't say whether it is consistent with him moving or him being moved. That's what I'm saying. Q. So it could be you can't exclude the reasonable possibility that the stain on the right was made as a result of movement by him? A. That's correct, yes. Q. That's one of two explanations? A. Yes. Q. But it could be - it's reasonably possible that both the wiped, if I can call them wiped stains that you saw to the left and to the right of his elbows were caused by his own movement? A. It could have been. Q. That would have had to have been obviously after he was bleeding? A. Yes. Q. Because it would mean that his sleeves would have had to have been bloodied, the sleeves of the jumper would have been bloodied; correct? A. Yes. Q. Can I ask you this Detective Flippence: If the deceased had fallen to the concrete as a result of a sudden movement downward and caused an injury to his face that bled, if he was there for a time so that he was bleeding and the blood pooled onto the ground underneath him and he then tried to move himself so that he could get up and fell again onto the concrete ground, could that have caused the blood spatter that we see on the ground immediately in front of him and on the besser block wall? A. Yes." (T.301.1 - 303.18) "Q. Indeed would you agree that at the time of preparing your report you were not provided with any information about evidence relating to earlier assaults upon the deceased on The Crescent? A. No. I was provided with information from Detective Senior Constable Willy about an assault but to my knowledge there was no bloodshed in that assault. Q. That's what you were told by Detective Willy was it? A. Yes. Q. So you weren't aware of evidence that the deceased had been assaulted on The Crescent and had been seen hurt and bleeding? A. No. Q. I'll just go back then. Noting that information, you can't exclude the reasonable possibility that the stains that were seen on the shoe, on the shoes, the Adidas shoes resulted as consequence of an earlier assault on The Crescent? A. If there was bleeding at that earlier assault, no, I can't exclude that. Q. I think, as you've already confirmed, you can't say one way or another whether the stains are transfer stains or spatter stains? A. That's correct." (T.304.11 - .33) 35In re-examination Detective Flippence said: "Q. I was going to ask you a couple of questions about that last bit of your evidence, the two stains, the two blood stains on the right shoe. Taken one at a time, the stain that is shown in that close-up in exhibit T, the stain that is shown in photograph 71 in exhibit F, the back of the right shoe, you've said that you can't say whether that is a contact stain or a spatter stain. Are you able to say whether or not the blood got on there by falling (indicated), as in the deceased being in an upright position and bleeding in such a way as for blood to have dropped on to the shoe whilst the shoe was being worn by someone and you were standing near the deceased? A. No, I can't. Blood stain interpretation relies on pattern identification and shape identification, and that particular stain although it's a heavy stain if it was spattered doesn't give me enough information to say either way. Q. The stain that is shown in photograph 72, in exhibit F; there is also a photograph of that in exhibit T. That stain that's there you say you can't say whether that's a contact stain or a spatter stain. Are you able to say whether that stain occurred in the same way that I've described; that is, the person wearing the shoe standing near the deceased when the deceased's blood has fallen just as a result of gravity to that spot on the shoe? A. No, I can't say for sure. Q. Is it for the same reason that you gave with the first stain? A. Yes, it is." (T.304.37 - 305.10) Dr Peter Ellis 36Dr Ellis attended the scene at about 12.30pm on 3 June 1995. His observations are consistent with the photographs taken of the place where the deceased's body was found. Dr Ellis explained why it was not possible for him to accurately determine the time of death. 37Dr Ellis observed that the deceased's right arm, which was underneath his head, was heavily bloodstained. Underneath the jumper was a long-sleeved, blue shirt the right arm of which was also heavily bloodstained. The deceased was wearing light blue jeans and there were a number of small blood spots on both legs, but more on the right leg. He was wearing socks, the soles of which were clean and did not show any gravel marks or tearing to suggest that he had been running or walking in them. 38Dr Ellis prepared diagrams which set out the injuries to the deceased. The fresh injuries were numbered and described by him as follows: 19 and 20: Two small abrasions on the back of the right arm above the elbow; 17 and 18: Two small abrasions on the back of the left arm above the elbow and 17 on the tip of the elbow; 23 and 24: Two abrasions on the back of the left hand, each consistent with coming into contact with the ground around where the body was found; 25: Abrasion on the back of the right hand near the wrist; 27: Small abrasion just above the left ankle; 28: Small abrasion on the outer surface of the left ankle; 29: "Tiny" abrasion on the top of the left fourth toe; 1: Large abrasion behind, above and below the right eye, effectively on the front half of the right temple and the upper part of the right cheek (5 cm across and 4 cm high); 10: Large graze type abrasion on the right side of the forehead extending into the hair that had a very fine fragment of dirt in it, consistent with that part of the head hitting the ground (3 cm across and 4 cm high). 11: Abrasion and bruising above and behind the right eye (3 cm across and 3 cm high). Broken nose on the right side of the bone, possibly associated with wound 2, a large abrasion covering the left side of the nose, much of the left cheek and below the left eye (11 cm across and 6 cm high). 3 and 4: Two abrasions between wound 2 and the left ear. Wound 3 was a curved oval abrasion on the left temple (11.7 cm long). 6 and 7: Two small abrasions above the left eye. 5: Abrasion on the lower part of the left ear. 14: Abrasion behind the left ear. 8: An abrasion just above the bridge of the nose, between his eyebrows (2 cm across and 1 cm high). An abrasion just above 8. The lips were swollen. Inside the lips were small abrasions or lacerations that matched the teeth underneath. The teeth were not damaged. The opinion of Dr Ellis was that there was some kind of impact that had forced the lips back onto the teeth and caused some damage inside the lip and bleeding within the lips. There was blood and frothy fluid in the nostrils. 12: Bruising in the lower part of the head (6cm across and 3 cm high). Within that bruise was a slightly curved abrasion, 1 cm long. 13: Ill defined bruising above injury number 12 (6 cm across and 5 cm high). 39Dr Ellis defined abrasion as follows: "A. Well, it can be documented as an abrasion. They're small abrasions. What an abrasion is, most people are familiar with a graze or scratch. Essentially what an abrasion is, is a loss of the very surface of the skin, which is where the surface of the skin is removed. It usually happens when skin comes in contact with something rough; it may be the ground; it could be another person. But if you were just to punch soft skin of another individual, you're unlikely to get abrasion. If you punch something harder, then you could get an abrasion, actual loss of surface. You will actually have to have contact of the skin with some rougher surface to actually get an abrasion." (T.517.17 - .25) 40Dr Ellis described the difficulties which he had in determining how many of the deceased's injuries were separate. "A. Given the fact that there are clearly a number of quite separate injuries, it is possible that each one may be caused by a separate amount of application of force. Although, it must be said that because the surface of the head is obviously curved that you could have one application of force that causes a lot of injuries at the same time purely because different parts of the head contact the ground, if it is the ground, at the same time. Q. The two injuries that you have noted as 1 and 2? A. Yes. Q. Were they caused by separate applications of blunt force? A. It is quite impossible to tell. One thing that you can tell about abrasions is that they can only occur with actual contact. So that the exact shape of the abrasion and the size of the abrasion reflects exactly the contact of the skin with whatever surface it was. They can't spread. Unlike bruises, there's just bleeding and bleeding can spread or even lacerations where skin can tear and can tear longer, abrasions are point of contact. So, they reflect the exact point of contact of skin on the front of the face with what may be the ground. That seems to be the most likely explanation given the context of this particular case. Now obviously the front of the face is not a flat surface. There's a nose that sticks out and the cheeks are curved. And to be able to get abrasions that occupy the left and left-hand side of the cheek, which actually curves around to the side, and the right-hand side of the cheek as well as the surface of the nose, I can't see the face hitting the ground flat not moving giving you those abrasions. I can't see how that is possible because the front is curved. But if for some reason the head in contact, facedown, were to roll in some way so that those different parts of the skin contacted the ground and were rough, then you could get abrasions of that sort of a shape. So they could occur with one force, but it would involve movement of the head, a significant rolling in some way (witness indicated)." (T.521.21 - 522.3) 41In relation to the blood found at the scene, the evidence was: "Q. Are you able to tell us the blood that was seen around the, pooled around the deceased at the scene, which, if any, of those particular injuries that blood was coming from? A. Now it assumes that blood was his. You know, it came from him, which was a reasonable assumption, but may not. I don't know that for sure. I couldn't tell. I mean, there were a number of injuries here that could have bled. Abrasions can bleed, although they tend not to bleed significantly. Certainly the nose, and there was blood in the nostril but that certainly could have bled. The lips, the inside of the lips were damaged and I can't exclude blood having come out from that. I would have been a bit surprised if the blood spots sort of came from the abrasions. It would depend on how long sort of he had been lying there." (T.522.46 - 523.7) 42The evidence in relation to the back of the head was: "Q. Sir could you tell us then about your examination of the rear of the head as set out in Silhouette Head 1. A. Yes. The actually two areas of bruising are two injuries there, the label 12 and 13. 12, which is in the lower part of the back of the head, is an area of bruising. I measured it approximately 6 cm across and 3 cm high. Within that bruise you can see a slightly curved black mark. That is a small abrasion. So, you only see an area of bruising and within that bruise, there's a small abrasion. Q. Is that almost like a boomerang shape? A. Yeah, just slightly. People have used that word, yeah, but - Q. - To describe that before? A. That's it purely. But that's merely a word used to describe the curving, curvature. I should point out that of course that's on a fairly curved part of the skull anyway. And so, it wouldn't be uncommon to get a curved wound on it. It's 1 cm long. It wasn't very big. Q. At 12 and 13? A. Yeah. Q. Are you able to say whether they were caused by the same impact or different impact? A. No, it would be impossible to say that. To stress again that they're an area of the body which has hair on it normally and I observed them only after I had removed the hair. They're both bruises. 13 was above it, and again this is rather ill defined, 6 by 5 cms. I say ill defined because the edges aren't particularly clear. The thing about bruising, because it represents blood in the skin, if you could - at the edge it's not always a sharp line. Unlike an abrasion, it has a sharp line. Q. The observations that you recorded at 12 and 13, was that after the hair had been removed? A. Yes. You can't see anything of course with the hair. That's why the hair is removed to specifically look at the skin." (T.523.18 - 524.2) 43Dr Ellis explained the methodology which he used where bruising had occurred. What he did was to make a cut into the skin and fold the skin back. This enabled him to identify bruising on the underside of the skin. 44Dr Ellis explained the difficulties associated with identifying the cause of bruising: "Q. The injuries that you have depicted on this Silhouette, the left side, the right side and the rear view of the scalp, are you able to tell the court how many impacts or applications of force there's been to cause this haemorrhaging or bruising? A. Well unfortunately, unlike with abrasions, with bruises you can have bruises that spread because they are merely bleeding which means all you get is damage to blood vessels. The blood gets out. Those blood vessels then travel through tissue. So you cannot predict just by looking at the shape of the bruise as to, first, how big the application of force was that created the bruise. It may have spread. And also, how many. In other words, you can have one bruise like for example, that one on the back of the head, the back of the skull there. You can have that bruise and it could have been caused by more than one impact. I am satisfied that it is likely to have been caused by at least one impact. It could have been caused by more than one. ... Q. - Could impact to that area of the head also have caused the bruising that was depicted in the left side and right side examinations of the scalp? A. Well that's what I was actually about to come to. Q. Sorry. A. The issue of the temporaneous muscles is that you don't actually have to have application/force onto the muscle itself to give you bleeding into them. It's somewhat similar to the situation of black eyes. You can get black eyes, obviously bleeding to the eye, without trauma to the eye itself because blood seems to track. So, I think it would be unlikely for the impact to the back of the head to cause the bleeding to both the right and left temporaneous muscles and nowhere else, but the bleeding into those temporaneous muscles may have occurred by impact somewhere else; on the side of the head. I would suggest getting bleeding into both those sides suggests that there was at least impact on both those sides, and we effectively then got at least three impacts as in the back of the head, the right side of the head and the left side of the head." (T.525.43 - 526.30) 45Apart from the broken nose, Dr Ellis found no other skull fractures. The only conclusion he was able to draw was that whatever force had been applied to the deceased's head, it had not been sufficient to fracture the bones in his skull. 46Dr Ellis found about 250 millilitres ccs of fresh and clotted blood in the left subdural space of the deceased skull. Dr Ellis explained the significance of that finding: "A. I measured 250 millilitres ccs and also estimated the thickness of the clot. The reason for doing that is to give an idea. The reason why it's important is the very fact that it occupies a space is clinically important. Q. Why? A. Because the brain - the skull is a box. It's a box. You know, can't expand. It's because it's bony and the brain is inside that box and there is not a lot of space around the brain. So that if something fills space, the skull can't get bigger to accommodate that increase in volume. And so, effectively presses on the brain, squashes it and it can actually squash it enough to damage certain important areas of the brain. And this is why developing blood clots in the head are dangerous because they grow, because they press onto the brain and compress the brain itself. That's why giving an idea of actual volume and thickness is important. For example, if it's just a thin layer, then while it's evidence that there has been some trauma, it may not be fatal. But something like 250 mls is quite a lot because we are talking again about the skull which isn't a very big structure." (T.527.32 - .49) 47The deceased was found to have had a blood concentration of alcohol of .287. The relevance of this was: "Q. Is that relevant to the issue of manner and cause of death? A. I certainly would say it's relevant to the cause of death. The blood alcohol should, of course, be zero, and the normal driving limit is .05. So we're looking at a level that's between 5 and 6 times the normal driving limit. So it's very high. I mean, alcohol can kill you by itself because it is a toxin, and it's poisonous to the brain and the heart. If you have a high enough blood alcohol level, you could die from that alone. This level is probably not high enough to cause death by itself but certainly high enough that it is likely to have affected brain function. You can't be specific and say what parts of the brain did it or didn't it affect, but it depressed brain function. Given the fact that there's certainly been evidence of some head trauma and bleeding around the brain, and presumably therefore, some functional affect on the brain itself, combining that with a pretty high blood alcohol, that's a potential complimentary effect. So I think it is, and I did put that in the formal causal of death as a potential contributing factor." (T.532.26 - 41) 48Dr Ellis identified the cause of death as follows: "A. I felt that the cause of death was head injury and I've used that as a fairly broad term. So that covers bleeding, covers the fact that it is likely that trauma that caused the subdural blood to collect may well have affected brain function. Unfortunately, just by looking at the brain even under the microscope, doesn't tell you whether it's working or not. So it's reasonable to expect that something that's clearly hit the head in one form or another, to the extent that you can get a significant bleed, is likely to have affected the function of the brain itself. I think that was the primary cause of death, but there's also high blood alcohol. I cannot exclude that as contributing so I put that as a contributing factor. ... Q. Can I just finally see if I understand the gist of what you're saying, that death was considered to be predominately due to the effects of head injury, although the effect of alcohol may have been a contributing factor? A. Correct, that's right." (T.532.50 - 533.26) 49Under cross-examination Dr Ellis gave evidence as to the possible cause of the abrasions found on the deceased: "Q. Is it possible or is it reasonably possible that some of the abrasions that you observed could have been as a result of the deceased being punched if the assailant was wearing a ring for instance, on their hand? A. Yes. I think as I indicated possibly earlier on, talking about injuries, if a hand just applies a punch with an ordinary unadorned hand, if I could use that phrase, it would be unlikely to give abrasions like I've seen because they really are dependent on the skin coming in contact with something rough. But if the hand was particularly rough, a worker's hands for example, or there was some kind of surface like a ring that had rather than a sharp edge, had a rough edge, I certainly couldn't exclude abrasions resulting from that. There are some abrasions here that look nothing - I described them as graze type abrasions, that's a more even roughening. I think it very unlikely that a simple punch directly at that spot would cause those. I think they really are typical of that skin rubbing against a rough surface and the ground or gravel or something. A wall is much more likely. Q. So in relation to the abrasions that you observed with a graze-type effect, those abrasions you say are more likely to have been caused by the deceased's head coming in contact with the ground? A. Yes. Q. And in relation to some of the other abrasions, you don't exclude the reasonable possibility that they could be as a result of punctures delivered if the assailant had either rough hands or some item of jewellery? A. That's right. If I can remind the court there was an injury on the back of the head which is a bruise, but within that bruise, is what was originally described as a boomerang shape, slight curved abrasion. That's a fairly small abrasion. It may well be that's the kind of abrasion that could have come from a ring or some fairly small object. ... Q. In relation to that injury that has the small abrasion, could that injury also be caused by the deceased falling on the ground, hitting the back of his head on the ground if there was something like a small rock on the ground? A. Absolutely yes." (T.533.44 - 534.33) "Q. Then lastly in relation to the second skull that you've coloured on Silhouette Skull 2, do you see that is the bleeding to the underside of the scalp on the left hand side? A. Yes. Q. Could that relate to the external injuries that you noted as injuries 2 and 3? A. Yes, but there are also other small abrasions 6, 4 and 5, even 14, they are sort of all scattered, a number of small abrasions on the left side of the head. I think I indicated earlier, I'm not saying they were all caused by separate impacts. Because the surface is curved, because the head may have contacted the ground which might have had rough bits on it, they may all have occurred as a result of one. I'm certainly happy to concede that the bruising in the temporalis muscle on the left side indicated that the skull's silhouette is consistent with those injuries." (T.535.13 - .26) 50In relation to the cause of death: "Q. The injury that you have indicated in your opinion as the predominant cause of death is the subdural haemorrhage. Correct? A. Yes. Q. In relation to that injury, could that injury be caused by a punch? A. Yes it could. A subdural haemorrhage as I indicated, like other haemorrhages, occurs when blood vessels are broken and it's usually considered that the blood vessels that break, that cause subdurals are those small blood vessels effectively underneath the dura, tiny little veins. Some people believe there might be small vessels in the dura itself, it doesn't really matter. Anything that damages those vessels, causes them to tear, and they bleed and you get a collection of blood. That is some kind of physical force that may occur as a result of impact, so something striking the head. It may actually even occur without impact. One has to remember that the head consists of a box which is the skull and the brain which is inside that box and the brain can move to a certain extent inside the box. It's only fixed in certain areas. So it tends to wobble a bit, to put it fairly crudely. I think most people would be familiar with the term 'whiplash', for argument's sake, where a head suddenly flips forward and backwards suddenly. The brain, because it's not fixed inside that box, will also flip backwards and forwards, but it flips backwards and forwards not in exactly the same time as the skull. So it moves in relation to the skull inside, and it then puts pressure on those little blood vessels and they then may tear ... But frequently, something striking the head causes it to move and again those blood vessels tear. Q. If in this case, the subdural haemorrhage was as a result of the head being struck, or the head striking something, could the subdural haemorrhage have been caused as a result of somebody punching the deceased? A. Yes. Q. Could the subdural haemorrhage have been caused by the deceased falling to the ground and hitting his head on the concrete, the ground? A. Yes. Q. If it was the case that the subdural haemorrhage was caused as a result of somebody punching the deceased, could one punch, one single punch, cause that type of injury? A. Yes. Q. What sort of force would be required if it was one punch that caused that subdural haemorrhage? A. A bit difficult to be specific because it's not necessarily the amount of force but the way it's delivered. Because if I go back to the analogy or the description of the head moving and the brain moving, what you actually have is a like a rotating motion of the head. The head is obviously fixed on the neck so it can move essentially forwards and backwards, a little less from side to side. It can't move up and down, so it rotates backwards and forwards. If the force applied causes the head to move backwards and forwards, that's the force that's most likely to give you a subdural. Clearly, if it was a blow, a punch causing that, then clearly the bigger the blow in that direction, the more likely you are to get a subdural haemorrhage. If you were to strike the head from the side, the motion is not quite the same and you're much less likely to get haemorrhage. It's not so much the amount of the force but it's the way the force is delivered. Q. So if it was a punch that was delivered to the face of the deceased, could that be sufficient to cause a subdural haemorrhage? A. Yes it could. Q. Is it reasonably possible that the deceased could have suffered the subdural haemorrhage but not immediately become unconscious? A. Yes it is. It depends on what's caused the subdural. If a big punch caused the subdural, that big punch may have delivered enough force to actually cause the brain to malfunction by itself, effectively independent of the actual haemorrhage. In which unconsciousness would occur pretty well straight away. If unconsciousness occurs because of the subdural alone, the subdural can take some time to develop and so we see this in boxers, you see this in other people, they may suffer trauma but then over a period of time which may be hours, they get increasing drowsiness and increasing headache and ultimately, they become unconscious and die. The only thing you find at autopsy is subdural haemorrhage. Clearly it can take a long time. There is no way by looking at the haemorrhage, to say how long that took. I don't know how long this haemorrhage took to develop, it could have happened in a small space of minutes, could have happened in half an hour or so, maybe even longer." (T.535.39 - 537.23 51Various scenarios were put to Dr Ellis: "Q. Firstly put those locations in mind, I want to put this scenario to you Dr Ellis if there is evidence that the deceased was punched twice at the location where we see the red star? A. Yes. Q. And we also have evidence that the deceased was punched on a further two occasions at the corner of The Crescent and Smart Street? A. I understand. Q. If any of those or one of those punches caused the subdural haemorrhage, is it reasonably possible that the deceased could have made his way into the car-park area and collapsed there? A. By "made his way" do you mean walk or run? Q. Walked or ran? A. Yes. Q. Is that a reasonable possibility? A. Yes. Q. Is it reasonably possible that having made his way into the car-park area, that he could have fallen to the ground in that area causing the broken nose? A. Yes. Q. I think you indicated earlier in your evidence that the broken nose would have caused some bleeding? A. Yes. There was some blood in the nostrils and it's certainly consistent with a broken nose. Q. I think you saw the deceased in situ with the pooling of blood underneath him? A. Yes. Q. And the blood that you saw, could that be consistent with the broken nose? A. You said the blood I saw. Do you mean the blood on the body, blood on the ground or on the wall? Q. Blood on the ground? A. Because there was some blood on the wall, I made a brief reference to it. It wasn't my job to do a detailed examination of it. But it was certainly on the ground. The other thing we must not forget, he was face down and obviously like that since death. That will cause a pooling of blood and if there's an injury, that can continue to ooze even if the heart has stopped. It's certainly consistent with a broken nose, yes. Q. Is it reasonably possible that if the deceased fell on the ground in the car-park causing the broken nose and bleeding, that he then could have tried to lift himself to get up and fallen again in that area. A. I couldn't exclude that possibility." (T.538.5 - 539.3) 52In re-examination the following proposition was put to Dr Ellis: "Q. The scenario that you were taken to, is there a reasonable possibility that the injuries that you identified on the deceased occurred in their totality, that is, the injuries to the front, the side and back of the head? A. There are effectively four surfaces; front, both sides and the back, but they are complex surfaces. As I indicated earlier, the surface on the front for example, there's a nose sticking out and just falling face down is unlikely to - certainly it would fracture the nose, to give that fairly extensive abrasion we've observed on both sides of the cheek, without some kind of a rolling movement. Also other injuries to the right side of the head and other injuries to the left and the bruising on the back of the head, I think one can argue you've got to have at least four impacts; the front, the two sides and the back. That's even suggesting that that's even taking into account the fact that if you look at the left side of the head there are actually seven or eight discrete abrasions. I have indicated earlier some of them could have occurred in the same time, it depends on the ground surface, but I would have thought you've got at least four kinds of contact. Given the problems with the front of the face, with the nose sticking out, I personally think it's more likely to have more than that." (T.539.27 - .45) 53In relation to the cause of death, the following evidence was given: "Q. You said yes, and could it [subdural haemorrhage] be caused by a single punch and you said yes. In the course of your answer you said there were other possibilities. You nominated, for example, the kind of whiplash or shaken baby syndrome, that type of injury. What about a kick to the head, could a kick to the head or kicks to the head cause a rupture to the blood vessels that led to the subdural haemorrhage? A. A kick to the head is a kind of impact trauma and it does depend on what the head is doing. The reason why I say that is because if the head is mobile and the thing about subdurals is they tend to result from a rotational motion as I tried to describe earlier. If the head is mobile, as in not being fixed say, on the ground, and the kick in some way can cause the head to move quite a lot and certainly can cause a subdural. If the head is fixed and is firmly fixed to the ground in some way, then it depends on how the kick is delivered. If the kick comes from the side to the head and used to move then it could still cause the subdural, but if it comes from the top like a stomp type of kick, it's probably less likely to cause a subdural because the head is not going to move much. That will cause other injuries, other damage which I might add I didn't see here. I'm not saying that there wasn't kicking. That's another form of blunt force trauma. It's the issue of motion of the head, but if the kick caused it or a punch or a fall or whatever, causes the motion of the head, that's what tends to give you the subdural." (T.540.3 - 24) The appeal Ground 1: The verdict was unreasonable 54The appellant conceded that it was open to the jury to find that he was the man with the goatee beard and that he had followed the deceased to the location where the body was found and had there stolen his wallet and shoes when he was lying on the ground. The issue raised by the appellant was that it was unreasonable for the jury to find beyond reasonable doubt that he had caused the death of the deceased. 55The appellant submitted that the prosecution case was entirely circumstantial. No witness saw him strike or otherwise assault the deceased. He submitted that the Crown case depended upon the evidence relating to the deceased's injuries and the blood where the deceased was found, to establish beyond reasonable doubt that he assaulted the deceased at that location. He submitted that the evidence did not reach that standard and that the lacuna in the Crown case related to the issue of causation. 56The appellant submitted that the evidence supported a reasonable hypothesis consistent with innocence, namely that the cause of the deceased's death was a blow or blows from the person of Islander appearance with dreadlocks, at the place where the initial confrontation between him and the deceased occurred. 57The evidence relied upon by the appellant was that of Mr Cross to the effect that he observed the deceased to be punched approximately four times by the Islander with the dreadlocks. While Mr Byrne did not give evidence of a punch, he gave evidence of a kick which caused the deceased to fall to the ground. That the deceased was on the ground at this location was supported by the evidence of Mr Jones and Ms Black. The appellant submitted that the evidence of Detective Flippence was equally consistent with the deceased falling to the ground as with an assault occurring at the location where he was found. The appellant submitted that the medical evidence was equally consistent with death having been caused by an earlier punch as with an assault occurring at that location. 58The Crown submitted that taken together, the evidence of Detective Flippence and Dr Ellis compelled the conclusion that the deceased was attacked at or about the place where his body was found, with at least four impacts being applied to his head to bring it into contact with the ground and thereby produce the nasal fracture, the distribution of abrasions to the skin (on the face, left and right sides, and back of the head) as well as the other bruising of the head that was found at autopsy. 59The Crown submitted that the injury to the back of the head was consistent with the deceased (i) while lying face down on the ground being struck a blow with a kick or heavy punch or punches to the back of the head and (ii) while standing being punched in the face and falling backwards onto the ground in the vicinity of the two blood transfer stains to the right of the deceased and then rolling over onto his front where the further abrasions and bruises to the face and head were inflicted. 60The Crown submitted that an attack of this kind upon the deceased by the appellant, or by grasping his hair and repeatedly pounding the head onto the ground, would be expected to produce the constellation of head injuries present at autopsy, as well as the blood staining evident about the body, including the spatter on the ground and the wall adjacent to the head of the deceased. 61The Crown submitted that the evidence of Messrs Byrne, Cross, Jones and Ms Black of the various incidents in The Crescent, did not suggest that the deceased had sustained any injury that produced significant visible bleeding and that also caused such a rotational movement of the head that there resulted a subdural haematoma in a young, adult, male person. 62It submitted that the flight of the deceased from the corner of Smart Street and The Crescent and the distribution of head injuries over four facets of the head were contrary to any scenario that the deceased might have collapsed in the car-park for reasons not associated with an attack by the appellant and then repeatedly have attempted to get back up, only to also repeatedly fall/slump back to the ground. 63In oral submissions the Crown said: "CROWN: Quite so, and pivotal to it [the evidence] is the evidence of Dr Ellis. It's the nature of circumstantial cases and alleged available rational hypotheses such as this, a lacuna, that evidence of that genre would be evidence your Honours have particular regard to notwithstanding the idiosyncrasies if I can use that term of evidence that's given by Messrs Byrne and Cross." (AT10.28) Consideration 64I have concluded that this ground of appeal has been made out. I have concluded that the verdict of the jury is unreasonable and cannot be supported on the evidence. 65The test to be applied in considering whether a verdict is unreasonable for the purpose of s6(1) of the Criminal Appeal Act 1912 is well known. It was explained by the majority of the High Court in M v R [1994] HCA 63; 181 CLR 487 in the following terms: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." And [at 494 - 495]: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 66That test has been affirmed in the High Court as the appropriate test to apply in a number of cases: MFA v R [2002] HCA 53; 213 CLR 606 at [25], [45]. In SKA v R [2011] HCA 13; 243 CLR 400 the majority (French CJ, Gummow and Kiefel JJ) said: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."" 67The evidence of Mr Cross in chief was that the "bloke with the dreadlocks" punched the deceased in the face. Under cross-examination he agreed that this person had punched the deceased a couple of times causing the deceased to appear hurt and bleeding. Mr Cross agreed that before the deceased left the intersection of The Crescent and Smart Street, he saw the "Maori man belting into" the deceased in "quite a savage attack". In re-examination he said that this person gave the deceased two more punches in the face. 68It is true that the evidence of Mr Byrne is different. He did not give evidence as to observing any punches, but did give evidence which was confirmed in part by Mr Jones and Ms Black that the deceased received a kick which caused him to fall to the ground. There was no logical basis for why the jury would prefer the evidence of Mr Byrne to that of Mr Cross. On the contrary, it is apparent that Mr Byrne was drinking for considerably longer than Mr Cross, his answers to questions were more vague and he himself was punched a couple of times by one of the Islanders, which would account for why his observation of the deceased could have been less comprehensive than that of Mr Cross. In any event, the observations of Mr Byrne is consistent with some of the injuries suffered by the deceased. 69The medical evidence was that "if the force applied caused the head to move backwards and forwards, that's the force that's most likely to give you a subdural". I am prepared to infer, as the jury should have, that a punch to the face, or rather four punches to the face, was precisely the kind of force which could produce a subdural haemorrhage of the deceased's brain. This is particularly so if the punch was administered in a "savage" way. 70Moreover, the evidence of Mr Jones as to his observation of the person in the light coloured clothing "trying to get up, he was very groggy" is consistent with that person being in some difficulty. This was confirmed by the observations of Ms Black of the person in light coloured clothing being lifted from the ground by one of the "Islanders", with the "Islander" having his hand clenched on the top of the shirt. 71The high point of the Crown case is the evidence of Detective Flippence. His evidence was that if there was no blood on the deceased's face and the deceased fell to the ground, that would not create the sort of blood spatter which was found on the nearby wall. Detective Flippence said: "- the first downward force would create an injury which would create blood on the face and subsequent ones would create a spatter." 72Although Detective Flippence was prepared to accept that if the deceased was bleeding to the face and had simply fallen on the ground that would be consistent with the blood spatter pattern found, he doubted such a scenario because "for somebody to be standing there and bleeding to a medium to large extent on his face, he would almost certainly have blood underneath the chin and collar and upper chest area of the jumper". Since blood staining was minimal in that location, he thought that scenario was unlikely. 73When asked to explain other scenarios for how the blood spatter could have been present on the wall, he said "could have been the deceased lying down trying to get up losing consciousness and coming back down on the concrete. Could have been the deceased falling. As long as he had the blood that was evident on his face and on the concrete underneath." 74There was evidence that the deceased had blood on his face. Mr Cross said that the deceased was bleeding "before he left us". In re-examination he explained that he was bleeding from the mouth. When asked to say how much blood was coming from his mouth, he said "Just like you know, when you cut your lip and it just bleeds down". Mr Cross did not see any blood on the deceased's clothes. 75I infer from the answers provided by Mr Cross that his observation of the deceased was when the deceased was near to Mr Byrne and himself and was first punched by one of the "Islanders". He clearly did not see the deceased after he was punched a second time at the corner of The Crescent and Smart Street. There could have been more damage done to his face at that time. When Dr Ellis was describing the deceased's injuries he said that there were small abrasions and lacerations inside the deceased's lips which matched his teeth from which he inferred there was some kind of impact which had forced the lips back onto the teeth and caused some damage inside the lip and bleeding within the lips. Dr Ellis could not exclude blood coming from the deceased's damaged lips (T.523.4). 76There was no evidence as to how much of that blood could have flowed onto the chin and collar and upper chest area of the deceased if shortly thereafter he had fallen at the location where his body was found. Detective Flippence did not qualify his answers under cross-examination in relation to that scenario: "Q. So do I understand your evidence correctly, there are two ways in which that blood spatter pattern I've referred to - on the ground in front and on the besser block wall - one, possibly if he had a bloody face and there was a sudden downward movement where he hit head on the ground? A. Yes. Q. And that would cause the spattering immediately in front of him on the ground and on the wall? A. Yes." (T.301.31) 77There was also available the other scenario which Detective Flippence himself raised in chief and confirmed in cross-examination: "Q. Or ultimately, if there was no blood on his face, if there was a sudden downward motion where he hit his head on the concrete? A. Yes. Q. And then got up or tried to get up and hit his head again on the concrete? A. Yes. Again, as long as there was the presence of blood in that area." (T.301.41) 78The medical evidence decisively favoured the existence of a reasonable scenario consistent with innocence. The combination of punches received and the large ingestion of alcohol could have made the deceased unsteady on his feet, which is consistent with the description of a "groggy" person given by Mr Jones. Such a person might easily fall on his face, thereby breaking his nose without any intervention from a third party. Having done so, it was equally possible that he might try to get up, and fall again so as to cause blood spatter on the wall. 79The opinion of Dr Ellis that at least four impacts had been applied to the deceased's head does not eliminate that scenario. Such impacts are consistent with the evidence of punching and with the evidence of Mr Byrne, Mr Jones and Ms Black that the deceased was on the ground at an earlier point in time. They are also consistent with the scenario of a heavy fall on his face, followed by a secondary blow to the face when he tried unsuccessfully to get to his feet following the first fall. The generalised abrasions and bruising are no more consistent with the Crown case than with the scenario suggested by the appellant. 80When there was evidence of four punches to the deceased face, any one of which would have been sufficient to cause a subdural haemorrhage and no evidence of any blow having been received by the deceased from an external agency at the place where his body was found, it is difficult to see how a tribunal of fact could be satisfied beyond reasonable doubt that the fatal blow was received at that location. This is particularly so when the evidence of Dr Ellis was: Q. Could the subdural haemorrhage have been caused by the deceased falling to the ground and hitting his head on the concrete, the ground? A. Yes. Q. If it was the case that the subdural haemorrhage was caused as a result of somebody punching the deceased, could one punch, one single punch, cause that type of injury? A. Yes." (T.536.27) "Q. If any of those or one of those punches caused the subdural haemorrhage, is it reasonably possible that the deceased could have made his way into the car-park area and collapsed there? A. By "made his way" do you mean walk or run? Q. Walked or ran? A. Yes. Q. Is that a reasonable possibility? A. Yes. Q. Is it reasonably possible that having made his way into the car-park area, that he could have fallen to the ground in that area causing the broken nose? A. Yes. ... Q. Is it reasonably possible that if the deceased fell on the ground in the car-park causing the broken nose and bleeding, that he then could have tried to lift himself to get up and fallen again in that area. A. I couldn't exclude that possibility." (T.538.14) 81The fact that there was a pooling of blood around and beneath the deceased is neutral. In that regard, Dr Ellis said: "A. But it [blood] was certainly on the ground. The other thing we must not forget he was face down and obviously like that since death. That will cause a pooling of blood and if there's an injury, that can continue to ooze even if the heart has stopped. It's certainly consistent with a broken nose, yes." (T.538.44) 82On the basis of those facts, there was a reasonable scenario consistent with the appellant's innocence and I am not satisfied beyond a reasonable doubt as to his guilt. While having due regard to the advantage which the jury had in seeing and hearing witnesses, the nature of the evidence in this case was not of a kind as would make such an advantage decisive. In those circumstances, the jury should also have had a reasonable doubt as to the appellant's guilt. This ground of appeal has been made out. Ground of Appeal 2: The trial judge erred in the directions given to the jury with respect to the witness Ian Cross. 83In view of the conclusion which I have reached in relation to the first ground of appeal, it is not necessary to analyse this ground in detail. The criticism by the appellant is that the trial judge erred in warning the jury that the evidence of both Mr Byrne and Mr Cross "may be unreliable" so that the jury "would need to exercise caution in determining whether to accept their evidence and the weight to be given to it". 84The appellant submitted that the correct question for the jury was not whether they "accepted" the evidence of Mr Cross, but whether his evidence left them with a reasonable doubt as to the guilt of the appellant. 85In oral submissions the appellant said: "[His Honour] should have gone on to say that in the context of this trial where the defence does rely on the evidence of Mr Cross, the question's not whether you accept his evidence and, indeed, the warning I gave you about treating his evidence with caution really doesn't apply in the same way. At the very least you should, while you take into account his intoxication, the ultimate question for you would be in this context whether or not his evidence causes you to have reasonable doubt or is it a reasonable possibility that there were punches to the deceased, at least one, possibly more, in the light of the evidence of Dr Ellis and Detective Sergeant Flippence, does that cause you to consider that there is a hypothesis consistent with innocence." (AT7.11) Consideration 86This point was not taken at trial and accordingly leave to appeal is required pursuant to rule 4. Leave to rely on an error to which no objection has been taken at trial should only be granted where the appellant can demonstrate that the error has led to a miscarriage of justice: (R v Wilson [2005] NSWCCA 20 at [20]; Picken v R [2007] NSWCCA 319 at [20]; R v Kanaan [2005] NSWCCA 385; 157 A Crim R 238 at [99]; Carney v R; Cambey v R [2011] NSWCCA 223 at [67] - [70]. 87As is implicitly conceded by the appellant, the direction which his Honour gave was adequate in that he was providing a general warning in relation to evidence called in the Crown case. The complaint by the appellant is that his Honour should have gone further and pointed out to the jury that the defence was also relying upon the evidence of Mr Cross in its case and when considering his evidence in that context, it needed to be looked at differently. 88The appellant's submission puts the obligation of the trial judge at too high a level. This is particularly so in the context of this case. His Honour was very careful in his summing up to stress the obligation of the Crown to prove its case beyond reasonable doubt and the commensurate consideration that the defence did not have to prove anything. This his Honour did at SU [14] - [15], [18] - [20], [44], [51, [55], [57], [63], [66], [74] - [75], [78], [79], [80], [82], [91], [127] - [131]. Apart from fully summarising the defence case, the flavour of his Honour's directions to the jury can be seen from one of these many occasions when he reminded the jury of the obligations of the Crown: "91 As I have said, the accused's case, is that he did not kill the deceased and nor does he know who did. It is submitted on his behalf that all he has done, despite the fact that there is no onus upon him to do so, is to point to possible suspects. In the final analysis, he contends that there are a number of persons who may have killed the deceased. That being so, it is contended on the accused's behalf that the Crown has not excluded the reasonable possibility that one of those persons was responsibility for Russell Lyon's death. Of course it does not follow that even if the Crown has eliminated the reasonable possibility that no other identified person kill the deceased then the Crown will have, without more, provided its case beyond reasonable doubt." 89This ground of appeal has not been made out. There could have been no doubt in the jury's mind as to the obligation on the Crown to prove its case beyond reasonable doubt and to exclude the scenario put forward by the defence. Even if there were an error (which I do not accept) in his Honour's failure to give a specific direction concerning Mr Cross rather than a general warning concerning both him and Mr Byrne, the effect of such a failure on the jury's deliberations would have been minimal. This is so because of the comprehensive way in which his Honour stressed the obligations of the Crown by reference to the particular facts of this case. 90Accordingly, I would refuse leave to appeal pursuant to rule 4 with respect to this ground. Conclusion 91The orders which I propose are as follows: (1) I grant leave to appeal in respect of the first ground of appeal. (2) The appeal with respect to the first ground of appeal is allowed. (3) The verdict of guilty, entered on 7 July 2011 against the appellant should be quashed and in lieu thereof, there should be entered a verdict of acquittal in favour of the appellant. 92SLATTERY J: I agree with Hoeben CJ at CL. 93BELLEW J: I agree with Hoeben CJ at CL.