SPRUILL v R

R v Cakovski [2004] NSWCCA 280 Lean & Aland v R (1993) 66 A Crim R 296 CASES CITED : R v McCormack (1996) 85 A Crim R 445 R v Robinson [2003] NSWCCA 118 R v Sanford (1994) 33 NSWLR 172

PARTIES: Richard Spruill (Appellant) Regina (Respondent)

COUNSEL: M C RAMAGE QC (Appellant) P MILLER (Respondent)

SOLICITORS: Jeffreys & Associates (Appellant) Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2005/4599 DC 03/41/0194

HODGSON JA KIRBY J BUDDIN J

29 FEBRUARY 2008 Richard SPRUILL v REGINA Judgment 1 HODGSON JA: On 12 July 2005, the appellant was indicted before Murrell DCJ in the District Court of New South Wales on the following counts: (1) That he on 8 April 2003 at Nowra in the Sate of New South Wales did wound [the complainant] with intent to murder [the complainant]. (2) In the alternative, that he on 8 April 2003 at Nowra in the State of New South Wales maliciously wounded [the complainant] with intent to do grievous bodily harm. 2 The appellant pleaded not guilty, and was tried before her Honour and a jury of twelve. 3 On 29 July 2005, the jury returned a verdict of not guilty on count 1 and guilty on count 2. 4 On 4 October 2005, the appellant was sentenced to a non-parole period of six years to commence on 8 April 2003 and to expire on 7 April 2009, with a balance of term of four years to expire on 7 April 2013. 5 The appellant appeals from his conviction.

Crown Case 6 It is convenient to set out first matters evidenced in the Crown case that were not disputed at the trial or on appeal, and that can be taken as established for the purposes of the appeal. 7 The complainant was born in 1978, met the appellant in 1998 and married him in 2001. They had two children. In March and April 2003, the complainant was separated from the appellant and had custody of the younger child Crystal, who was born on 4 September 2001. The elder child was then in the care of the complainant's mother. The appellant was living in Sydney, and the complainant had moved to Nowra, and was living at 3/6 Shorland Place. A friend Michael Eggington had been staying with her for some days prior to 8 April 2003; and a friend of Eggington, Darren Griffiths, arrived the previous day and stayed overnight. 8 At about 8.30 am on 8 April 2003, the appellant came to the front door of this unit. The front door was open and the screen door was locked. The appellant asked to be let in. The claimant refused, and an argument developed. The appellant commenced kicking the screen door, and the complainant telephoned 000 and requested the police. This call was timed at 8.40 am. 9 Shortly afterwards, the complainant dropped the telephone and left it off the hook. The appellant kicked the window next to the door, and shattered the glass. The complainant's daughter was nearby and was cut by glass. The complainant picked up the daughter and went away from the front door down a hall towards the bedrooms. 10 The appellant entered the unit and spoke to Eggington and Griffiths, and they left the unit through the broken window. Eggington then called the police on his mobile phone. Shortly afterwards, the appellant left the unit through the broken window, and ran off down the street. 11 The complainant unlocked the screen door and came out of the house with Crystal. Her throat had been cut, and she was holding a roll of toilet paper against it. She also had a wound to her chest caused by a sharp object. 12 The recording of the 000 call was in evidence. After a period of about half a minute to a minute in which the operators' voices are heard (and also a male voice saying "get the fuck out"), there is a period of about a minute in which loud female screaming can be heard, and also a baby's crying, and male and female voices that are difficult to make out. Towards the end of this period, a female voice can be heard quite clearly saying "Mick, help me with the baby please". 13 A neighbour, Anita Reeve, saw through her window the appellant running down the street, and then went outside and saw the complainant sitting in her doorway holding something to her neck. 14 The Ambulance Service received a call to go to the premises at about 8.45 am. 15 Police arrived at the premises at about 8.55 am. One of the police officers, Constable Belinda Wiley, gave the following evidence on which she was not cross-examined, reading initially from a statement she had prepared using her notebook, and later from the notebook itself: A. Yes. "On Tuesday the 8th day of April 2003 Constable Elrihawi, Probationary Constable Dudley and I were at Nowra police station when police radio directed us to attend 3 of 6 Shorland Place, Nowra. Constable Elrihawi, Probationary Constable Dudley and I immediately left the station in Shoalhaven 18."

Q. Shoalhaven 18 I take it is some vehicle? A. Yes, that's our call sign we use over radio and that was the vehicle that we were assigned to that day, Constable Elrihawi and I.

Q. Keep reading. A. "We arrived at 3 of 6 Shorland Place, Nowra at 8.55am to see a female person who I now know as the complainant, Renee Spruill, crouched down in the front doorway of flat number 3. Spruill appeared to have blood all over her and over the ground. I immediately called for an ambulance and jumped out of the vehicle. As I entered the side gate of the flat I saw three males standing out the front. The two males standing on the front lawn in front of Renee's" - sorry, I'll just go back. "Two males were standing on the front lawn in front of Renee Spruill's flat. I know these males to be Darren Griffiths and Michael Justin Eggington."

Q. I'll stop you there. Did you identify them on that day, that was the first time you met them? A. Yes. I didn't know them beforehand.

Q. You can continue. A. Okay. "The other male I already knew as Dale Seymour."

Q. Where was he standing? A. Dale Seymour was standing out the front of his flat which I think was number 4.

Q. Continue at paragraph 6. A. Okay. "I went straight up to Renee Spruill in the doorway. Renee had blood all over her and she was holding a maroon towel up to the right side of her neck. I once again asked Renee, 'Who did this to you?' Spruill replied, 'My ex-husband.' I said, 'What's his name?' Spruill replied, 'Richard Spruill.' I didn't quite hear the surname so I said, 'Richard who?' She said, 'Spruill."

Q. If you can continue at paragraph 7. A. Okay. "I then asked Renee Spruill, 'What is he wearing?' She said, 'Green pants, a black top. He's also African American.' I relayed this information to Constable Elrihawi who recorded this information in my official police notebook as I had blood on my hands at the time."

Q. If I can just stop you there. In relation to the conversation that next happened is that one that is not in your statement? A. Yes. Yes, some of that's not in my statement.

Q. Is it in the notebook entry on 8 April 2003? A. Yes.

Q. Is there a reason why it's in your notebook but not in your statement? A. Yes, I've got some conversation that was in the notebook that I haven't included I realise that in my statement and I guess that's due to my inexperience at that stage with making statements and being a junior police officer at that stage.

Q. And did you then have a further conversation with her? A. Yes, I did.

Q. And is part of that further conversation also one that's in your notebook but not in your statement? A. Yes, that's correct.

Q. If you go to page 124 of your notebook. A. Yes.

Q. Was there recorded there a comment that the complainant made to you? A. Yes, there is.

Q. And what was it that the complainant said to you? A. "The complainant said, He said he was going to kill me. I said to her, It's all right, we're here now, we'll get him."

Q. Now in relation to the conversation that continued, is that then recorded in your statement at paragraph 8? A. Yes.

Q. You can start then at the second line. A. Okay. "I had a further conversation with Renee Spruill asking her does Richard have a weapon on him. Renee Spruill said, I don't know. That's when Eggington informed us that Richard had a knife. Renee Spruill started to panic, so I kept talking to her to keep her calm. I asked her, What did he do with this with? Renee Spruill said, I'm not sure, glass I think. I said, So a piece of glass? She said, I don't know. 16 An ambulance arrived a few minutes later. One ambulance officer asked the complainant what had happened, and she said "My husband attacked me". 17 The appellant was arrested by police at about 9.30 am. One of the arresting officers gave this account of a conversation at the time: Q. You told us just before lunch that the accused was placed into your police vehicle and you had a conversation with him. A. That's correct.

Q. If you can return to your statement if you still have that in front of you and if you can tell us what that conversation was. I'll just indicate I'll stop you at one point. A. Okay. "I had a short conversation with the male. I said, 'Can you tell me what your name is?' The defendant said, 'It's Richard Spruill.' I said, 'Where do you come from, Richard?' The defendant said, 'From North Ryde. Unit 3 of 2 Ivanhoe Street, North Ryde.' I said, 'Richard, you understand you are under arrest for a serious assault in Nowra. I have been asked to arrest you and take you back to Nowra. Do you understand that?' The defendant said, 'Yes, sir.' I said, 'Richard, you are not obliged to say or do anything unless you wish but anything you say or do may be used in evidence. Do you understand that, Richard?' The defendant said, 'Yes, I do.' I said, 'Richard, tell me what that all means to you?' The defendant said, 'It means I don't have to talk about anything if I don't want to.'"

Q. If I can just stop you there. Was there then further conversation between yourself and the accused, Mr Spruill? A. Yes, that's correct.

Q. Did he make mention during that conversation of the address in Shorland Place, East Nowra? A. Of an address in Shorland Place, that's correct.

Q. Did you then continue to speak with him? A. Yeah.

Q. And if you can continue with your statement. I said what happened, that section. A. "I said, 'What happened there, Richard?' The defendant said, 'I walked in, I saw two blokes sitting at the table shooting up heroin. They were sticking needles in their arms in front of my daughter. I don't want to say anymore.' I said, 'Richard, we are now going to Kiama police station and shortly after we will be going to Nowra, okay.' The defendant said, 'Yeah, mate.' I then noticed a small cut on the finger of the right hand. I said, 'Richard--

Q. On whose right hand? A. The defendant's. "I said, 'Richard, how did you get the cut on your hand?' The defendant said, 'Oh, just on some glass that's all.'" 18 There was some challenge to this officer's evidence, because of a conflict between his evidence and that of another officer, as to whether the other officer was with him at the time. But there was no suggestion that this record of the conversation was inaccurate. 19 I interpolate here that the appellant did not give evidence at the trial, and there was no other evidence of any account by the appellant of what had happened. However, one of the expert witnesses said he had been told by police that the appellant claimed that the complainant had inflicted her injuries on herself; and that in fact was the essence of the appellant's defence at the trial. 20 The appellant was observed by police after his arrest to have a cast on his left forearm, going about three-quarters of the way up his forearm, with a bandage round it. This cast had been observed also by the complainant and the other two men at the complainant's unit. 21 The rest of the Crown case consisted mainly of evidence by the complainant, Eggington and Griffiths; and forensic evidence. This evidence was challenged by the appellant. 22 Briefly, the complainant's evidence was that the appellant attacked her, punched her, put her in a headlock using his left arm that had a "sling" on it, and said words to the effect that if he couldn't have her no-one else could; and that she felt a scratch on her neck, heard the appellant say, "so you want to die bitch", and then realised that her throat had been cut. She admitted that in March and April 2003 she was using crystal amphetamine very frequently, and that she also used other illegal drugs. In cross-examination, she admitted she had told health authorities in 1997 that she had tried to commit suicide, and also admitted that medical records documenting a past history of suicide attempts were correct. She was aware that a high concentration of amphetamine was found in her system at the hospital after the incident. 23 Eggington's evidence included evidence that, when the appellant came into the unit, he had a knife in his right hand, and that he saw the appellant punch the complainant. Eggington admitted using marijuana, and also a number of dishonesty offences; but denied using other drugs, and denied that he used drugs on the night before the incident or the morning of the incident. 24 Griffiths' evidence also included evidence that, when the appellant came into the unit, he had a knife in his right hand. Griffiths admitted to using speed that night, together with Eggington, but he denied he was taking drugs when the appellant came into the unit in the morning. 25 The forensic evidence concerned the condition of the unit and the appellant's clothing. 26 Apparent blood staining was seen at the unit inter alia on the west side of the lounge room near the entrance to the hall, at the entrance and on the door to bedroom one, and on the wall of the hallway near the entrance to bedroom two. 27 The appellant's clothing had some brown stains on it, and was given presumptive testing for blood stains. Three areas on his shirt responded positively, and there were positive results also on his singlet, pants, jacket, shoe and underpants. 28 Evidence of Johan Duflou, the Chief Forensic Pathologist of the Department of Forensic Medicine, was that it was unlikely that the complainant's wounds to her neck and chest were caused by glass, but that they could have been caused by a knife. He also said that blood drops on the appellant's shirt were most likely to have come from blood dripping from a height and landing on the shirt when the shirt or the relevant part of it was horizontal; although there was a less favoured possibility that the blood could have sprayed on to it from an object. The high reading of amphetamine (0.38 milligrams per litre) in the complainant's blood indicated high amphetamine use; and the toxic effects of amphetamine included violence, and could cause an acute psychosis. 29 One of the spots of blood on the appellant's shirt was found to have DNA with the same profile as the DNA of the complainant.

The Appellant's Case 30 As noted earlier, the appellant's case was to the effect that the injuries to the complainant were caused by the complainant herself, and were not shown beyond reasonable doubt to have been caused by the appellant. 31 The appellant's only witness was Professor Starmer, an expert on the effects of drugs on people's behaviour. Among the effects of methamphetamines are violence, paranoia, hallucinations and psychotic episodes. The violence could be directed towards others or themselves. Professor Starma found it hard to believe that the complainant had not had methamphetamines for two days before the sample was taken, because the concentration would indicate a very very large dose if taken earlier.

Issues 32 The appellant relied on three grounds of appeal: 1. The trial miscarried. 2. There was a miscarriage of justice. 3. The verdict was unsafe and unreasonable in all the circumstances. 33 Mr Ramage QC for the appellant supported ground 1 by pointing to a number of alleged erroneous rulings by the trial judge. I will deal in turn with these rulings, and then deal together with grounds 2 and 3. 34 On each matter, Mr Ramage's submissions were comprehensive and detailed. I have read them carefully, but will summarise them briefly here rather than reproducing them in their full detail.

Presumptive Evidence of Blood Stains 35 Constable Vucko, the crime scene officer, produced photographs with captions marked "blood stains", including captions identifying various marks on the appellant's clothing. These were admitted over objection. The Crown also sought to lead evidence of presumptive blood tests using a hemastix marker. This was objected to, and the trial judge allowed it as "indicative evidence", holding in terms of ss 135 and 137 of the Evidence Act that there was little relevant prejudice. 36 Mr Ramage submitted that it was a very important part of the Crown case to establish that there was blood on the appellant's clothing, and since these presumptive tests were inconclusive, the evidence was highly prejudicial. He submitted that the prejudice was not overcome by explaining to the jury the limitations of the evidence or by concessions from the Crown that there were three possible sources for any blood that might have been on the appellant's shirt (the complainant, the accused and Crystal). He referred to R v Robinson [2003] NSWCCA 118, in which there had been a similar ground of appeal; but pointed that in that case, the Court of Criminal Appeal had noted that the evidence had not been objected to and was of little significance. 37 I note that in R v Robinson the Court (Beazley JA, Hidden J and Caruthers AJ) at [188] commented that evidence of this kind was frequently led in murder trials, but suggested to the effect that it should not be led as a matter of course, without consideration of its relevance to the issues in the case at hand. 38 In the present case, the clothing of the appellant and photographs of that clothing were in evidence, showing stains that could have been blood stains. The trial judge explained, inter alia at paragraph [101] of the Summing Up, the limitation of the test. In my opinion, while it assisted the Crown case that the appellant's clothing gave an appearance that was consistent with exposure to blood, it was not a very important part of the Crown case to establish that the stains were in fact blood. Indeed, in circumstances where the appellant's defence was equally consistent with the complainant's throat being cut in the presence of the appellant or in the absence of the appellant, even the detection of the complainant's blood on the appellant's clothing would not be inconsistent with the defence. 39 The Evidence Act in s 55 provides that relevant evidence is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings". The presence of blood, and even the presence of bloodlike stains, on the appellant's clothing was relevant, because the absence of such stains could rationally have affected the assessment of the probability of the complainant's throat being cut while in close proximity to the appellant. It could further rationally affect the assessment of this probability if it were shown that the stains were in fact blood, or even if some alternative explanations for the stains were excluded. The presumptive tests in this case had the effect of excluding some, though not all, alternative explanations, and thus were relevant. In circumstances where the limitations of the tests were explained to the jury, and in circumstances where the question of whether these stains were or were not blood was not of great importance in the Crown's case, the probative value of the evidence was certainly not outweighed by the danger of unfair prejudice.

Restriction of Cross-examination of the Complainant 40 The trial judge rejected questions of the complainant to the effect that, some seven years before, she had attacked people using a syringe. 41 It was put to the trial judge that this was relevant as indicating an aggressive and/or antisocial personality, and a willingness to use weapons, and also familiarity with drug use (and thus relevant to the appellant's case that he saw drug use at the premises). Mr Ramage submitted further that it supported the defence case in circumstances where the complainant had attempted and threatened suicide. Mr Ramage referred to R v Cakovski [2004] NSWCCA 280. 42 Cakovski was an unusual case, in which a person accused of murder raised self-defence in circumstances where he had stabbed an unarmed man, alleging that, despite his possession of a knife, the deceased had persisted in aggression and threats to kill him. There was evidence that the deceased had killed three people 23 years earlier, and that a few hours before his death he had threatened to kill another person "like I killed the other three people". The Court of Criminal Appeal considered that this evidence had substantial probative value, in relation to a question whether there was a reasonable possibility that the deceased had acted in what, at least in the absence of the evidence, could be considered an extremely improbable way. 43 In the present case, in my opinion the primary judge was correct to hold the evidence was not relevant. The bare fact of the alleged aggression against others, seven years earlier, had no relevance to the appellant's case that the complainant could have inflicted the injuries on herself, and no relevance to the suggestion on behalf of the appellant that two men (not the complainant) were using drugs when he entered the premises. Particularly this is so in circumstances where the complainant was not disputing her history of suicide attempts and not disputing her own drug taking. To the extent that the evidence was relied on as going to the complainant's credit, in my opinion, in the context of this case, it could not have had substantial probative value, in terms of s 103 of the Evidence Act.

Opinion Evidence 44 Evidence was given, over objection, by Detective Senior Constable Asplin, the officer in charge of the investigation, who attended at the premises at about 9 am on 8 April 2003 and spoke to Eggington and Griffiths. In answer to a question "was there anything about the way they spoke with you or their body movements that indicated to you that they were under the influence of illegal drugs?", Detective Asplin answered "No". 45 Mr Ramage submitted that the possible effects of drugs on these witnesses was material to the accuracy of their evidence; and the appellant's case was that he saw drug paraphernalia on the table when he entered the premises. Mr Ramage submitted that the experience of Detective Asplin over 15 years in the police force dealing with several hundred people apparently affected by drugs did not qualify him to give this evidence, because it did not qualify him an expert as to when a person was not affected by drugs. 46 In my opinion the evidence was properly admitted. Detective Asplin did not give evidence that the witnesses were not affected by drugs, or even that they appeared to be not affected by drugs, but rather that there was nothing about the way they spoke or their bodily movements that indicated they were affected by drugs. If, as the appellant seems to concede (correctly, in my opinion), Detective Asplin was qualified to give evidence of indicia that a person is affected by drugs, he was also qualified to give evidence that those indicia were absent. 47 Whether or not it could be inferred that the witnesses were not affected by drugs would depend on all the circumstances, and it was a matter for a jury whether they did or did not draw such an inference.

Direction on Unreliability 48 Mr Ramage submitted that the trial judge should have given a direction under s 165(1) of the Evidence Act in relation to the evidence of Eggington and Griffiths, relying particularly on paragraph (c). The provisions of s 165(1)(c) and s 165(2) and (3) are as follows: 165 Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: ……

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

(2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

……. 49 Mr Ramage submitted that, because of the evidence by Griffiths of consumption of drugs during the evening of 7 April, the evidence of Eggington and Griffiths fell within paragraph (c) (being of the nature of "ill health") and also was generally of a kind that may be unreliable. 50 In my opinion, it was well open to the trial judge not to be satisfied that the evidence of Eggington and Griffiths was of a kind that may be unreliable, within the meaning of s 165(1). Even accepting Griffiths' evidence that he and Eggington consumed a $50 quantity of speed at around 6 or 7 pm the previous night, the trial judge was not bound to find they were affected at the time of the incident over 12 hours later. The hearsay evidence of the appellant's allegations, made at the time of his arrest, would not have justified a conclusion that these witnesses were affected by drugs.

Directions on Recklessness 51 Although the appellant was charged on only two counts, the trial judge raised and decided that malicious wounding simpliciter should be left to the jury as an alternative to the second count, and the trial judge called this count 3. In relation to count 3, the trial judge directed the jury that maliciousness also covered the situation where the accused acted recklessly and wantonly, realising that he might wound the complainant but did not care, one way or the other, whether he did so. 52 Mr Ramage submitted that the jury was likely to have been misled and confused by the introduction of recklessness into the element of maliciousness so late in the day, and may have incorrectly substituted that for the specific intent required under the second count, or else been prompted to find intent under the second count because they rejected recklessness. 53 In my opinion, the directions made it clear that the directions only related to "count 3"; and because the jury convicted on count 2, the jury did not get to consider count 3. In my opinion, there is no sufficient reason to think the jury was confused or misled.

Verdict Before Directions Complete 54 Towards the end of the trial judge's summing up, the trial judge told the jury she would send to the jury room a document "so that you know how the verdicts go". The jury retired to consider their verdict at 2.17 pm on 28 July. Due to disagreements about the form of the document, it was not given to the jury that afternoon. Next morning, before the document was finally formulated, the judge received a message that there was a jury verdict. The judge said she would print out the document "and then have it given to the jury and then I will just wait a minute or so before bringing the jury in". It was not disclosed in the transcript that the jury were in fact provided with the document. A matter was interposed, and the jury gave its verdict at 11 am. 55 Mr Ramage submitted that the judge should ensure that all directions are complete before the jury commences to consider its verdict (and a fortiori) before it reaches a verdict): McCormack (1996) 85 A Crim R 445, Lean (1993) 66 A Crim R 296, R v Sanford (1994) 33 NSWLR 172. 56 In my opinion, the document in question was not part of the directions to the jury. At paragraph [320] of the Summing Up, the trial judge explained what would happen when the jury's verdict was taken. At paragraph [321], she said "I think what I might do is actually prepare a document and what I will do is I will show it to the barristers and when they are happy with it I will send that into the jury room so that you know how the verdicts go." She went on "I am sorry that, at the end of a lengthy summing up I have rather muddled that up but when you get this document, you will understand clearly what the options are and, if not, you should certainly inquire." 57 There was in fact no error in the explanation given in paragraph [320]. In my opinion, it was not an error by the trial judge to send the jury out before she provided this document, and no error in taking the verdict shortly after the document was provided. I would infer that the document was provided; but I would add that even if it was not, the circumstances would not suggest any miscarriage of justice.

Unreasonable Verdict? 58 Mr Ramage pointed to what he said were a number of unsatisfactory features of the case that should have caused a reasonable jury, properly instructed, to have a reasonable doubt about the guilt of the appellant. 59 Mr Ramage submitted the Crown case was consistent with attempted suicide: the medical evidence did not exclude the complainant having caused injury to herself; the complainant habitually kept a knife or knives under her bed or pillow; the level of drugs in her body was consistent with her being in a state of paranoia and/or depression, and of being prone to violence towards herself or others; and she had threatened and attempted to commit suicide. 60 Mr Ramage submitted that no reliance could be placed on the complainant's evidence: it was redolent with contradictions, evasions and misstatements; she admitted she told lies and mixed reality and unreality; she gave contradictory evidence about her consumption of drugs; she was unable to give any coherent description of how the laceration occurred, of alleged punches or punching, of the alleged headlock, or of where she went and put Crystal (her accounts being inconsistent with the location of blood stains in the unit); her evidence of what was said was not supported by the triple-O tape; and she gave inconsistent stories to doctors. 61 Mr Ramage submitted that Eggington and Griffiths contradicted the complainant and were themselves unreliable. Both had spoken to the complainant before making their statements. They gave unsatisfactory and/or inconsistent versions as to the events of the previous evening, as to how Griffiths came to be at the premises, as to the consumption of drugs, as to the events of the morning, as to how the alleged assault occurred, and as to Eggington chasing after the accused. 62 Mr Ramage submitted that the objective evidence concerning blood was unreliable. In particular, the spot of blood on the appellant's shirt, consistent with the complainant's DNA, was most unlikely to have got there at the premises, because the expert evidence was that it probably dropped on to the shirt when the shirt was in a horizontal position. Police evidence and records were unreliable in many respects. The blood could have got onto the appellant's shirt from the sample of the complainant's blood taken at the hospital and set aside for the police, or could have been dropped from the bloody towel or clothing of the complainant taken by the police. 63 In my opinion, the question of the reasonableness of the verdict should be approached having regard to the issue that the jury had to decide. They heard the triple-O tape. They could properly conclude beyond reasonable doubt that the male voice saying "get the fuck out" was the appellant telling Eggington and Griffiths to leave, shortly after he entered the unit. They could properly conclude beyond reasonable doubt that the female voice saying "Mick help me with the baby please", heard about one minute later, was the complainant asking for help about the time she came out of the unit to join Eggington and Griffiths, after her throat had been cut. A crucial issue in the case, having regard to the way it was conducted, was whether there was a reasonable possibility that, during this time of about one minute, the complainant may have cut her own throat and stabbed herself in the chest; and if the jury were satisfied there was no reasonable possibility that this happened, they could be satisfied beyond reasonable doubt that it was the appellant who caused her injuries. 64 In considering this issue, a reasonable jury would take into account that the appellant had violently broken into the unit, that he had told Eggington and Griffiths to leave, that almost continuously throughout the period of about one minute that followed the complainant could be heard screaming, and that for some of that time a baby could be heard crying; that at the end of this period the complainant was heard asking Eggington to help her with the baby; that about this same time the appellant was running away down the street; and that within about ten minutes the complainant was telling police that the appellant did "this" to her and had said he was going to kill her, and Eggington was telling police that the appellant had a knife. The question then was, was there a reasonable possibility that the complainant, in this particular period of about one minute, located a knife, used it in the vicinity of her daughter to cut her own throat and stab herself in the chest, and that she then (or within a period of about ten minutes before the police arrived) disposed of the knife in such a way that the police did not find it. 65 Giving full weight to Mr Ramage's submissions about the complainant's history of threatened and attempted suicides, it is in my opinion unlikely in the extreme that, in circumstances where the complainant had been confronted by the appellant, who had violently broken into her unit, and where she was continually screaming, she would have conceived and carried through the idea of getting a knife and cutting her own throat and stabbing herself in the chest, in the presence of her child, and would then have emerged from the unit asking for help with the child. 66 The circumstances strongly corroborated the substance of the complainant's own evidence as to what happened; and the considerable problems pointed out by Mr Ramage about the complainant's general credibility and about the details of her evidence do not in my opinion significantly affect the credibility of the substance of her account. I note in particular that the circumstance that the complainant did not give evidence of seeing the appellant with a knife, as did Eggington and Griffiths, does not detract from the credibility of the substance of her evidence, but on the contrary tends to suggest she was not giving a contrived account. 67 Similar comments can be made about the considerable problems pointed out by Mr Ramage about the general credibility of Eggington and Griffiths and the details of their evidence. In my opinion, however, their evidence, insofar as it related to matters in dispute, contributed little to the positive Crown case, apart from their evidence that they saw the appellant carrying a knife (this being consistent with Eggington's statement to police shortly after the incident). They were both outside at the time of the alleged assault, although Eggington did give evidence of seeing the commencement of it. 68 As regards the police evidence, there is substance in Mr Ramage's criticisms of the unreliability of the police records and as regards other aspects of the police evidence. However, the only really significant aspect of the police evidence as regards matters seriously in dispute was the evidence concerning the spot of blood with DNA matching that of the complainant; and even that was of less than crucial significance, because it was consistent with the appellant's defence that the complainant could have cut her throat while he was present. In any event, the expert evidence did not rule out the possibility that the spot could have got on to the appellant's clothing while the appellant was standing close to the complainant; and to the extent that the expert evidence suggested that this was unlikely, the jury could weigh this against what could be considered the unlikelihood of it getting on to the appellant's clothing, either accidentally or by design, at some later stage. 69 In all the circumstances, in my opinion a jury could reasonably be satisfied beyond reasonable doubt of the guilt of the accused. Indeed, it is difficult to see how they could have arrived at any different conclusion.

CONCLUSION 70 I propose the following order: appeal against conviction dismissed. 71 KIRBY J: I agree with Hodgson JA. 72 BUDDIN J: I agree with Hodgson JA. **********

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