District Court New South Wales Medium Neutral Citation: R v Trimmings [2021] NSWDC 156 Hearing dates: 27 January 2021 and by submissions Date of orders: 03 February 2021 Decision date: 03 February 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: I find the accused not guilty. Catchwords: Criminal law – judge alone trial – manslaughter –no obvious signs of injury- 'sorry business' – domestic relationship – expert evidence – relationship evidence – not guilty verdict Legislation Cited: Crimes Act 1900 Evidence Act 1995 Cases Cited: Barca v The Queen (1975) 133 CLR 82; [1975]HCA 42 Frawley (1992) 69 A Crim R 208 Harriman v The Queen (1989) 167 CLR 590 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 Plomp v The Queen (1963)110 CLR 234; [1963] HCA 44 R v AM (2000) 117 A Crim R 176 R v PL 261 ALR 365; [2009] NSW CCA 256 R v Toki (2000) 116 A Crim R 536; [2000] NSWSC 999 The Queen v Baden‑Clay (2016) 258 CLR 308; [2016] HCA 35 Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 Wilson v The Queen (1970) 123 CLR 334 Category: Principal judgment Parties: Regina (Crown) Greg Trimmings (Accused) Representation: Counsel: Mr Pincott (DPP) Mr Wilson SC Solicitors: Mr Thomas (DPP) Ms Somerville File Number(s): 2018/00135821 Judgment 1. HIS HONOUR: I find Greg Trimmings not guilty and I enter a verdict of acquittal in relation to the record. The following are my reasons for doing so. INTRODUCTION 1. The accused, Gregory Trimmings, was in a domestic relationship with Ingrid Driver. In November 2017, they moved to Albury from South Australia. Eventually they were housed at 24/398 Olive Street, Albury. They resided in a one‑bedroom apartment. At 7.37am on 30 April 2018, the accused called triple‑0 and said to the operator that: "There is a lady there. She got - she is, like, unconscious, and, like, blood coming out of the mouth … or nose or something … and then her grandmother died, and she was knocking her head, like headbutting the wall." 1. He told the operator that he had left the address and was not able to go back and help her. Police and ambulance responded to the call, locating the deceased lying on a sofa bed in the unit. There was an amount of blood on the pillow and an area near the deceased. She was unconscious. 2. At marker D7, the door frame of the bathroom, there was blood of the deceased. There were no obvious signs of injury, but the blood from the mouth/nose indicated a suspected head injury. The deceased was taken from the unit to the Albury hospital. There was no obvious blood or damage to the walls of the residence other than at marker D7. 3. The deceased was pronounced dead at Albury Hospital at 7.30pm on 30 April 2018. The direct cause of death was a right subdural haemorrhage. Other significant conditions contributing to the death were alcoholic liver disease and broncho‑pneumonia. The autopsy report showed signs of bruising around the neck, right and left upper arms, and buttocks. There were no acute injuries to the mouth, tongue, lips or gum. The external examination of the scalp showed no injury, but on internal examination, an area of bruising was present. The accused was arrested. He did not have any signs of any injury to his hands. THE CHARGE 1. The accused is charged with, "On or about 29 April 2018, at Albury in the state of New South Wales, did unlawfully kill Ingrid Driver," contrary to s 18 (b) of the Crimes Act 1900. The Crown case is that the accused assaulted the deceased, and caused injuries that led to her death. Those actions amounted to an unlawful and dangerous act. The case against the accused is a circumstantial case. PROOF IN A CIRCUMSTANTIAL CASE 1. The crown must prove beyond a reasonable doubt: 1. that Ingrid Driver died; 2. that it was a deliberate act of the accused, which caused, or substantially contributed to the death of Ingrid Driver; 3. that the act was unlawful; and 4. the act of the accused was dangerous. 1. The Crown case is that the "unlawful" act of the accused involved an assault or assaults upon Ingrid Driver. An assault means the deliberate striking or application of force to another person and, where in circumstances of this case, such an assault is unlawful. 2. An act is "dangerous" if it is such that a reasonable person in the position of the accused would have realised that by that act or acts, Ingrid Driver was being exposed to an appreciable risk of serious injury. It does not matter whether the accused believed that his act was dangerous. The test is whether a reasonable person, that is, an ordinary member of the community in the position of the accused, would have realised or appreciated that the act was dangerous. THE TRIAL 1. The Crown tendered; the indictment (exhibit 1); the consent to a judge alone trial (exhibit 2); the Crown case statement (exhibit 3); four lever arch folders of evidential material (exhibit 4); transcript of the Local Court proceedings 10 July 2019, cross-examination of Dr Vuletic (exhibit 5); The Crown made oral and written submissions (MFI 1); Counsel for the accused tendered a report of Dr Duflou (exhibit A); documents A to E, contained in a bundle of defence documents described in heading 4 contents list (exhibit B) and, Counsel made oral and written submissions (MFI 2). CONTEXT/RELATIONSHIP EVIDENCE 1. On 5 March 2020, a tendency notice dated 5 March 2020 was served. On 21 September 2020, during a mention of the matter, the Court was informed that the Crown no longer relied upon matters contained within the tendency noticed as tendency evidence, and would seek instead to rely upon the material as evidence of a relationship. Where the accused and another person have been living together over a lengthy period of time, before the occurrence of the act which gives rise to the charge before the Court, the relationship between the parties will be admissible if it is relevant to the facts in issue in the trial: Harriman v The Queen (1989) 167 CLR 590 at 630; R v Toki (2000) 116 A Crim R 536 at [23]. 2. The evidence of the relationship between the accused and another person can be admissible in order to put the facts giving rise to the charge into a proper context so that the jury can understand the acts of the accused relied upon by the Crown against the background of the circumstances that existed at the relevant time: Wilson v The Queen (1970) 123 CLR 334 at 344; R v Toki (2000) 116 A Crim R 536 at [24]. 3. The evidence is admissible to prove the relationship between the complainant and the accused, where an understanding of that relationship is important to the determination of guilt. Such evidence serves two purposes. The first is to explain what happened, and why it happened. The second is to furnish the context within which the allegations against the accused may be examined: R v AM (2000) 117 A Crim R 176 Kirby J at 181. 4. In summary form, the evidence is as follows: SOUTH Australian Evidence September 2012-2017 Kaye Enalanga: She is the sister of the deceased. She was aware of the relationship in Adelaide between her sister and "a white fella." The mother told her that she did not like him because of the way he treated the deceased and was violent to her. The statement is remote in time and what was said by the mother is hearsay. Yvonne Driver: She is the mother of the deceased. In South Australia, she observed the accused punch her daughter to the mouth and on another occasion punched her above the eye. The evidence is admissible but suffers from the deficiency of remoteness in time. In para [6] of her statement, she says that the deceased told her that the accused punched her on the top of her head while she was sleeping. Mr Wilson SC, on behalf of the accused, submits that the evidence is inadmissible as it is firsthand hearsay and relies upon Frawley (1992) 69 A Crim R 208 Gleason CJ at 220-221. I accept that submission. It may be admissible pursuant to s 65 of the Evidence Act if the maker is unavailable and it is reliable. I reject the evidence. Sadu Kadi: A homeless person in Adelaide who knew the deceased and the accused. The witness described the accused grabbing her by the throat and punched her to the jaw. The witness recounted a second occasion when the accused punched her to the jaw and she fell backwards. The assaults occurred in Adelaide before September 2017. The evidence is remote in time. Francesa Meaker: The statement does not provide any identification, other than observing an Aboriginal woman and a white man who lived in a house in Chestard Street, Elizabeth. They would yell and swear. It does not have probative value and is remote in time. ALBURY EVIDENCE 1. In January and February 2018, witnesses overheard verbal abuse and heated conversations between the accused and the deceased, including a conversation in which the accused said, "I'll fucking smash you and I'll fucking kill you": statement Samuel MacDonald 4 May 2013 at [5]-[8]. And verbal abuse in which the male was the aggressor, yelling and screaming, and constantly threatened to harm the female, saying, "I'm going to fucking kill you, I don't give a fuck about gaol, you're a cunt." This continued up until Easter: statement of Karlen Holloway dated 4 May 2018 at [5]-[7]. 2. Another witness living directly above them would hear the accused screaming and swearing at the deceased, "Fucking slut, your kids are all born from a whore": statement of Ellen Long dated 30 April 2018 at para [6]. In about April 2018, Judith Clarke heard the accused screaming at the deceased from morning until evening. She heard the words, "You're nothing but a fucking cunt." Miss Clarke describes the abuse lasting for hours and became worried and concerned for the deceased's safety. The abuse was repeated the following day in the same manner, over a similar period of time: statement of Judith Clarke 7 May 2018 at [7] and [8]. 3. Ms Mhari Pullan also expressed fear for Ms Driver when she witnessed the accused yelling aggressively at her in late April 2018: statement Mhari Pullan 8 May 2018 at [4]. Another witness spoke of confrontations between the accused and the deceased in which he screamed at her and called her, "Bitch, cunt, whore". This was a daily occurrence with the male as the aggressor: statement of Ethan Waller dated 9 May 2018 at [4]. 4. There was a turbulent relationship between the accused and the deceased leading up to her death. Unlike the South Australian evidence, the evidence is not remote and has probative value. It is relevant to the facts in issue. It gives context to understand the alleged acts of the accused relied upon by the Crown against the background of the circumstances that existed at the relevant time. There is no evidence of physical violence from the accused to the deceased during their time at Albury. While the accused and the deceased still drank to excess and engaged in verbal disputes, no actual violence is reported. The circumstances had changed such that the deceased had twice been admitted to hospital for treatment in Albury in February and March 2018 for progressive liver failure related conditions. In that situation, the previous violent acts are cast into a different context and thereby become remote from the context in which the alleged offence took place. REPRESENTATIONS OF THE ACCUSED 1. In the triple-0 call at 7.30am on Monday 30 April 2018, the accused advised the operator that, "There is a lady there. She got, she is like unconscious and like blood coming out of the mouth ... or nose or something ...and then her grandmother died and she was knocking her head, like head butting the wall." 1. About 9am that morning, Gary Hobbs was at the Hotspurs soccer oval talking to the accused, whom he had just met, when the accused told him that: "Me wife's Aboriginal. One of the elders killed themselves. My wife couldn't deal with it so she's been taking it out on herself. She was head butting the wall last night. I woke up this morning and there was blood all over her pillow and she was gurgling blood. I called the ambulance this morning." Garry Hobbs' statement dated 30 April 2018 at [7] 1. At about 10.30am the same day, Bronwyn Bruce, a job service provider, telephoned the deceased's number and spoke to the accused, who she recognised. He told her that: "Her grandmother passed recently and she's one of the last elders. Ingrid was really upset and she head‑butted the wall and she hit herself over the head with a bottle." 1. At 11.30 that morning, the accused telephoned the Albury Hospital and told Krystal Waite, a nurse, that, "She's had an elder in her tribe die and she's been grieving…she's been bashing her head on the wall…she's got a bleeding problem…I woke up to her like that, gurgling in bed, and there was blood coming from her mouth.": Waite statement, 8 May 2018 at [9] - [10]. MEDICAL EVIDENCE 1. Dr Jane Vuletic provided a nine page report dated 20 September 2018. She gave evidence at the committal proceedings on 10 July 2019. An expert report of Dr Duflou dated 5 May 2020 was tendered on behalf of the accused. The direct cause of death is right subdural haemorrhage. There are other contributors to death, alcoholic liver disease (cirrhosis) and bronchopneumonia. 2. The following is a summary of the pathology set out in the report 1. bruising to neck, right and left upper arms and buttocks; 2. acute right subdural haematoma; 3. midbrain haemorrhage; 4. pulmonary congestion and oedema - bilateral bronchopneumonia; 5. cirrhosis. 1. Mr Wilson SC submits that: "The deceased was in such a bad medical situation that the subdural haemorrhage which caused her death could have been occasioned by a blow with only slight to mild force. This could have arisen from an assault such as a punch to the head, as well from self‑inflicted trauma such as the deceased hitting her head with an object such as a bottle or striking her head against the wall, or finally accidentally as a result of a fall." 1. In this case, the injury which resulted in the death of the deceased was an acute right subdural haemorrhage with evidence of brain herniation, whereas the mechanism of death (act causing the subdural haematoma) must be determined circumstantially, that is with regard to all the evidence and not merely the medical evidence. 2. I now set out the relevant parts of the evidence of Dr Vuletic at the committal hearing on 18 July 2019. BRUISES 1. There were bruises to the neck. There was one on the front of the neck on the left side, on the right shoulder, on the right upper arm, and two bruises on the right upper arm. "Q. And are they bruisings that could have been occasioned, for instance, by someone grabbing Ms Driver with their hands at different times? A. Yes. Q. Around the upper shoulder and the arm area and gripping them. A. Yes. Q. And someone in Ms Driver's condition would bruise much more easily with the cirrhosis of her liver than someone without that condition. Is that right? A. Yes. Q. So it may mean that an application of a small force, someone just taking hold of someone, could lead to a bruise in someone with her condition at the time. A. Yeah." Transcript p 7 - 8. THE HAEMATOMA "Q. Basically, in your internal examination, you found that there was - putting aside the subdural haemorrhage, there was, on the surface of the head - well, underneath the skin, a triangular bruise. Is that right? A. Yes. Q. And that was the only indicator of some trauma to the top of the head that you saw, correct? A. Yes. Q. And there was no - when you examined the top of her head, externally without any internal investigation, there was no apparent signs of injury in that area of the head. A. Yes. Q. And the only time that you saw that there was injury was when you actually did your internal reflection of her skull. Is that right? A. Correct. Q. So it didn't appear on the surface of her skin that there was any bruising that you could see. A. Correct. Q. What you saw in relation to that injury on the head was a 4 x 2 centimetre triangular bruise in the midline. A. Yes. Q. And you've set that out at page 6, 'In the midline posterior to the frontal suture,' where might you indicate that - that position of that triangular bruise was, Doctor. Are you able to show it on your own head or explain it? A. I have no photograph with me, but I think it was at the top of the head. Q. You are pointing right on the top of the head in the midline. Is that right? A. Yes. Q. And there was no evidence of external trauma when you first saw the top of her head and the skin there, correct? A. Yes. Q. So it was trauma you noted underneath the skin. A. Correct. Q. Would that indicate that if there was a trauma or a blow or some form of trauma occasioned that area of the head, that it must have been quite a mild one? A. Not necessarily. The hair on the head may have protected the skin from damage. Q. So even including that factor of the hair being a cushion to some extent, the blow couldn't be described as a blow, for instance, with an implement that might leave a mark. A. I couldn't exclude an implement being used but there's - I really can't say. Q. So, for instance, if there was a bang on the head with a glass bottle or with some force, that could cause a mark underneath the skin but not on top of the skin. A. Yes, that's right." Transcript pp 8 to 9. BRUISING TO THE JAW 1. There was an injury to the interior surface of the mandible jaw on the left side - transcript p 9. BRUISING TO NECK "Q. That particular injury which you described at page 6 under the heading, 'Neck', you said it was a diffuse area of fresh haemorrhage and it measured 13 centimetres by 5. Is that right? A. Yes. Q. That's a fairly extensive area of bruising. Is that right? A. Yes. Q. It could have been occasioned by someone perhaps grabbing that area with their hand. A. Perhaps. Q. Or someone by a slap, for instance. A. Yes, or a blow… Q. So despite that injury to the neck, there was no evidence that there had been an attempt to strangle Ms Driver, for instance. A. Correct. Q. The injury to the neck, that bruise, in your opinion, did that have anything to do with the subdural haemorrhage that you saw? A. I think it may have been. If it reflected a blow to the side of the neck or to the jaw that certainly could have caused the subdural haemorrhage. Q. We'll come to that, but that's because of the shearing effect of the movement of the brain as a result of the blow to the head. Is that right? A. Yes. Q. Now, you - and also the blow or the trauma to the top of the head could also have resulted in the subdural haemorrhage itself. A. Yes." Transcript pp 9 to 10. 1. Dr Vuletic went on to say, at transcript 11: "Q. You agree, don't you, that someone in Ms Driver's condition was very susceptible to bruising from some minor application of force. Would that be right? A. Yes." 1. At transcript 12, she gave the evidence: "Q. And you say, at point 3, there you set out the common cause of acute subdural haematoma as an impact trauma to the head, correct? A. Yes. Q. You say it may arise from a fall or a blow to the head. A. Yes. Q. So if someone fell down, perhaps if they had an attack of vertigo or something like that, an injury could be caused that could give rise to a subdural haematoma. A. Yes." 1. At transcript 13, the doctor said: "Q. Point 4 of your report notes that alcoholics and the elderly are at risk of developing acute subdural haematomas with a relatively minor degree of trauma. A. Yes. Q. And that's an important aspect of this case, is it not, because of the cirrhosis of the liver of Ms Driver? A. Yes. Q. It made her susceptible to having a bleed that would not be able to stop. Is that right? A. Yes. Q. Because the problems with the coagulopathy, or the proneness to continue bleeding once bleeding starts. Is that right? A. Yes. Q. Is that because those clotting factors that the liver helps to manufacture and stabilise are now not present in the same circumstances it would be in a normal, healthy liver? A. Correct. Q. Once a bleed starts, you note that it may be impossible to stop. Is that right? A. Yes. At transcript, page 15 through to 16, it was the doctor's evidence: Q. So someone in Ms Driver's position, with an extensive history of alcoholism and cirrhosis of the liver, a slight to mild force might be all that's required to give rise to a shearing of the vein, and the causing of such a bleed? A. Yes. Q. It doesn't have to be significant force at all, does it? A. No. Q. And it could be that a pushing him someone over, for instance, could give rise to it. A. If someone was pushed to the ground? Q. Yes. A. Yes, that could do. Q. Or even if someone was shaken by the shoulders or arms, that could give rise to it. A. I believe so ….. Q. In the witness statements, and part of what he said to the deceased's job service provider, he made a call to her phone that morning and he answered it, was that, as follows. 'She was bleeding from the mouth and maybe her nose, but mostly her mouth, and could have a brain haemorrhage or something.' And then the lady on the call asked what had happened, and he said something like, 'Her grandmother passed away recently, and she's one of the last elders. Ingrid was really upset, and she head butted the wall, and she hit herself in the head with a water bottle.' Now, could those activities, as described there, have given rise to sufficient trauma to have caused the subdural to haemorrhage? A. Yes. Q. And a second description was to the registered nurse at Albury Hospital who was on duty. He rang at 11.30am that morning and spoke to the staff member and recorded his words. And these words were, 'Can I tell you, this morning I woke up to her gurgling in bed. There was blood coming from her mouth.' He said, 'Can you tell - can I tell you what's been going on? She had - an elder in her tribe died. She's been grieving. I don't know if you know anything about how we grieve, but it can be aggressive. She's been bashing her head on a wall. I've been telling her to stop. She won't listen. She's been wanting to stab herself. She hasn't. She's got a bleeding problem.' So there would be more of the same with what's already been said to the other witness and indicative of the same thing. Do you agree with that? A. Yes. Q. And the situation where she's got a bleeding problem, you accept that she does because of the coagulopathy problem with her cirrhosis. A. Yes. At p 18 of the transcript, the doctor was asked this: Q. And in her case, the type of bleed, subdural haemorrhage, you saw could have resulted from some form of minor trauma in the evening before, which resulted in a bleed overnight to the point where she had observable signs, such as blood in the nostrils and mouth and gurgling, struggling for breath in the morning. Would that be right? A. Yes. 1. Dr Duflou, a specialist forensic pathologist, provided a report dated 5 May 2020. In summary, it informs me of the following: "The deceased had a complex medical history with multiple hospital admissions over the preceding years. Specifically, there were multiple hospital admissions for advanced liver disease due to excessive alcohol consumption and possibly hepatitis virus infection, with complications in the form of psoriasis, cirrhosis (Child‑Pugh, C), a bleeding tendency (or coagulopathy), upper gastrointestinal bleeding, ascites, heavy menstrual bleeding, and periods of pronounced anaemia. The deceased had multiple interactions with health providers in the months leading up to her death, which included investigations of upper gastrointestinal haemorrhage, gastritis, anaemia and progressive liver disease (severe alcoholic hepatitis and cirrhosis), and treatment of urinary tract infection. The deceased had reportedly also complained of dizziness and repeated falls, including at least one fall in late March 2018. The patient provided various estimates in relation to daily alcohol intake, but in general, this was in excess of one bottle of alcohol per day, and at times appeared to be in the region of three to five litres of wine, or other forms of alcohol in a day." 1. Dr Duflou agreed with the cause of death as formulated by Dr Vuletic. Dr Duflou considered a number of scenarios and reported as follows, at [21]: "The deceased striking her head with a bottle, or head butting a wall as part of the grieving process because of the death of a grandmother: In my opinion, such acts could readily cause the development of subdural haemorrhage in the setting of liver disease and coagulopathy. If the scalp bruise is the result of an impact with a bottle, the bottle is unlikely to have been broken as a result of the impact, given the lack of sharp force injury to the skull. I note that blood was identified on a wall near the bathroom - in my opinion, it is very unlikely this blood is a direct consequence of the impact of the head against the wall, given absence of breakage the continuity of the scalp, ie. there is no laceration of the scalp. Bruising to the front of the neck which may have been the result of being grabbed in that area, or slap or blow: In my opinion, such actions could have resulted in the bruising to the neck, and could also have caused development of a subdural haematoma. Bruises on the arms and the shoulder could be the result of the deceased being gripped with hands and been shaken: I agree such a mechanism could explain the bruising on the arms, and in a person with a bleeding tendency and other predisposing factors for subdural haemorrhage could reasonably be the cause of the subdural haematoma. A fall, such as a result of vertigo: A fall could result in bruising on the upper limbs if the fall is sideways, as is often seen in alcoholics, or if it results in the deceased falling on her buttocks. Both such types of falls would also be able to cause the subdural haematoma in a person predisposed to bleeding." 1. Dr Duflou was in agreement with the autopsy pathologist that the injuries which resulted in death could have been sustained the night before the admission to hospital. 2. Dr Duflou concluded at [25] of his report: "The deceased died of an acute subdural haematoma with development of brain herniation and broncho‑pneumonia. This haematoma was a consequence of force applied directly or indirectly to the head, and may have been the result of one or more impacts, falling, or being shaken. Likely, the haematoma commenced not earlier than 24 hours or so prior to admission to hospital. There was a propensity to development of subdural haematoma in this case as a result of the combination of the direct effects of excessive alcohol consumption, cerebral atrophy with an increased subdural space, and the presence of advanced liver disease with coagulopathy. Coagulopathy has the effect of both increasing the likelihood of bleeding from an injury and for that injury to continue bleeding once sustained. The severity of liver disease, as assessed both clinically prior to death, and at post-mortem, was such that there was a high likelihood the deceased would have died of liver disease in subsequent months had she not died of the subdural haematoma." OTHER EVIDENCE 1. A review of hospital records indicates the following; 1. 23 March 2014, admission to ED by ambulance, felt lightheaded and dizzy while sitting on a toilet, fell in toilet and hit head. 2. 6 June 2015, admission to ED, patient walked into her sister's room complaining of dizziness and then collapsed and was unresponsive. 3. 24 March 2017, admitted to ED, states she had a fall and then had a seizure. 4. 4 July 2017, admitted to ED, felt dizzy and faint. 5. 12 July 2017, admitted to ED, vaginal bleeding for two months, dizzy, has had half a cask of wine today. 6. 20 September 2017, admitted to ED, found by family, drowsy, collapsed. 7. 21 February 2018, presented to emergency, getting headaches and dizzy when standing. 8. 23 March 2018, admitted from ED with a history of being generally unwell with dizziness and falls. 1. MADEC records reveal the following; 1. 23 April 2018, the deceased was unable to make an appointment due to falling and hitting her head. 2. 24 April 2018, the accused informs Noelene Regulski that the deceased has had a fall and hit her head. 1. It is clear that the deceased had a documented history of dizziness and falls occurring up until the time of her death. Alice Springs Hospital records record on 2 October 2017 that the deceased presented with a syncopal episode (fainting or passing out). She was in Alice Springs for "Sorry Business". In April 2018, Fanny Walker, the deceased's great aunty died; statement of Kay Enalanga at [10]. 2. The accused told Nurse Waite at 11.30 on 30 April 2018, "Can I tell you, this morning I woke up to her gurgling in bed. There was blood coming from her mouth. Can I tell you what's been going on? She's had an elder in her tribe die and she's been grieving. I don't know if you know anything about how we grieve, but it can be aggressive. She's been bashing her head on the wall. I've been telling her to stop. She won't listen. She's been wanting to stab herself. She hasn't. She's got a bleeding problem." 1. Earlier at 10.37am, the accused spoke to Bronwyn Bruce from MADEC and informed her that the deceased had head butted the wall and hit herself in the head with a bottle in distress after her grandmother passed away. The accused told Garry Hobbs at 9 o'clock; "My wife's Aboriginal. One of the elders killed themselves. My wife couldn't deal with it, so she's been taking it out on herself. She was head butting the wall last night. I woke up this morning and there was blood all over her pillow and she was gurgling blood." 1. The accused told the triple‑0 operator at 7.37am, "There is a lady there. She got - she's like unconscious and like blood coming out of the mouth…or nose or something…and then her grandmother died, and she was knocking her head like head butting the wall." 1. There is an abundance of evidence that as a result of the death of Fanny Walker in the month of April, the deceased engaged in "Sorry Business". Sorry Business is an English expression mostly adopted from mainland Aboriginal people to refer to a period of cultural practices and protocols associated with death. CIRCUMSTANTIAL CASE 1. The cause of death is subdural haemorrhage. There is no identified, unlawful and dangerous act of the accused which caused the death. This is a circumstantial case as the act is to be inferred from all the circumstances. Of circumstantial evidence, the High Court in The Queen v Baden‑Clay (2016) 258 CLR 308 at [46] said: "The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled", (footnote omitted).In Barca v The Queen (footnote omitted), Gibbs, Stephen and Mason JJ said: When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King (footnote omitted). To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference, but it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen (footnote omitted); see also Thomas v The Queen (footnote omitted). 47. For an inference to be reasonable it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in the evidence', (footnote omitted). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (footnote omitted). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (footnote omitted)." 1. The importance of the principle that the evidence is not to be looked at in a piecemeal fashion is explained in practice and in appellate decisions. I am to consider all the circumstances established by the evidence and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. In this case, I am asked to reason in a staged approach. The Crown asked me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. I am then asked to infer or conclude from a combination of those established facts that further facts exist. 2. The ultimate fact the Crown asked me to find, based upon the basic facts, is that the accused is guilty of the offence charged. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused's guilt. Drawing a conclusion from one set of established facts to find another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition. CROWN SUBMISSIONS 1. The Crown filed written submissions dealing with the finding of a prima facie case. In those submissions, the Crown submitted that the medical evidence must be considered accumulatively with other evidence which forms the factual basis for the Crown circumstantial case. 2. The Crown relies upon the following proof of its circumstantial case: 1. medical evidence of blows or trauma to the neck/jaw area and the top of the head; 2. relationship evidence to support the fact that there was tension within the relationship between the accused and the deceased; 3. the fact that there was no one else present at the time but the accused and the deceased; 4. the fact that the accused left the scene after making the triple-0 call; 5. the fact that the witness Sam McDonald heard no noises consistent with banging on the wall; 6. the fact that the police found no evidence of damage to or blood or hair on any of the walls; 7. although there was no evidence of trauma to the accused's hands, it must be remembered that Dr Vuletic could not rule out the use of an implement. 1. The Crown submitted that in considering the whole of the evidence, that it is open to the jury to conclude that the accused inflicted a blow to the head or neck area of the deceased in circumstances in which a reasonable person would have appreciated exposed others to the risk of serious injury. 2. Mr Crown in oral submissions made a submission as a Minister of Justice. He submitted the following: "In terms of going now from the prima facie case submissions that I made in relation to the evidence of the banging of the head…even if one were to assume that there was a blow or slap, as Dr Vuletic describes by the accused, if one were to assume that there is no evidence of that, it's possible. There is then the difficulty of given the evidence in relation to Ms Driver's condition at the time…would the reasonable person have appreciated that blow or slap would expose Ms Driver to the risk of serious injury…this is the reasonable person test, how they would have viewed it and if the evidence was that there was a slap and not knowing that condition." 1. I took the learned Crown Prosecutor to be submitting that Mr Wilson SC had put to the pathologist that the brain bleed could have been caused by a slap to which she agreed. As the accused did not give evidence in the trial it is possible that a slap caused the bleed and a reasonable person (who was unaware of her ill health) would not have appreciated that the slap exposed her to a risk of serious injury. Accused Submissions 1. In written submissions, Mr Wilson SC submitted the Crown case at its highest, taking the injuries into account and excluding possible self-inflicted or accidental causes, is that there is no physical evidence of any blow or trauma inflicted by the accused that could be characterised as "dangerous". The actual injuries observed were of bruising with no external physical head injury. That any blow causing death was of that character is based on conjecture and not on the available evidence. The Crown does not have to identify a particular act on the part of the accused bringing about the injury which caused the death of the deceased: R v PL 261 ALR 365; [2009] NSWCCA 256. The fact of death might speak sufficiently as proof that such an act must have been committed. Here the injuries observed do not support such an act. 2. Mr Wilson SC further submits the explanations of the accused are embedded within the Crown case. They represent a consistent account from the accused on that day contained within the evidence of a number of witnesses. It is the only account of the relevant events contained within the Crown case. It is a hypothesis which cannot be excluded and raises the possibility that the deceased herself, even with a relatively slight force, may on the medical evidence have triggered the fatal bleed. Even if the accused as the Crown alleges, did some act which may have contributed to the bleeding episode, the Crown cannot categorise this speculated act as unlawful and dangerous. The Crown cannot connect such act to the cause of death. 3. It is submitted that on the question of whether the Crown has proved its case beyond reasonable doubt, the Crown cannot exclude the explanations of the accused as a rational hypothesis consistent with innocence. He submits that the deceased was so ill with end stage liver failure and other complications that she had, a documented history of dizziness and falls occasioning up until the time of her death. 4. The prosecution case establishes evidence that the deceased was upset by the recent death of a close relative and that she had engaged in "sorry business". The accused has disclosed that the deceased in her grief had struck herself with a bottle on the head and hit her head against the wall in anguish. A minor trauma, whether it be a conjectured possible assault, which was not dangerous or on the other hand, hitting her head with a bottle, hitting her head against the wall, falling down and hitting her head could have caused an irreversible bleed in her head such that was seen to be the cause of death. 5. He further submitted that on the charge of manslaughter the Crown must prove that the accused committed an unlawful and dangerous act which caused the death. The Crown case cannot explain exactly what took place at the crucial time. The Crown does not isolate any act or actions of the accused which caused the death of the deceased. There was no admission from the accused of any unlawful act but rather an explanation to others of the self-infliction of injury by the deceased and the suffering by her of falls, both rational explanations which cannot be excluded. CONCLUSION 1. The accused gave a consistent account to the triple-0 operator Gary Hobbs, Bronwyn Bruce and Krystal Waite that as a result of a death in the family, his wife had been engaging in "sorry business" which included "head butting on a wall, hitting herself over the head with a bottle." Her great aunt, Fanny Walker died in April 2018. 2. The conduct of the deceased cannot be excluded as the mechanism causing the brain bleed leading to death with her pre-existing health issues (coagulopathy). 3. There is a documented past history of the deceased suffering from dizziness and falls. She was an alcoholic. Dr Vuletic could not exclude an innocuous fall causing the subdural haematoma. 4. The Crown relies upon relationship evidence in proof of its circumstantial case, more particularly, threats made of violence in January through April 2018. There was evidence of actual violence in their relationship in South Australia. There was no evidence of actual violence in Albury. I must look at all of the evidence and not engage in speculation. Evidence of threats made is only one part of the evidence for my consideration. It is telling, in my view, that the violence in the relationship seems to be left behind in South Australia. There was no evidence of actual violence in Albury after they commenced residence in November 2017 and onwards. 5. The Crown case relies upon medical evidence of blows or trauma to the neck/jaw and the top of the head. BRUISES TO THE NECK 1. The bruises could have been occasioned by grabbing Ms Driver at different times and in her condition (cirrhosis of the liver) she would bruise more easily. Dr Vuletic could not exclude that the bruising to the neck and arms occurred as a result of the application of small force, such as taking hold of someone. Taking hold of someone would not be an unlawful and dangerous act. There was no medical evidence that there had been an attempt to strangle the deceased. Dr Vuletic conceded that someone in Ms Driver's condition was very susceptible to bruising with some minor application of force. If she was shaken by the shoulders or arms, it could give rise to the subdural haemorrhage. This would not be an unlawful and dangerous act. HAEMATOMA UNDER THE SKIN TO THE TOP OF THE HEAD 1. It was Dr Vuletic's evidence that if there was a bang on the head from a bottle, that could cause a mark underneath the skin, but not on top of the skin. The accused gave an account of the deceased hitting herself with a bottle. Dr Vuletic conceded that the subdural haemorrhage could have resulted from some form of minor trauma in the evening before resulting in a bleed overnight to the point where she had observed observable signs such as blood in the nostrils and mouth gurgling and struggling for breath in the morning. That evidence is consistent with the observations of the accused. 2. Such a finding accords with the fair submission made by Mr Crown that if there was a blow or slap, a reasonable person would not have appreciated that the blow or slap would expose Ms Driver to the risk of serious injury due to cirrhosis and coagulopathy. 3. The Crown relies upon the accused leaving the apartment and making a triple‑0 call from a public telephone as a form of consciousness of guilt. Mr Wilson SC points to the evidence of Senior Constable Sutherland, paras [11] and [12] of his statement, that there were warrants from South Australia for the arrest of the accused. The accused's statement that, "They will blame me for this," is consistent with a view that he was going to be falsely accused of her death, and the leaving of the scene can be put down to outstanding warrants. I am not satisfied that the accused's conduct amounts to a consciousness of guilt on his part. 4. I am satisfied that the physical health of the deceased had been in a greatly compromised situation for a long time. She was an alcoholic with end stage liver failure and only a slight to moderate trauma was needed to cause the tearing of the bones in the skull and the creation of the subdural haemorrhage which caused death. There is an inference consistent with innocence reasonably open on the evidence. The Crown has not excluded a reasonable hypothesis consistent with innocence. Accordingly, the Crown has not made out a circumstantial case, and I find the accused not guilty and an acquittal will be entered in the record. DIRECTIONS 1. In coming to the conclusion that I have, I have directed myself on: 1. onus and standard of proof; 2. drawing of inferences; 3. circumstantial evidence; 4. the accused not giving evidence; and 5. expert evidence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2021