Supreme Court New South Wales Medium Neutral Citation: R v Cyril Weazel [2014] NSWSC 1664 Hearing dates: 22, 23 and 24 September; 9, 10, 13 and 15 October 2014 Decision date: 25 November 2014 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: The accused is not guilty of both counts on the indictment. Catchwords: CRIMINAL LAW - special hearing - counts of murder and causing grievous bodily harm with intent - inadequate evidence to establish causation or intent Legislation Cited: Mental Health (Forensic Procedures) Act 1990 Category: Principal judgment Parties: Regina (Crown) Cyril Weazel (Accused) Representation: Counsel: P McGrath SC (Crown) M Austin (Accused) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2011/242994 Publication restriction: Nil Judgment Introduction 1In the early hours of the morning of 27 July 2011 the deceased, Nancy Dynevor, was taken by ambulance from a boarding house in Redfern to the Royal Prince Alfred Hospital at Camperdown NSW. There, despite various attempts to resuscitate her, she was pronounced dead at 11.55 am. A post mortem examination revealed that she had suffered multiple blunt force injuries, which were the principal contributing causes of her death. Later that day the accused, Cyril Weazel, who was the partner of the deceased, and who had been with her throughout the time before she was hospitalised, was arrested and charged with her murder. 2Some time later a question arose as to the accused's fitness to be tried, and an enquiry as to this matter was conducted pursuant to the Mental Health (Forensic Procedures) Act 1990 ("the Act"). On 17 September 2013 Adams J of this Court found the accused unfit to be tried and ordered that he be detained. Pursuant to s 14 of the Act his Honour referred the matter to the Mental Health Review Tribunal ("the tribunal"). On 16 December 2013 the tribunal determined, pursuant to s 16 of the Act, that it was unlikely that the accused would become fit to be tried within 12 months after the finding of unfitness. The Director of Public Prosecutions ("DPP") was notified of this determination. On 18 January 2014 the DPP advised the Court, pursuant to s 19 of the Act, that he intended to proceed with the charge of murder, and an alternative charge of causing grievous bodily harm with intent to do so. A special hearing was therefore required to be conducted pursuant to s 19 of the Act. 3The special hearing commenced before me on 22 September 2014. No prior election had been made by either party to have the hearing determined by a jury. Accordingly, pursuant to s 21A of the Act, the hearing proceeded before myself alone. The accused was arraigned on two charges: first, that on 27 July 2011 he murdered Nancy Dynevor; alternatively, that between 15 and 28 July 2011 he caused grievous bodily harm to Nancy Dynevor with intent to cause grievous bodily harm. In accordance with s 21(3) of the Act the accused was taken to have pleaded not guilty to both charges. As required by the Act, the accused was represented by a legal practitioner, namely Mr Mark Austin of counsel. 4I think it appropriate at this stage to briefly indicate the principal legal issues which arose at the hearing, so that my description of the events which preceded the death of the deceased can be seen in context. In relation to the murder charge, the first issue was that of causation, namely whether the Crown has proved, beyond reasonable doubt, that it was an act or acts of the accused which substantially contributed to the death of the deceased. If the Crown cannot establish that matter, then obviously the accused must be found not guilty of murder. If the Crown succeeds on that issue, then a further significant issue arises relating to the accused's intention at the time of inflicting the fatal injuries. The Crown does not suggest that he intended to kill the deceased, but rather that he intended to really seriously injure her. A finding adverse to the Crown on that issue would almost certainly lead to an acquittal. Finally in relation to the first charge, if the Crown were to succeed on both those issues, so that the verdict would otherwise be guilty of murder, the partial defence of substantial impairment was raised, which would reduce the appropriate verdict to one of manslaughter. And if the Crown cannot succeed in relation to the first charge, the second charge requires consideration, namely that the accused caused grievous bodily harm to the deceased with intent to do so. 5I should also say at the outset that the mental condition of the accused which led to the finding that he was unfit to be tried was not such as could give rise to a defence of mental illness. The evidence which was before Adams J, some of which was also tendered before me, indicated that he had significant cognitive impairment, almost certainly caused by alcohol related brain damage and associated frontal lobe impairment. In this regard, he gave the medical experts a history of having commenced drinking alcohol at the age of 13 or 14, and consuming large quantities of alcohol ever since. He is now 46 years old. Factual background 6Both the accused and the deceased are of aboriginal descent, and come from north Queensland. Their families knew each other well. As at July 2011 the two of them had been in a relationship for something under three years. The deceased at that time was 32 years old. They moved to Sydney in late February 2011, and initially stayed with relatives of the accused. About a week before 26 July they moved into a public housing building, Tivoli House, in Cleveland Street Redfern, where they were in room 75. 7The events leading up to the death of the deceased commenced on the morning of 26 July 2011. That morning the two of them went by train to Mount Druitt, where the accused had an appointment at Centrelink at about 9.45 am. Numerous witnesses - some 28 in all - gave evidence of their observations of the two of them between about 9.00 am at Mt. Druitt and when they returned to Tivoli House at about 7.30 that evening. I will try to encapsulate that evidence as briefly as possible, but some of it is of real significance in this case, given the central issue of causation. 8The accused's appointment at Centrelink was apparently a brief one, and by 10.00 am the two of them had left and walked towards Dawson Mall, near the Westfield shopping centre. There they met up again with two aboriginal men whom they had known from Queensland, and whom they had encountered by chance earlier that morning when they first arrived at Mt. Druitt. They spent much of the rest of the day in the company of these two men, drinking very considerable quantities of tawny port. The statements of the two men, Emmanuel West and Mervyn Dunrobyn, were read onto the record, as neither was available to give evidence. Indeed Mr West had died in the meantime. 9It appears that these two men went to this area on a daily basis, where they would regularly "bite" for money to buy alcohol. ("Biting" is the word they used for requesting money from members of the public). They had become very familiar figures in the area, and were known, at least by sight, to virtually all the witnesses who worked in the vicinity of the Dawson Mall. 10On all accounts, at the beginning of the day both the accused and the deceased were happy and positive. This was confirmed by another aboriginal friend, Duker Lane, who was talking to them for a short time at about 10 o'clock that morning. At that time they were both sober, and were talking enthusiastically about the "new beginning" they were proposing to make in Sydney. 11The statement of Mr. West contains little additional information. He said that he was already drunk by the time he met up with the accused and the deceased that morning. The four of them went and sat in the park where they stayed for some time, drinking and talking. Later in the day, after they had moved to a different location, he saw the accused and the deceased arguing. He thought that the accused was going to strike the deceased, so he pushed him up against a wall in order to stop him. 12Mr. Dunrobyn also said in his statement that after they had left the park the accused and the deceased were arguing. At one stage he left to go to the toilet, and when he returned he saw a mark on the side of the deceased's face "as if her skin had been opened." At the end of the day he said that the deceased was very drunk. She was slouched over and spitting onto the ground; she could not walk and she was slurring her words. It required the two of them, himself and the accused, to assist her to the escalator in order to get to the station. 13The observations of the remaining witnesses generally relate to events which happened well into the afternoon, by which time it must be assumed that a considerable amount of port had been consumed by all four of them. Tina Angely, who worked at Liquorland at Mt. Druitt, described the deceased as coming into her shop at 2.08 pm and buying two 750 ml bottles of tawny port. She returned at 2.40 pm and bought a third bottle. Ms. Angely described her as "chatty", but she did not seem to be intoxicated, and there were no marks on her face. 14It is apparent that conflict escalated amongst the group during the course of the afternoon. Aycan Yilmaz, who owned a bakery near the Dawson Mall, said that at about 3.00 pm he saw one of the "familiar" aborigines (either Mr. West or Mr. Dunrobyn) yelling at the accused and pointing towards the deceased. The other familiar aborigine intervened to stop them. Kirsty Stanford, the manager of a shoe warehouse in the area said that at about 3.30 pm she heard shouting and swearing outside her shop, and she saw the four of them. The deceased was stumbling and falling over and seemed to be "really drunk". The accused was yelling at her, abusing her and calling her a slut. Ms. Stanford called the security guard. She saw the two of them later as they were going towards the train station, and she said that the accused was pushing and shoving the deceased. They were both yelling at each other. 15The security guard called by Ms. Stanford was Sekone Ioane. He said that he went to the area shortly after 4.00 pm in the company of another security guard, John Palmer. He saw a group of four aborigines. He saw what he thought was two people fall to the ground. When he looked more closely, he saw the deceased on the ground holding a bottle and a man who, from his description, was almost certainly the accused bending over her and holding her around the shoulders. He was yelling at her. He, Mr. Ioane, called out to them, and they all walked off towards the station. On the way, it appeared that two of them - the accused and one of the other men - were preparing to fight, but then they hugged each other. 16The other guard, Mr. Palmer, said that he and Mr. Ioane went there at about 4.30 pm. He described seeing four aborigines who had bottles of alcohol in their hands outside the shoe warehouse. He recognised all four of them, as they used to come to that area on a weekly basis. Mr. Palmer's description of the four people makes it clear that they must have been the accused, the deceased, Mr. West and Mr. Dunrobyn. He asked them to move away, as they were in an alcohol-free zone. The deceased was intoxicated and was talking "gibberish", he said. The accused had an angry, aggressive demeanour. A little later Mr. Palmer heard a female scream, and he saw the "third male" (who must have been the accused) throw the deceased to the ground. He did this, Mr. Palmer said, by grabbing her by the front of her jumper and forcefully throwing her to the concrete ground. She landed on her backside area, and curled up into a foetal position. It looked as if the man might be going to hit her or kick her, so Mr. Ioane called out to him, and he stopped. The woman then got up and sat down on a park bench with her head in her lap. As the men came towards her, she got up and walked off towards the train station. The other three men started arguing with each other. Mr. Ioane called out to them to "settle down" and they appeared to do just that. 17There are problems with some aspects of this evidence. It is clear that Mr. Ioane and Mr. Palmer were together throughout all this time, yet they gave quite divergent accounts of their observations. Mr. Palmer's account is considerably more detailed, which in many cases would tend to support its accuracy. But some difficulties remain. For instance, he described the deceased as getting up and walking towards the train station, leaving the other three behind. But on all other accounts, the deceased was accompanied by at least one of the others throughout the time she went to the station. Indeed by that time she was having great difficulty in walking on her own. On the other hand, Mr. Palmer's description of the accused as having pushed the deceased onto the ground is to some extent supported by the CCTV footage of the Dawson Mall area, although the images are a little distant and indistinct. 18The Crown also relied upon the evidence of Glenda Carter, who was working at the Dawson Mall as a receptionist with an X-ray group. At about 4.15 that afternoon she went outside for a cigarette break. There she saw three aborigines, two men and a woman. One of the men was a regular at Mt. Druitt. She had not seen the others before. The unfamiliar man was yelling at the woman who was sitting on the ground with her back to the wall. She got to her feet, with difficulty, and was staggering a bit. The same man then punched her in the left cheek with his clenched right fist. She reeled back, and he grabbed the hair from the back of her head and pulled her head back. The familiar man then put an arm around the woman and comforted her. The other man then seemed to calm down, and the three of them walked off in the direction of the station. 19The Crown relied upon Ms. Carter's evidence, as it was one of the few occasions on which a witness observed the accused actually striking the deceased. On the other hand, Mr. Austin questioned whether this group was indeed the group which included the accused and the deceased. Ms. Carter described the man who struck the woman as having shoulder-length black hair and a beard. He was not wearing a hat, she said. In fact the accused was clean shaven at the time, and the CCTV images show that throughout that day he was wearing a distinctive beanie. 20I think it very likely, in all the circumstances, that it was the accused and the deceased who were observed by Ms. Carter. There is no doubt that they were in that area at the time, and that there was some conflict between them. Also, Ms. Carter's description of the woman matched that of the deceased. It is not uncommon for bystanders to be mistaken in their description of people whom they observe only briefly; and also in their description of events which happen quickly and unexpectedly, as this obviously did. I will take all of this into account when determining what weight to attach to this evidence. 21A rather different picture was painted by the witness Fan Zhang, the proprietor of a coffee shop at Westfield. At about 4.30 pm he had taken a smoking break in the carpark of the Mt. Druitt station. On the way back to his shop he saw an aboriginal woman and three men. Two of the men were very familiar to him as being regulars in the area. When he was back in his shop he looked outside and saw one of the older (familiar) men putting his two hands around the woman's neck. Then the younger, unfamiliar man put his arm round her shoulders as if he was trying to comfort her. 22Julia Turczak, who worked in the Dawson Mall, saw one of the two aboriginal men whom she regularly saw in the area, this time in the company of a younger, unfamiliar aboriginal man. The unfamiliar man was very aggressive: pushing and shoving the familiar man, and screaming and swearing. The familiar man was trying to settle him down. An aboriginal woman was sitting down next to them, leaning forward with her hair covering her face. The security guards, she said, were watching them. 23Aycan Yilmaz, who had seen the four of them earlier in the afternoon, saw them again a little before 5.00 pm. At that time the woman was lying on the pavement. An argument developed between one of the older, familiar men and the younger man. The younger man (who must have been the accused) then walked off towards the station together with the woman. She was unable to stand, and kept falling down. The accused tried to help her by putting his arm around her waist and supporting her, but whenever he loosened his grip she fell down again. 24At this point the scene shifted to Mt. Druitt railway station, where a number of witnesses observed the accused and the deceased. Mr. West and Mr. Dunrobyn had remained at the shopping centre and were no longer with them. 25The first observer in point of time was Anthony Collins, a cleaner employed by Railcorp NSW. He saw the two of them on a ramp which leads to the station from the shopping centre. The deceased was on the ground when he first saw them, and seemed unable to stand on her own. The accused was trying to pull her up, but was having great difficulty in doing so. A bystander who had been riding a push bike came and helped the accused drag the deceased onto the concourse and to the booking office, followed by Mr. Collins. At this stage they encountered Andrew Bent, who was duty manager at the Mt. Druitt station. The cyclist left, as he was concerned that someone might take his bicycle. Mr. Bent described the deceased as "not just intoxicated but very intoxicated". She was on the ground, slumped over, and unable to walk unaided. He told the accused that she could not get onto a train in that state. The accused argued with him, asking to see the policy in writing, and saying that they had to get to Redfern. Eventually, with the assistance of Mr. Sean Simpson, who also gave evidence, the accused managed to get the deceased down the stairs to the platform. Towards the bottom, they needed even more assistance from Mr. Collins, who took hold of the deceased's legs. She was placed onto a bench, where she immediately flopped forward. After a train arrived at the station, Mr. Collins assisted them into carriage number four, where the deceased was placed onto one of the long seats in the vestibule area of the carriage. At this stage Mr. Bent rang the city security office in order to alert them to the situation. 26Tracy Iping was initially the assistant guard and later the principal guard on this train, sitting in the guard's cabin in the fifth carriage. When the train arrived at Granville station (at 6.24 pm), a female passenger came and told her that there was a disturbance in the fourth carriage, with verbal abuse between a man and a woman. Later, when the train stopped at Lidcombe, another woman told her of a disturbance in the fourth carriage. As well as verbal abuse, the woman said, the man was starting to hit the woman. Finally, at Strathfield station, a man came and told her that the man in the fourth carriage was physically hitting the woman. Ms. Iping arranged for the train to delay its departure. She and other station staff went to the fourth carriage where they saw the accused and the deceased in the vestibule area. She was lying on his lap across the seats and seemed to be passed out. One of the station staff told them that they had to get off the train. The accused said to the deceased: "Come on, love, we got to get up and get off the train." Eventually the deceased managed to get up, but as she was walking towards the door she collapsed onto the ground. The accused pulled his right foot back, and then appeared to kick her, although Ms. Iping said in her initial statement that she could not tell whether he was kicking her or using his foot to try and lift her up. Eventually the accused did manage to get her up and they left the train. On the way, Ms. Iping observed scratch marks which appeared to be recent on the deceased's left cheek. The two of them went and sat on a bench on the platform. The train then left the station and continued on its journey. 27One of the station staff who accompanied Ms. Iping into the carriage was Mark Hall, who also gave evidence. He said that both the accused and the deceased were intoxicated. He observed bruising on the deceased's face, under her right eye. He said that the deceased fell onto the floor of the carriage on their way out. The accused grabbed her by the arm in order to help her up and get her outside. Mr. Hall apparently did not see the accused move his leg as if to kick the deceased while she was on the ground, or presumably he would have mentioned it. 28Once the accused and the deceased were out of the train and sitting on the platform, the station staff apparently departed and left them alone. They were therefore in a position to board the next train to Central station via Redfern, which they did. As they were moving forwards on the platform and the train was approaching, the CCTV cameras record the deceased falling forward. At the time she was perilously close to the edge of the platform. She was pulled back by the accused, who thereby saved her from what could well have been a catastrophic fall. 29The next known observations of the two of them were at Redfern station. Three transit officers gave evidence of seeing them there at about 7.00 pm. One of them, Craig Gerstenberg, described the accused as pulling the deceased up the stairs from the platform by her sleeve. When asked if they were okay, the accused said: "Yeah, I'm just trying to get her home." The deceased had grazing and bruising on the left side of her face, Mr. Gerstenberg said. He asked her if she wanted an ambulance, and she said, in a slurred voice: "no, no, I'm just really drunk." The other two officers gave similar evidence, although they were less specific about the position of the deceased's facial injuries. Interestingly, two of the three officers described the accused as having a beard, but we know with certainty that he did not have one at that time. 30The accused and the deceased then proceeded to walk from Redfern station to Tivoli House in Cleveland Street. Robert Rule was probably the first of the witnesses to see them during this journey. In a statement tendered into evidence he said that very shortly after 7.00 pm he was leaving the Redfern Police Station in Lawson Street with his bull terrier ridgeback dog when an aboriginal woman - clearly the deceased - said, in a slurred voice: "oh what a beautiful dog." He said that she was very drunk, and was "staggering all over the place". She was being held up by an aboriginal man. When this man let her go, Mr. Rule said, she kept bumping into shop window fronts. He heard the male shout at her: "come on, come on", but did not see him strike her. 31Andrew Walker, who worked at 80 George Street Redfern, went outside to have a cigarette at about 7.15 that evening. At the intersection of George and Wells Street he saw an aboriginal woman lying on the ground on her side, with a man standing over her and yelling at her. From his description, they must have been the accused and the deceased. He described the accused as waving his arms and saying: "get up or I'll fucking kill you." She was yelling back, saying that she couldn't get up. She appeared very intoxicated. At that stage, Mr. Walker said, another man appeared across the road who was on the phone. He heard the accused shout that the man was calling the police, and he - the accused -then ran around the corner into Wells Street. Before he did so, he kicked the deceased two or three times with the toe of his boot, and also stomped on her hips a couple of times with the bottom of his boot. Only moments later he returned and managed to pull the deceased to her feet. They then walked across the intersection. The deceased fell on at least two further occasions that Mr. Walker observed. He had a clear vision of the first fall, and said that she "fell hard with her whole body landing flat", falling onto her side and slightly to the front. The two of them then moved out of his view. In cross-examination Mr. Walker was asked whether, when the accused stomped and kicked the deceased, he appeared to be trying to get her up. He answered that the accused seemed to be trying "to get a reaction, to get her to move." 32The man whom Mr. Walker observed on the phone was clearly Stein Lotveit, whose statement was read onto the record. Mr. Lotveit was riding his scooter along Wells Street. When he came to the corner of George Street he saw the deceased slumped on the footpath with her legs outstretched. The accused had her wrists in his hands, and was shouting for her to get up off the ground. He was pulling at her arms as if he was trying to pull her up. He appeared very aggressive. The female was very apologetic, saying: "I'm sorry babe." Mr. Lotveit called out to the accused that he was phoning the police. He turned his back while he made the call. At about that time the accused walked away from the deceased, but then came back again and grabbed her by the wrists, trying to get her up. He did this a couple of times, and each time he let her go she would slump down to the ground. Eventually he got her to her feet, but after walking only a few metres she fell down again. Once again he got her to her feet and they began walking north down George Street. The accused was supporting her. Mr. Lotveit said that she would not have been able to walk without him. 33The accused and the deceased were also observed by Casey Castro and her husband Reinaldo in George Street Redfern. Mrs. Castro heard a man's voice shouting "get up" and "come on" and some profanities such as "fuck you". She then saw the deceased on the ground. The accused had her by the hair and was pulling her up and yelling at her, saying things like: "get up or I'll kill you." He pulled her up from the ground, and she then pushed at him and stumbled backwards. The two of them started to walk down George Street towards Cleveland Street. Mrs. Castro described them as walking side by side as if they were "buddies". They were swaying and stumbling and appeared to be affected by drugs or alcohol. 34Mr. Castro's observations generally supported those of his wife, although he described these events in less detail than she did. 35No further observations were made of the accused or the deceased until after their arrival at Tivoli House. Indeed, with only one exception, all of these subsequent observations occurred in the early hours of the next morning after the deceased had already stopped breathing and the accused was desperately trying to revive her. The single exception consisted of films captured by CCTV cameras in Tivoli House. A camera in the foyer showed the two of them when they first walked in from the station . The deceased appeared to walk straight into a window or wall, and then to recoil backwards. Another camera in the hallway outside their room showed the accused helping the deceased upstairs and into their room. 36As to what happened after their return to Tivoli House and before the deceased's terminal collapse in the early hours of the next morning, we have only the accused's account during his ERISP a little later that morning. I will be discussing this shortly. 37One of the first people to encounter the accused after the deceased's collapse was another resident of Tivoli House, David Hayes, whose statement was tendered into evidence. He said that at about 1.30 that morning he left his room to go to the toilet which was just along the hall from room 75. He saw the accused standing outside the open door to room 75. The accused asked him to come and have a look at "my lady". Mr. Hayes did so, and saw the deceased lying under a doona. He immediately thought she looked dead. He asked whether she was hot or cold. The accused started crying, saying "she's cold". He leant over and blew into her mouth and did compressions onto her chest. When Mr. Hayes left he was crying quietly and cradling the deceased's head in his arms. 38It must have been at about this stage that the accused telephoned triple-0 and asked for an ambulance urgently. When the operator asked for his address he had to go outside and ask someone else for the street number. He sounded extremely distressed. The operator asked him to lay the deceased on her back and tilt her head backwards and then see if he could discern any breathing. He said: "my baby's not breathing." The operator then instructed him on how to perform CPR. He put the phone on speaker, and the recording of the call (which was admitted into evidence) indicates that he performed a very large number of compressions upon the deceased until the ambulance arrived some minutes later. 39Lee Greensill was staying in room 74 at Tivoli House at that time. At about 1.30 that morning he was in the courtyard having a drink when the accused came down the stairs, very agitated, saying that his girlfriend was not responding. He asked for the street number of Tivoli House to give to the triple-0 operator. Mr. Greensill had been in his room until a short time before this, and said that he had heard nothing from room 75, which was next door to his room. 40The occupant of room 76, which was also adjacent to 75, gave evidence that in the early hours of that morning he heard tapping or banging noises. It was not unusual to hear such noises in that area, he said, and he was not sure whether these ones came from inside the building or outside. This being the case, I attach no weight at all to his evidence. 41Jaime Warhurst was one of the paramedics employed by the ambulance service who came in response to the accused's call. They arrived at Tivoli House at 1.40 that morning. The deceased was lying on the floor in room 75. She was cold, wet, and had bruising around her face, neck and shoulder areas. There was blood in some parts of the room. The paramedics confirmed that there was no pulse, and commenced normal resuscitation measures in this situation. At 1.58 am spontaneous circulation was restored, and at 2.24 am the ambulance left Tivoli House to take the deceased to Royal Prince Alfred Hospital. 42Jodie Anderson was one of the other paramedics to arrive at that time. She noted that the deceased had no clothing on the lower part of her body, which was covered by a doona. The accused was asked why she was wet, and he said that he had put her in the shower in an attempt to wake her up. When asked what had happened, he said that they had been in bed asleep and he noticed that she was not breathing. The accused was extremely concerned, and was saying things like: "come on, come on. You've got to get her back. Please come on. Is she going to make it?" When asked about the swelling and bruising around the deceased's face, the accused said: "she's been fighting with the bitches at Mt. Druitt". 43The extent of the accused's distress was also confirmed by the other paramedic who was present at the time, Lucy Gillett. She told the accused at one point that the deceased was not responding. He became very emotional and upset, saying: "come on, sister, she's only a child, she's only a child." He was sitting on the bed rocking backwards and forwards, she said. 44The accused was asked whether he wanted to accompany the ambulance to the hospital, but he declined, saying he did not know how he would get home. At about the same time police officers attended at Tivoli House. Constable Cicek asked the accused how the deceased got the injuries to her face. The accused answered: "In Mt. Druitt we were near the shopping centre. She went to use the toilets and came back a little while later and said to me 'I got slapped by an Islander slut in the toilets.'" When asked what time this happened, he said at about 11.00 am. 45The accused was placed into the rear of a police caged vehicle, where he was found, sleeping, at about 5.00 that morning by the officer in charge of the investigation, Detective Senior Constable James Mabberley. He was taken to Redfern Police Station and a lengthy ERISP then took place, commencing at 5.38 am and finishing at 7.09 am. At the outset, the accused said that he was willing to participate in the interview, but he wanted it to be fast, because, to use his own words: "I'm really stressed out about seeing my woman." It is to be remembered that a pulse had been restored in the deceased shortly before she was taken to hospital, and the accused clearly thought at the time of the ERISP that she would recover. Indeed he was talking about buying a ring, as they had recently become engaged and were planning a wedding. 46The following is a brief account of what the accused told the police during this interview. He said that the deceased had been "slapped in the head" by Samoans or Tongans while they were at Mt. Druitt. After that they decided to go home. He had no recollection of how they got from Redfern station to Tivoli House. After they arrived back they went upstairs, he said, and the deceased lay down, as she was "wiped out." He said that he then tried to go to sleep but she kept waking and asking for water. He was asked what led up to the ambulance being called, and he said that they were sitting talking, and she kept falling backwards and cracking her head on the wall next to the door. He said that this could have happened anything from five to ten times. Then she went down and did not get up again. At first he thought that she was deliberately ignoring him. Her eyes were looking into space, so he blew into them but there was no response. Her hands were cold and he could not feel a pulse. He started freaking out, he said, so he dragged her into the shower in an endeavor to wake her up. He turned on the hot and then the cold water for a few minutes, then took her back to their room. She still did not respond. At that stage he rang for the ambulance, and started to do CPR, as instructed by the operator. Then the ambulance came and they managed to get a faint pulse. 47The accused was asked for more details about what they did at Mt. Druitt the previous day. He said that they were drinking with some Mt. Druitt people. His accounts were sometimes fairly garbled, but it would appear from what he said that between them they drank two 2-litre flagons of tawny port followed by at least two 750 ml bottles. At one stage the deceased went to the toilet. When she came back she told him that the "bitches" had slapped her. She did not have any visible injuries, he said, except for her eyes. Also her gums were bleeding. After this they continued to drink in the park and then went to the station and caught a train. She had difficulty walking, and he was holding or carrying her wherever they went. 48The accused at this stage also said more about what happened after they had returned to their room in Tivoli House. The reason why the deceased was not wearing pants, he said, was because they had sex at some stage during the evening. They also watched a nature programme on television for a while. It was after this that the accused was trying to get to sleep and the deceased was constantly waking him and calling out for water. He became annoyed, and they ended up screaming at each other, but he denied that he ever became violent. A little later, he said, the deceased started to lean back and bang her head against the wall. She also struck her head on a number of occasions on the iron bar at the end of her bed. During this time she was still calling out for water. Then she stopped, and was lying there without speaking. It was at this stage that the accused started to realise that something was seriously wrong. He blew into her eyes, and when she did not respond he half carried and half dragged her into the shower in an attempt to revive her. What happened after that has already been recorded. 49At the time of the ERISP (which finished at 7.09 am) the deceased was still alive. Indeed it is clear, as already indicated, that the accused was expecting her to survive. Later that morning all endeavours to revive her were abandoned, and life was pronounced extinct. That afternoon the accused was formally charged with her murder. Causation The medical evidence 50The most significant evidence on the issue of causation came from Dr. Rebecca Irvine, the forensic pathologist who performed the postmortem examination on the deceased. Dr. Irvine's autopsy report, which was tendered into evidence, specified "hypoxic-ischaemic encephalopathy" as the direct cause of death. Antecedent causes were listed as (a) "out of hospital cardiopulmonary arrest and resuscitation" and (b) "multiple blunt force injuries." The remaining significant condition which was said to have contributed to the death, but was not related to the disease or condition causing it, was "acute ethanol intoxication". 51In her evidence Dr. Irvine was asked what was meant by "hypoxic-ischaemic encephalopathy". She described it as oxygen deprivation, due to the lengthy time when the deceased's heart was not beating and she was not breathing, leading to extreme and irreversible brain damage. Her evidence made it clear that it was the multiple blunt force injuries sustained by the deceased which were the essential causes of death; for they were responsible for the cardiopulmonary arrest which in turn caused the fatal brain damage. 52It is therefore appropriate to look in some detail at a number of these injuries as described by Dr. Irvine. I should say at the outset that she described all the injuries sustained by the deceased as "acute", meaning that they were inflicted within 24 hours before her death. 53Dr. Irvine was asked if she could indicate which of the injuries sustained by the deceased were the most serious, in that they were most likely to have had a direct link with the cardiopulmonary arrest. She said that this was very difficult to say, because there were so many injuries which together would have had a cumulative effect. Even the bruises beneath the skin, of which there were many, could have contributed to the arrest, she said, for each one represented a removal of blood from the deceased's circulation which in turn reduced the blood supply to the brain. As a result it was very difficult to separate out individual injuries, she said, because there would have been a great deal of interaction between them. 54Having said that, Dr. Irvine went on to describe two injuries as each being potentially life-threatening on their own. The first was a laceration of the liver, and the second consisted of damage to the brain caused by blunt force injuries to the head, which also caused a scalp laceration. 55Dealing first with the liver laceration, Dr. Irvine said that it resulted from blunt force being applied to that area of the body, which then caused a tearing injury of the liver. She noted that there was significantly less blood loss arising from this injury than would normally be expected, leading to the real possibility that by the time the deceased sustained this injury she was already in a state of shock, with reduced blood circulation. Indeed, Dr. Irvine said that it was possible that the liver laceration occurred as a result of attempted cardiac resuscitation. She described this as unusual, but said that liver lacerations can occur with attempted cardiopulmonary resuscitation, particularly if it is carried out inexpertly. 56The deceased was a small, malnourished woman and the accused a much larger man. We heard, on the recorded triple-0 telephone call, the sounds of the accused administering CPR to the deceased. Given the whole of the evidence about this liver laceration, including the time at which it was probably inflicted, I would have to conclude that it is very likely to have been caused by the accused's attempts to revive the deceased. This conclusion is also supported by the fact that the deceased sustained no fewer than 12 rib fractures on the left side of her chest. Dr. Irvine said that there was a real possibility that these fractures were caused by vigorous resuscitation attempts. All the fractures were on the front of the rib cage, and she said that rib fractures were common after cardiopulmonary resuscitation attempts, particularly in malnourished individuals. The number of fractures in this case indicated that the amount of force used and the placement of the hands might well have been less than ideal. 57For not dissimilar reasons I must also put to one side the blunt force injuries to the deceased's head, leading to brain damage. The accused in his record of interview described the deceased as repeatedly falling backwards, both against a railing at the end of the bed and against the bedroom wall. He pointed to blood stains on the wall as indicating where she had fallen. Dr. Irvine said that these episodes might well have caused the laceration on the back of the deceased's scalp and also caused the brain damage which she observed, although she was unable to say whether they were all connected or not. As with the liver laceration, there was less blood loss from these injuries than would normally be expected, indicating that they may well have been sustained relatively late in the piece. In this regard, the accused said that it was immediately after these repeated falls that the deceased went into cardiopulmonary collapse. 58These, of course, were only two of the multiple blunt force injuries which the deceased sustained within that 24 hour period. According to Dr. Irvine, none of them can be excluded as possibly having contributed to the death of the deceased. The list of these injuries is very extensive indeed, as evidenced both in the autopsy report and in the numerous postmortem photographs of the deceased. I do not propose to go through them here, but they include extensive injuries to virtually every part of the deceased's body: her head, face and neck; her hands and arms; her upper and lower back, including her buttocks; and her legs and feet. 59The deceased sustained a fracture of one of the bones in her right hand, which Dr. Irvine said in her autopsy report could well have been a defensive injury. However in her evidence she said that it was "certainly possible" that this injury was caused by the deceased falling on her hand. Indeed, the doctor went on to say that she could not exclude any of the deceased's injuries as having arisen from a fall, particularly with her history of repeated falls. It is unusual to sustain neck injuries in a fall, she said, but it is still possible. It would have required a significant number of falls to cause all the deceased's injuries, given their number and dispersal. But, as the doctor said, falling is a mechanism for sustaining blunt force injuries, and all the deceased's injuries were blunt force injuries. 60It is relevant here to refer to the evidence of Dr. Narendra Gunja, who was called as a witness in the defence case. Dr. Gunja specialises in clinical and forensic toxicology, and he was asked to assess the likely blood alcohol reading of the deceased during the period leading up to her death. It is unnecessary for present purposes to go through the details of Dr. Gunja's evidence on this subject. To summarise it briefly, he considered that the deceased probably reached her highest alcohol level between about 5.00 pm and 7.00 pm on 26 July, and that it was likely to have been above .3%, and could have been as high as .4%. At these levels, an inexperienced drinker would be deeply unconscious, possibly requiring life support, whereas a regular drinker could still be walking around, albeit with difficulty. Significantly in relation to this issue, Dr. Gunja said that physical trauma will have more deleterious effects upon an intoxicated person than on one who is not intoxicated. An intoxicated person will be likely to sustain more serious injury and recovery will be delayed. 61I should also mention here that the deceased was severely hypothermic when she was admitted to hospital, which meant that her body temperature was significantly lowered. In certain cases, Dr. Irvine said, hypothermia can itself lead to cardiac arrest. However in the present case it was almost certainly a result of the fact that the deceased had been without a pulse for some time, which was exacerbated by "environmental hypothermia" arising from the fact that she was wet after having been put into the shower by the accused. In other words, it was very likely that her hypothermia was a result of her condition, rather than being a cause of it. Submissions on causation 62The Crown relied upon the number and the dispersal of the injuries sustained by the deceased in submitting that there could be no reasonable possibility that all of her injuries were occasioned by falls alone. To quote the Crown prosecutor: "there are just so many of them, and they are so widely dispersed and not in any particular pattern." He also relied on the evidence of John Palmer and Glenda Carter, both of whom described the accused as pushing or striking the deceased when they were at Mt. Druitt. Their evidence was supported by the CCTV footage at the Dawson Mall which showed the accused pushing the deceased to the ground. Further, it was submitted, none of the witnesses who observed the deceased before she returned to Tivoli House noted the extensive injuries which were later discovered after her death. It could therefore be inferred that many of these injuries were inflicted by the accused after they had returned to their room. 63Mr. Austin submitted that the very matter relied upon by the Crown, namely the impossibility of determining which of the injuries sustained by the deceased resulted from falls, and which - if any - were inflicted by the accused, makes it impossible for an affirmative finding to be made that any injury inflicted by the accused substantially contributed to the death of the deceased. Conclusion on causation 64This has not been an easy matter to resolve. Ultimately, however, there are two matters which, taken together, have convinced me that I must determine this issue in favour of the accused. They are, first, the heavy onus of proof which the Crown bears in this case, combined with the fact that the Crown must prove that an act or acts of the accused substantially contributed to the death of the deceased. 65Given the totality of the evidence, I accept that the accused almost certainly did, on occasions, vent his frustration by physically assaulting the deceased. After all, he also was intoxicated, although not nearly to the same extent as she was. But I cannot be satisfied that this happened on more than a few occasions. I am certainly not prepared to find, beyond reasonable doubt, that any physical assaults continued after the two of them had returned to Tivoli House. Moreover, any injuries which the deceased sustained as a result of such assaults were likely to have been essentially subsumed by the injuries sustained from other causes, particularly as a result of her falling. In this regard, almost every witness who observed the two of them later in the day on 26 July described the deceased as being almost totally unable to remain upright except with the accused's support. There can be no doubt that she fell on many, many occasions. And according to Dr. Irvine, all the injuries which the deceased was later found to have sustained could have been caused by her falling. 66As already indicated, I am, for present purposes, putting to one side the evidence relating to the deceased's liver laceration and the brain damage which was caused by direct blunt force. The brain injuries were very likely to have been caused when the deceased repeatedly fell backwards, striking her head on the bed rail and on the bedroom wall. And it is highly probable that the liver laceration was caused during the accused's attempts to resuscitate her. Of course, on one level this could be seen as a positive finding that the accused did indeed cause this injury. However when one is considering causation in the context of a murder charge, an injury which was unintentionally caused during an attempt to resuscitate the victim can hardly be taken into account as part of the case against the accused. 67Those two injuries - to the brain and the liver - were, according to Dr. Irvine, the most serious of the many injuries sustained by the deceased. Each of them, alone, was capable of causing death. When they are removed from consideration, we are left with many minor injuries, none of which on their own would be capable of causing death, but the cumulative effect of which was devastating, particularly when added to the liver and brain injuries. Even if I was in a position to identify which of the large number of relatively minor injuries sustained by the deceased were caused by the accused, it would still be extremely difficult to find, beyond reasonable doubt, that those particular injuries substantially contributed to her death. They might well have contributed in a minor way, but that is not sufficient for present purposes. And the situation is made even more difficult when, as here, it is not possible to identify any particular injury or injuries as having been inflicted by the accused. 68In the end, for the reasons given, I am unable to find beyond reasonable doubt that any particular act or acts of the accused substantially contributed to the death of the deceased. It follows that he must be found not guilty of the charge of murder. 69I should add here that even if I had found the causation issue in favour of the Crown, I could still not have been satisfied beyond reasonable doubt of the next matter the Crown must prove in order to establish this charge, namely that the accused had the requisite intention for murder. For the sake of completeness, I will say something more about this, albeit briefly. It is also relevant to the alternative charge, namely that the accused caused grievous bodily harm to the deceased with intent to do so. The Intention of the Accused 70It is necessary for the Crown, in any murder trial, to establish beyond reasonable doubt that, at the time of inflicting the fatal injuries, the accused intended either to kill the deceased or to cause grievous bodily harm (frequently described as "really serious injury"). There is an alternative means of establishing murder, namely by proving that the relevant act or acts were committed with reckless indifference to human life. However that has not been relied upon in the present case, nor could it be in the circumstances. Indeed, as already mentioned, the Crown does not suggest that the accused in this case intended to kill the deceased, rather that he intended to inflict grievous bodily harm, or to really seriously injure her. The intoxication of the accused is a relevant matter when considering this issue. 71As with the issue of causation, the Crown relied upon the evidence that the accused was seen punching and pushing the deceased when they were at Mt. Druitt, as well as the observations of the witnesses who saw the two of them when they were making their way from Redfern station to Tivoli House. On this latter occasion, the accused was heard to say to the deceased: "get up or I'll fucking kill you." As to the evidence of the accused's later attempts to revive the deceased, the Crown submitted that this could be seen as the accused realising, too late, that he had overreacted earlier in the day, and expressing remorse for his earlier actions. It was his intention at the time of inflicting the relevant injuries which needs to be considered, and subsequent remorse, whilst potentially relevant, is by no means decisive on this issue. 72This is certainly the case as a matter of law. However, having taken into account the whole of the evidence on this matter, I am unable to find, beyond reasonable doubt, that on the relatively few occasions when the accused probably did assault the deceased, he intended at the time to really seriously injure her. It has to be remembered that the accused was suffering from a number of serious cognitive deficits. In addition, he was significantly intoxicated at the time, having himself consumed a very large amount of port. In this regard, it is relevant to refer to the evidence of Dr. Ilana Heppner, a clinical neuropsychologist who was called in the defence case. She described the accused's impairment in mental functioning as "significant", saying that 98 per cent of his peers would have performed better than him. These impairments would have been exacerbated by his alcohol intoxication, she said, so that he would have been even less likely than usual to understand the consequences of his actions. 73It must also be remembered that, in addition to the accused's attempts to resuscitate the deceased early the next morning, which certainly indicated a lack of criminal intent at that time, he was seen on the CCTV camera as rescuing the deceased from a potentially extremely hazardous situation at a time which was much more proximate to the events relied upon by the Crown. I am referring to the occasion, on Strathfield station, when the accused grabbed the deceased and thereby prevented her from falling into the path of a moving train. 74For all these reasons I am, as I have already indicated, unable to find beyond reasonable doubt that at the time that the accused inflicted any particular injury upon the deceased, he intended to really seriously injure her. 75This finding not only reinforces the conclusion I have already made in relation to the primary charge of murder, but it also means that the Crown cannot succeed in establishing the alternative charge of causing grievous bodily harm with intent to do so. I should also say that, for precisely the same reasons which led to my conclusion that causation had not been established in relation to the murder charge, I would also have been unable to make an affirmative finding in relation to the first matter to be established under the alternative charge, namely that the accused in fact caused grievous bodily harm to the deceased. Conclusion and Verdicts 76For the reasons given, I find the accused not guilty of both charges in the indictment. Pursuant to s 26 of the Act the accused is to be dealt with as if he had been found not guilty at a normal trial in relation to these charges. ********** 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: 25 November 2014