Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Leung v R [2014] NSWCCA 336 Hearing dates: 15.09.2014 Decision date: 22 December 2014 Before: Hoeben CJ at CL at [1] Fullerton J at [131] Adamson J at [189] Decision: 1. Appeal upheld. 2. Conviction quashed. 3. Verdict of acquittal entered. Catchwords: CRIMINAL LAW - appeal against conviction and sentence - manslaughter - whether conviction was unreasonable or cannot be supported having regard to the evidence Legislation Cited: Crimes Act 1900 - s18(1)(b) Cases Cited: House v The King [1936] HCA 40; 55 CLR 499 M v R [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Markarian v R [2005] HCA 25; 228 CLR 357 R v Blacklidge (unreported, NSWCCA 12 December 1995) R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 R v Leung (No 3) [2009] NSWSC 450 R v Leung [2011] NSWSC 785 R v Leung [2013] NSWSC 259 R v Loveridge [2014] NSWCCA 120 R v PL [2009] NSWCCA 256 R v PL [2012] NSWCCA 31 SKA v The Queen [2011] HCA 13; 243 CLR 400 Stephens v R [2009] NSWCCA 240 Category: Principal judgment Parties: Phillip Wan Por Leung - Applicant Regina - Respondent Crown Representation: Counsel: Mr W Terracini SC - Applicant Ms N Adams SC - Respondent Crown Solicitors: Archbold Legal - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2008/6766 Decision under appeal Date of Decision: 2013-03-28 00:00:00 Before: Price J File Number(s): 2008/6766 Judgment 1HOEBEN CJ at CL: Offence and sentence On 28 November 2012, after a trial which commenced on 12 November, the applicant was found guilty by a jury of the manslaughter of his partner, Mario Guzetti (the deceased). The offence contrary to s18(1)(b) Crimes Act 1900 took place on 7 April 2007. 2The applicant was sentenced in the Supreme Court by Price J on 28 March 2013. His Honour imposed a sentence of imprisonment of 8 years with a non-parole period of 4 years and 6 months, commencing 26 July 2012 and expiring 25 January 2017. The head sentence expires on 25 July 2020. 3The applicant seeks leave to appeal against both his conviction and sentence. The ground of appeal against conviction is that the conviction was "unreasonable or cannot be supported having regard to the evidence". The ground of appeal against sentence is that the sentence imposed was manifestly excessive. 4The matter was heard by the Court on 15 September 2014. On 25 September 2014 the Court conducted a view of the premises where the offence took place with a particular focus on the stairs, the kitchen and the hallway from the stairs to the front door. 5The matter has had a somewhat chequered history. * 20 April 2009 the applicant stood trial in the Supreme Court for murder before Rothman J and a jury. * 4 May 2009 Rothman J directed the jury to return a verdict of not guilty to murder and also a verdict of not guilty to manslaughter (R v Leung (No 3) [2009] NSWSC 450. * 8 October 2009 this Court upheld the Crown appeal against the directed verdicts in part. It ordered a new trial on the charge of manslaughter but the acquittal on the charge of murder was affirmed (R v PL [2009] NSWCCA 256). * 1 October 2010 special leave to appeal to the High Court of Australia was refused. * 18 April 2011 the applicant stood trial in the Supreme Court for manslaughter before Adams J and a jury. * 28 April 2011 Adams J directed the jury to return a verdict of not guilty on the charge of manslaughter (R v Leung [2011] NSWSC 785). * 20 March 2012 this Court quashed the acquittal and ordered a new trial (R v PL [2012] NSWCCA 31). * 12 November 2012 the applicant stood trial in the Supreme Court for manslaughter before Price J and a jury. * 28 November 2012 the jury returned a verdict to guilty to manslaughter and the applicant's bail was revoked. * 28 March 2013 the applicant was sentenced by Price J (R v Leung [2013] NSWSC 259). Crown case 6On 7 April 2007 the deceased was aged 71 and the applicant was aged 46. The applicant and the deceased had been in a homosexual domestic relationship for approximately 4 years. They lived together in a jointly owned terrace house in Alexandria (the premises). 7About one month before his death, the deceased spoke to a friend, Giovanni Di Francesca about his relationship with the applicant. He told Mr Di Francesca that the relationship was deteriorating, that he wanted to end it, that the applicant was becoming aggressive and that he was frightened of him. In the month before he died, the deceased continued to visit the shop of Mr Di Francesca and spoke of problems he was having in his relationship with the applicant. 8Mr Carter was a friend of the applicant and the deceased, having previously been in a relationship with the applicant. Mr Carter gave evidence that the applicant had become a frustrated and difficult person following an attack upon him, which resulted in him losing his eye about 18 months before the death of the deceased. He said that while the applicant was very blunt, he had never known him to be violent and that he would walk away to calm down if he lost his temper. He gave evidence that he spoke to both the applicant and the deceased separately on 6 April 2007 and was told by both men that they had had an argument. Both confirmed social plans with Mr Carter for all three of them on the weekend and for the three of them to travel together to China on holidays. 9Fiona Cunney and her family lived in the terrace house which shared a common wall with the premises. Renovations were being carried out in both terraces and Ms Cunney gave evidence of ongoing problems between herself and the applicant due to the renovations. This included an argument over the applicant's access to his driveway that resulted in the applicant becoming abusive. The deceased came over to Ms Cunney's house the day after the incident to apologise for the applicant's behaviour and explained that the applicant was having difficulties coping with ageing and losing his eye. Ms Cunney overheard the applicant shouting on 6 April 2007 at about 2pm but could not hear what was said. She said that she was concerned about the applicant's behaviour. 10At around 8.15am on 7 April 2007 Ms Cunney heard noises coming from the premises through the common wall. She described hearing what sounded like a shelf with pots and pans on it, falling, and the lid or lids rolling on the floor. She then heard what sounded like the deceased singing for about 10 seconds, something he regularly did. About 10 minutes later she heard the applicant screaming and crying. This lasted about 10 - 15 minutes and then an ambulance arrived. 11The stairs in her home were similar to those in the premises and Ms Cunney said that her stairs were difficult to negotiate and that she had slipped on the stairs and fallen up and down them many times. 12Guiseppa Di Francesca, Mr Di Francesca's wife, was also a friend of the deceased and the applicant. At around 9am on 7 April 2007 she telephoned their landline and the applicant answered the phone. Mrs Di Francesca said "Hello Phillip it's me" and the applicant responded by continually crying and would not, or could not, talk. Mrs Di Francesca contacted her husband and daughter, who were out together, and told them of her concerns following her telephone call with the applicant. She directed her husband to go past the premises to check on the deceased. 13Following the telephone call from Mrs Di Francesca, Mr Di Francesca and his daughter attended the premises. Upon arrival, Mr Di Francesca could hear the applicant screaming and could see him through the front door sitting on the stairs, holding the deceased's head wrapped in a pillow. He yelled for the applicant to open the door, but the applicant did not respond. He then became aware that the door was open so he entered. The applicant was screaming hysterically and Mr Di Francesca could not communicate with him, so he ran back to the car and asked his daughter to call an ambulance and waited outside. 14His daughter called triple 0 and was told that a call had already been made and that an ambulance was on the way. The applicant made a call to triple 0 at 9.12am on 7 April 2007. He was crying throughout the call and said "I have a fight with my friend and my friend dead" (exhibit K, T.147-148). 15Ambulance Officers Agars and Kaza arrived at 9.24am. They entered the premises and saw the applicant sitting at the bottom of the stairs with the deceased's head in his lap on a pillow. Officer Agars said that the applicant was "cradling the pillow and rocked the patient's head from side to side. The Asian man was hysterical. He was wailing loudly" (T.28.47). 16The ambulance officers had difficulty accessing the deceased because the applicant was hysterical and would not let them near. They tried to calm him and he eventually moved and allowed them to treat the deceased, but continued to cry loudly and hysterically, rolling on the floor and trying to get closer to the deceased. Officer Kaza assessed the deceased. He had no pulse, his body was cold and the heart machine detected no activity. The only injury recorded by the ambulance officers was a cross shaped injury to the deceased's chin. Officer Agars noted that part of a juicer was lying fairly close to where the deceased lay. 17The police were called to control the applicant and upon attendance, they restrained him so that the ambulance officers could properly treat the deceased. When the police arrived they observed that the applicant was hysterical, wailing loudly, inconsolable and incapable of communicating. They said that he seemed to be genuinely distraught, not feigning the hysteria. Senior Constable Simpkins assisted the ambulance officers with attempts to resuscitate the deceased (T.63.16). Senior Constable MacInnes decided to treat the scene as a crime scene and to secure the applicant so that he did not contaminate the scene. 18At some stage the applicant appears to have been saying "Mario, Mario" and "wake up Mario, wake up Mario". He was physically restrained by Constable Isabel Lawler and Constable Ryal, who each took hold of one of his arms and he was eventually taken outside. The applicant attempted to break free of Constable Ryal's grip and struggled with the officers. The applicant was not under arrest at this time but was handcuffed to prevent him hurting himself or others due to his erratic behaviour. It took more than one officer to physically control the applicant and handcuff him. 19The applicant was placed in a police caged truck and taken to Redfern Police Station. While in the police truck, Senior Constable Simpkins had the following conversation with the applicant: "Simpkins said, "I am going to ask you some questions about what happened. You do not have to say or do anything unless you wish to." Leung said, "Yes." Simpkins said, "Anything you say or do may be recorded and this recording may be used in court. Do you understand that?" Leung said, "It's too late. I need my medication." Simpkins said, "What is your medication for?" Leung said, "Depression." Simpkins said, "What happened?" Leung said, "We had a fight." Simpkins said, "What was the fight about?" Leung said, "I want my medication." Leung did not say anything further to police." (T.60.50 - 61.8) 20At Redfern Police Station the Custody Manager arranged for a mental assessment of the applicant due to his presentation. At around 11.30am, Mr Carter received a call from the Redfern Police advising that the deceased had passed away and that the applicant was at the station and hysterical. Mr Carter attended Redfern Police Station and was taken to see the applicant. He was crying hysterically, and insisting that the deceased was not dead. The applicant told Mr Carter "We had an argument, we had an argument" and "I was making carrot juice with juicer, Mario kept at me" (T.163.31). Mr Carter asked the applicant what happened then and the applicant began crying and sobbing even more and said something about the juice, but his responses were unintelligible. 21At around 3.30pm the applicant in the presence of Mr Carter had a conversation with Detective Sergeant Hamill during which the applicant said "He is not dead. He is only in hospital" and "I didn't kill or murder him". Detective Sergeant Hamill informed the applicant that the deceased was dead and asked the applicant to tell him what happened to which the applicant responded "I don't remember. We have breakfast. Mario argue with me. He criticise me a lot. Oh Phillip, then my head started spinning but I don't know what happened" (T.315.36). 22Mr Carter then suggested that the applicant should get some legal advice. Thereafter the applicant exercised his right to silence and did not participate in any further interviews with the police. 23Dr Stewart, a Police Forensic Medical Officer, examined the applicant at Redfern Police Station and made this observation about his wrist: "A. ... I instantly looked at it and thought it looks like a Chinese burn. Q. Chinese burn? A. One hand screwing the skin one way and the other hand screwing it the other way, and if you do it for long enough you will get an area of discoloration underneath the skin which makes - it's visible, and it's just what it looked like." (T.206.10) 24She gave evidence that this kind of mark was more easily caused by one person, rather than by two. She said that she was not told of the extent of the applicant's physical resistance to his removal from the crime scene, or that he was handcuffed while struggling with two officers. In cross-examination, her evidence was: "Q. One person and then during a struggle I want you to assume two people then assisted in cuffing him? A. I think, I would, from, I find it difficult to believe that one person in the context of an arrest would have done it. When I saw it I thought it looks as though this has been a mark inflicted in self defence to ward somebody off but not an arresting person. It did not strike me as that sort of thing." (T.214.25) 25In relation to the premises, the police witnesses gave evidence of damage to the wall above the doorway in the kitchen. This consisted of plaster pieces on the ground that appeared to have come from the damaged wall and carrot pulp around the chipped wall. Detective Griffin, crime scene examiner, took photographs of the deceased and the house. He observed blood staining on the northern wall and both sides of the door jamb, behind the deceased's head, on the handrail of the staircase and injuries to the deceased's hands. He also observed a red substance, which he thought to be blood on the metal juicer found near the deceased. The juicer was taken and forensically tested. 26Evidence was given by a DNA specialist, Ms Franco. She said that the metal juicer went to the fingerprint section first to be tested. By the time it came to the DNA section, the red substance which was shown on it in the photographs was no longer present. "Q. And in relation to your observation of this particular item when you got it did it have any observable blood on it like is shown in these photographs or did it have some other substance colour on it? A. It had no obvious or evident red brown or red stains. The only stains were blue green stains which I assumed were from the fingerprinting process. Q. And do you know whether that affects testing for blood or not? A. I don't know this particular stain that was used but I have had trouble in the past with the confirmatory test for blood. So it does affect it." (T.273.23) 27The deceased's DNA matched the DNA located on the spout of the metal juicer and he could not be excluded as a contributor to DNA on a different part of that juicer. The applicant's fingerprint was located on the juicer. Testing did not find any blood on the metal juicer. The applicant's DNA was not located beneath the deceased's fingernails and the deceased's DNA was not located under the applicant's fingernails. 28Dr Rodriguez, neuropathologist, gave evidence regarding his examination of the brain of the deceased. He diagnosed a blunt force head injury, which involved bleeding over the surface of the brain, bruising to the front and on the left side of the brain and bleeding and bruising to some internal structures deep within the brain. Dr Rodriguez was not able to say whether the brain injuries killed the deceased. He said that these brain injuries would not normally result in death. 29His evidence was: "Q. There was a contusion or a laceration on the back of the head that was noted by Dr Botterill and there was bruising under that laceration, but that doesn't necessarily mean that there will be bruising in that area of the brain, does it? A. No, it does not. Actually it is more common in that situation if there's a, a bruise or a laceration at the back of the skull from somebody falling over backwards you are more likely to see the bruising to the brain at the front of the brain where the brain comes into contact with the rough part of the skull." ... A. Well, I use the term blunt force injury to distinguish it as you said from a sharp force injury such as due to a gunshot wound or being stabbed with a knife or a pair of scissors or something like that." (T.289.25) 30Dr Rodriguez said: "Q. Can you explain to the jury what a contrecoup injury is? A. Okay. A contrecoup is if you have a blow to one part of the skull, the injury is on the contrary side. So if you have a blow to the back of the skull the injury is to the front of the brain." (T.295.41) 31Dr Paul Botterill, Forensic Pathologist, conducted the autopsy on the deceased and gave evidence in the Crown case. He gave evidence that because the cause of death was not clear, the brain was looked at by a neuropathologist, Dr Rodriguez. 32Dr Botterill's evidence, as a result of the autopsy was: "In plain terms autopsy findings included tears over the skin of the right side of the chin, tears, grazes and bruises over the skin of the right side of the floor of the mouth, that is the tissue underneath the chin, with multiple skin tears and bruises over the front of the neck and the upper front of the chest, bruising beneath the skin at the back of both sides of the head, a tear of the lining of the inside of the mouth near the right lower lip, some blood over the brain surface, bruises to the left back and hip region and multiple bruises under the skin of the right arm, left forearm, right wrist and knuckles of both hands. ... Further investigations were performed. Brain examination showed changes of blunt force head injury, with brain surface and deeper bleeding and bruising ... As at the time of the autopsy, the cause of death was most probably the consequences of head and neck injury. Although any of the individual injuries might be associated with a simple fall, the extent of distribution of the injuries is more in keeping with multiple blunt force contact. It is possible that the neck bruising and chest injuries are related to application of force to the neck but no discrete ligature mark or eyeball haemorrhages were identified." (T.225.29 - 226.6) 33Dr Botterill was able to inspect the premises. Having done so, he did not believe it was possible for the deceased to have fallen down the stairs and be in the position where he was found. Dr Botterill said: "Now, in relation to a fall, from your findings, from the lower, from the landing falling down six steps to the injuries that you saw, are they consistent with falling down those lower six steps? A. No. Well, in my opinion, no. I think the extent of the injuries, the front of the chest, the neck and over the head would not be occasioned by a simple fall down that number of steps. I'm, I can't recall a case where I have ever seen that extent of injury in that distribution over a fall downstairs. Q. What about a fall from the top of the stairs? That would be a most complex fall because it would require a person to come down and then turn around and then go down the bottom six steps, would it not? A. Yes. Again I can't recall in any case I have had any association with anybody having a fall of that complexity. Nor for that matter in discussions with my colleagues can any of us recall a case where that could occur. Although there is always a theoretical possibility that somebody perhaps who was having a seizure may by a movement of the limb somehow be able to change direction but I think it is extremely unlikely." (T.227.40 - 228.6) Q. In relation to a possible fall down the stairs we have talked about that early in your evidence but the number of injuries that you observed on this deceased is that consistent with a fall down the stairs or not? A. It is conceivable but very unlikely that those injuries would all be explained by a fall down the stairs. Q. In relation to the injury to the chin you may well be asked whether that is consistent with hitting one of the bollards on the stairs, one of the rounded bollards on the stairs. Would that be likely to cause this complex injury to the chin? A. It is a possible explanation partly because of the curvature and the location it is still possible even hitting something such as a rounded object such as that may result in a tear such as that. Q. Is it likely? A. It is possible. I can't more specific than that. (T.251.22) ... Q. Doing post mortems have you ever seen such a collection or constellation of injuries resulting from a fall downstairs? A. No." (T.252.22) 34In relation to the wound to the chin, Dr Botterill said: "Q. ... What I want to ask you doctor, the wound that you saw to this man's chin, is that consistent with being struck by the spout of this juicer? A. Yes. There's, the features of the wound to the chin are not specific enough to enable me to say it must necessarily have been that but that is a possible explanation. Q. It is a complex wound you would describe it as, would you not? A. Yes, yes. Q. And would you agree that the wound itself may have been the result of one or more than one blow to the same area? A. Yes. Q. There is also damage to the area behind that bruising, that is the mouth of the deceased that you noted? A. On the inside of the mouth cavity, yes. Q. Would that be occasioned by force being applied by say this juicer to the outside and that causing injury or damage to the inside of the mouth? A. That is certainly possible yes." (T.226.33) 35Dr Botterill identified a total of 16 specific injuries which he numbered and described (T.229-237). After reviewing and describing the first 8 injuries, Dr Botterill said: "Now, in relation to those injuries doctor, can you indicate whether they were consistent firstly with a fall down stairs? A. Any individual one of those marks could be from a contact that might occur in a fall. But it would be an extraordinary fall to result in that full distribution of injuries just in that group let alone amongst all the other injuries that were there. Q. And considering that the deceased was wearing clothing what do you say in relation to the possibility of those injuries being caused by being struck with a metal component of irregular shape such as this juicer bowl? A. That would be another explanation for them, yes. Q. (Exhibit D shown). In relation to the juicer bowl, please look at that, particularly in those injuries you have just been referring to as depicted in photo 27, is there any part of that metal implement that you have before you that is called a juicer bowl, anything from there that could have caused those injuries? A. Practically any of the surfaces here may have been responsible for some of those injuries. Even though they appear as though they are lines, it doesn't follow that there must be something straight projecting to result in an injury, a blunt force. A contact with a blunt area on here may also result in what appears to be a straight or slightly curved area. So many areas over here could be responsible, or could result in that sort of injury. Q. If that as you are holding it now by the spout, if that were used as a handle and the deceased was struck with that implement on any side, would that be consistent with causing injuries like we've seen in photograph 27?" A. Yes." (T.233.36 - 234.13) 36Dr Botterill considered that the bruising to the deceased's neck may have been caused by strangulation. On that issue, he said: "Q. Stopping you there doctor, if indeed the deceased was lying on the ground and the accused is strangling him, would that be consistent with the bruising that you have seen on the neck? A. Certainly that would be an explanation for it. It's certainly not the only possible explanation but yes, it would be an explanation for the bruising." (T.238.37) 37That opinion was, however, significantly qualified: "Q. Obviously bruising on the neck is indicative of either strangulation by hands, for example, or a ligature of some type, is that right? A. They're two possible explanations. You can also get bruising from blunt force contact, not necessarily with fingers but with other structures. You could also, of course, get bleeding from relatively minor trauma, particularly if somebody were on a blood thinning medication or had some particular pre disposition to bleeding easily, but, yes, strangulation is one of the possible explanations for bruising into the tissues." (T.239.32) 38In relation to bruising over a broad area of the front and both sides of the neck and over the front of the chest, Dr Botterill said: "Q. If indeed this metal juicer bowl was used to strike the deceased in that area, that is the area of the chin again and also the neck, could that cause such bruising? A. Yes." (T.239.48) 39In relation to bruising of the brain, Dr Botterill said: "Q. What causes bruising in the brain? A. Again some form of transmission of force against the brain surface, so the brain either bumping against the inside of the skull, so bumping against the inside of the skull. ... Q. In relation to these areas of haemorrhage, bruising of the brain, they were all caused by blunt force injury, are they not? A. It's just the usual explanation. Usually blunt force causes the brain to be moved and it's that twisting movement inside the skull that results in these sorts of changes. Q. Could a blow to the area of the chin with a hard object, such as this juicer bowl, could that have caused the brain to be bruised as you've just described? A. Yes, it's possible. It's true that most people who have an injury such as that will not get significant brain injury but, yes, it's certainly possible. Q. But a fall on to the back of the head, could that be likely to cause the injuries that you've described? A. Yes." (T.242.3 and T.242.49) 40Dr Botterill concluded that there was nothing to suggest that a heart attack or other abnormality of the heart itself played any part in the deceased's death. On that issue, Dr Botterill was asked questions in relation to the opinions of Professor Hilton and Professor Duflou, who gave evidence in the applicant's case. "I don't particularly disagree with much of the detail in Professor Hilton's report except he has more concern about the possibility of the heart being an alternative explanation for the death. Again I do not agree with that opinion but I respect the fact it is not an unreasonable suggestion to be made. Again I can't really say too much more about Professor Hilton's report in that respect of. With Professor Duflou's report I think the main difference between our views is that he does not appear to have the same concern about the extent of the bruising over the neck that I have. Nevertheless my view is that, although I can't say with certainty those bruises were necessarily strangulation, some form of blunt force contact has occurred and in my opinion it is most likely that whatever that blunt force contact was, particularly in combination with the injury to the head, is a more likely explanation for why he died." (T.248.25) 41In cross-examination Dr Botterill was asked to explain the somewhat counter intuitive proposition that bleeding might not immediately follow a heavy blow to the body. "Q. But again sometimes wounds do not accord with commonsense, you don't bleed instantaneously do you, only in rare cases? A. Well it does depend on where the injury is located but with many lacerated wounds the bleeding may not be instantaneous, that is true. Q. The mere contact does not result automatically in blood flow does it out of the body? A. Again it does depend on the circumstances but, correct, you won't necessarily get immediate release of blood at the time of contact, no." (T.255.42) 42Dr Botterill was asked questions concerning difficulties in estimating when bruising took place. "Q. As they start to become yellowish that is a guide that even that is not a firm tool in aging a bruise is it? A. It is about as firm as we have. It is true that the yellowish discolouration is because of the chemical breakdown of the red cells by a particular process we know takes at least 18 hours, probably about 24 to occur, but as with one of the injuries here you cannot exclude there is more than one time of bleeding in any particular site and there is no test available to enable you to state that. Q. It is one of those areas where old fashioned observation is about as good a guide as any? A. In my opinion yes. Q. Well in terms of the length of time that a bruise can still be exhibited on your body they can last over a week sometimes, even longer? A. Yes. Usually if they last more than that first day or they are visible for more than the first day they will undergo some change as they fade so they will develop a yellowish or brownish discolouration then fade but certainly with a deep bruise it can still be there a week later for sure. Q. What is the outside age of the bruising in the chest and neck area? A. Again I can't really say beyond about either at the time of death up to about a day before." (T.258.14) 43Dr Botterill was asked questions about the bruising of the chest: "Q. The bruising on the chest if you are a lay person and you are indulging in a frenzied attempt to resuscitate someone by shaking them and pressing hard on their chest does that [deliver] bruising? A. Yes it can. The location is not typical for resuscitation but if one were placing the fingers and hands up in the high chest on the neck, yes, that could be an explanation for bruising. Q. Particularly if you don't know what you are doing? A. It is misguided but yes it is possible." (T.259.39) 44Dr Botterill was cross-examined as to the cause of death: "Q. Well did that kill the deceased, the blow to the head? A. Again I can't say with certainty that it did. I can say it certainly is potentially fatal but I can't give you the assurance that it was that alone and not necessarily in conjunction with the neck injury. (T.259.5) ... Q. Certainly? A. I admit I cannot say with [certainty] whether it is the head injury alone, the neck injury alone or combination of both, just I believe it is most likely to be a combination of both. I cannot point to any other additional feature to help in that delineation." (T.262.6) 45In summary, the Crown case was that on the morning of 7 April 2007 an argument took place between the deceased and the applicant which escalated to such an extent that the applicant struck the deceased to the chin and at other locations with the metal juicer which caused the deceased to fall and hit his head and that the applicant also strangled, or attempted to strangle him, and that these acts caused his death. Defence case 46The applicant did not give evidence. 47The case for the applicant was that the Crown could not exclude the possibility of a variety of causes of death and could not establish that any act or acts of his caused the death of the deceased. 48There was evidence that the applicant was a person of good character with no criminal convictions. There was evidence that the applicant was in a loving and caring relationship with the deceased. While Messrs Carter and Di Francesca gave evidence that the applicant and the deceased argued like most couples, both said that these arguments were verbal and that the deceased had never told of any physical violence between them. 49Ronald Johnson was a long term friend who gave evidence in the applicant's case. His evidence was that he himself was in a long term homosexual relationship and that he had close personal dealings with the applicant and the deceased and that they seemed happy together and were a "normal gay couple". He had never observed the applicant to be violent. 50Mr Veness was a licensed builder who carried out an inspection of the stairs in the home. He found that the rise and tread of the stairs did not comply with current building codes. He said that he had difficulty coming down the stairs and had to be careful not to overstep and miss the tread. Based on my observations when a view of the premises took place, I would agree that the treads are very narrow and that one has to take particular care when descending the stairs so as not to fall. 51Two expert witnesses were called in the defence case. Their evidence can be summarised as follows. 52Professor Johan Duflou was a forensic pathologist. He had not been to the premises. There was no issue that he, like Dr Botterill and Professor Hilton, was very experienced in his field and at the time that he gave evidence was a director of the Forensic Medicine Clinic which is commonly known as the Sydney Morgue. He explained that in about five to ten percent of cases, forensic pathologists might not be able to determine a definite cause of death. 53Professor Duflou rejected the proposition that the deceased had died as a result of his heart condition. "Q. He had an enlarged heart, he had a 50 per cent blockage in one of the arteries and I think 25 in the other two? A. Yes, that's correct. Q. That of itself is not going to kill him, is it? A. I don't believe it does. As I said earlier, if the pathologist is honest with himself in terms of seeing that level of heart disease, I think that it is a normal degree of heart disease for a person of that age. Arguably a number of us in this room could have that extent of heart disease. I don't think it would be reasonable to say that death was as a result of that heart disease. Now, there are always exceptions in this, but to me that extent of heart disease I would not class as severe, although there was some disease present." (T.346.8) 54Professor Duflou gave evidence concerning the juicer found near the deceased: "Q. In terms of the juicer that you have read about, would you expect that if that implement had struck the deceased man at least once in the chin occasioning the laceration that you have observed, once on the back of the head, perhaps a couple of times in the chest and blood obviously flowing, would you expect to have blood on this implement? A. Yes, I would. The first blow which causes a breakage of the skin need not necessarily have blood on it. Q. Can I just ask you to pause there, professor. Again lay people generally expect that if you belt somebody hard with some implement and they bleed that the blood is going to flow instantaneously, but that doesn't necessarily follow, does it? A. No. It's something that you would imagine instinctively would be the case. I don't know if it has been your personal experience potentially, but you certainly can sustain an injury and it initially doesn't bleed and then after a few seconds oh, there's blood there. That certainly does happen in real life and very frequently the initial the object which causes the initial impact does not have blood on it but it is subsequent impacts which get the blood on it. Q. And if that implement was used to strike the deceased up to three, maybe four times, it would be highly irregular not to have blood on the implement? A. Well, I think it's fair to say if bleeding had commenced and the blows were sustained in the area where there was now blood that I would really think there would be blood on it, yes." (T.346.21) 55Professor Duflou said that a fall from one's own height, especially if a person fell backwards, was potentially very dangerous and could be lethal. He identified that type of head injury as a contrecoup injury. He said: "... The exact mechanism is open to some debate, but essentially from purely falling backwards on to the back of your head you can die. It's a relatively uncommon outcome but it's certainly one that's in the standard experience of any forensic pathologist who does autopsies, even on an irregular basis. It's one of those things that you see and that you know about, and I have certainly seen them and a fair number of them over the years." (T.347.1) 56Professor Duflou was of the opinion that the injury to the deceased's chin could have been caused by coming into contact with one of the bollards on the stair. He said: "A. It could. Looking at the bollard it's relatively featureless, it's round, it has no sharp surfaces, but certainly striking a rounded surface hard enough can cause a laceration like that." (T.347.45) 57Professor Duflou was not able to say whether the deceased was standing up when he sustained the injury to his jaw. He was not able to say whether the deceased was standing up when he was hit or came in contact with something on the back of his head. He was not able to say whether the impact to the chin took place before the impact to the skull at the back. In relation to the possibility of unskilled attempts at resuscitation causing bruising to the deceased's chest, he said: "Q. Did you see any indicators of misguided resuscitation, that is, very small bruises in the incorrect part of the chest area that we know should be applied? A. Well, there were grazes and bruises in that area. Their mechanism, or what the purpose of those bruises is, I don't know. It could be the result of being struck in that area, it could be the result of being scratched or whatever in that area, possibly the clothing pulled, I don't know. It could be an attempt at resuscitation, certainly not expert by any stretch of the imagination. I don't know." (T.349.47) 58In relation to the cause of the deceased's death, Professor Duflou said: "Q. Can you help us with the cause of death? What is the [cause] of death? A. In my view at a fairly simple level I believe the cause of death is most likely a head injury. There's brain damage. There has obviously been impact with the head in some way or other and there has been a couple of impacts to the head. I must say I personally would not have considered a neck compression in this case as being contributory and I don't think the heart disease was contributory in terms of causing death. So my personal view would have been that a head injury is the cause of death. In terms of the nature of the head injury, it's a blunt force type injury of a diffuse nature. How that was caused, I don't know." (T.350.30) 59Under cross-examination Professor Duflou gave evidence as to the possible mechanism of the deceased's death. "Q. You referred earlier to contrecoup type injuries. There is bruising to the front of the brain, is there not? A. Yes, there is some bruising to the front of the brain, yes, definitely. Q. Not extensive but some bruising? A. Yes, correct. Q. That is consistent, is it not, with the brain moving forward similar to a contrecoup injury and striking the front of the skull and causing that bruising? A. Yes. Q. So a scenario that the deceased was struck in the chin area by the juicer, that he fell back and hit the floor and perhaps a wall causing injury to the front of his brain is consistent with that, is it not? A. That is a possibility, yes. Certainly I don't think I have ever moved away from that." (T.356.35) 60He gave this evidence in relation to the shape of some of the bruises to the deceased's chest: "Q. ... Now, you see they are varying degrees of darkness but they are basically curved lacerations are they not? A. I don't think they were described as lacerations. They were abrasions mainly. Q. Oh sorry, bruises? A. Yes. Q. But they are curved, are they not? A. Some are. Some are not, but some are. Q. Would they be consistent with being caused by this metal juicer bowl? A. It is possible that some of the edges of that juicer bowl could cause that, yes." (T.357.36) 61Professor Duflou did not consider that the deceased's injuries were caused by him falling down the stairs. "Q. In terms of falling down a set of stairs doctor, those injuries don't appear to be consistent with that, do they? A. Probably not. It would be difficult to try and attribute it to something specific causing that. After saying that, you can get unusual injuries from tumbling down the stairs but I'd agree that likely not. Q. And you would agree that certainly in relation to a possible fall from the top of the stairs that that is unlikely, is it not? A. I would think that it's unlikely that the deceased fell down one flight of stairs and then turned around and a second flight, given the injuries that are seen externally. It can certainly happen that a person falls down two flights. That's unusual, but I would expect more injury I would think. Q. Yes. Perhaps more bruising to the legs or arms or those areas that would come into contact with the hard object? A. Yes." (T.358.4) 62In relation to whether attempts at resuscitation caused chest bruising, Professor Duflou said: "Q. But these cuts above don't appear to be anything in your experience anything like attempts, good or bad, about resuscitation? A. They are not cuts, I emphasise again. Q. A breaking of the skin? A. Grazes, yes. This is not expert resuscitation, by no stretch of the imagination is that what you see in, you know, any competent resuscitation at all. Q. No. And it is more consistent, is it not, with being struck by a juicer, exhibit D? A. That may very well be the cause, yes." (T.362.5) 63Professor Duflou thought that it was most unlikely that the deceased had been strangled. 64Professor Hilton was also a forensic pathologist. He also had worked at the Division of Forensic Medicine, connected with the Coroner's court and had performed many post mortems. He did not visit the premises. 65Professor Hilton gave evidence that the deceased's cause of death was unclear. "Q. If we could just go then immediately to this case at hand. On the material that you have been given and you have heard and you have read, what caused the death of Mr Guzzetti in this case? A. Well, to me the actual cause of death here is unclear. Dr Botterill who performed the autopsy gave as his opinion that the cause of death was a combination of blunt head injury and I think neck injury. He couldn't quite properly in my opinion distinguish between which of these groups of injuries was more likely than the other, if indeed there was one more likely than the other, to have caused the death. And I think the, I think that his reticence if you like was entirely justified. Q. Did you see, and I think you have used this phrase in the past concerning this case, did you see any stigmata of strangulation? A. Well, there was some bruising to the neck. Now, excluding that or putting that to one side, the other things one usually sees or often sees in cases of manual or ligature strangulation just were not present. There is very often little pinpoint haemorrhages in, on and around the eyes, on the cheeks. There was no evidence of that whatsoever. There is not infrequently damage to the cartilage that go to make up the Adams apple, particularly if the subject is an older person. There was no evidence of any damage to these cartilages. Sometimes one sees a break in a little horseshoe shaped bone that sits above the larynx underneath the jaw called the hyoid bone. Again, there was no evidence of any damage or fracturing to that bone. Q. As a result do you think that a cause of death was strangulation or attempted strangulation? A. I think the cause of death here is obscure." (T.376.46 - 377.25) 66Professor Hilton did not think the brain injury was sufficient to cause death: "A. Well, no. The, the, there were injuries to the brain but the most likely mechanism by which brain injury kills, apart from things like gunshot wounds and what not, is swelling of the brain in response to injury and the swelling then progresses to compress the vital centres of the brain and the brain stops functioning. This was not present here. There was no evidence of brain swelling anything like approaching the expected fatal level." (T.378.18) 67In relation to a fall down the stairs, Professor Hilton said: "Q. In terms of the staircase itself, if the head impacted with the solid timber structures of the staircase or on a wall, could that cause the injuries to the head? A. Yes. The, it's a nonspecific phenomenon that could be induced by something hitting the head, the head hitting something, the person falling over. It is not uncommon, it is not an uncommon mechanism of death when someone falls over backwards and bangs the back of the head, for instance. Q. And so the members of the jury understand, you don't have to fall from great heights. You can unfortunately die just falling backwards or forwards I suppose, from your own height? A. Well, usually backwards from your own height, yes." (T.378.36) 68Professor Hilton was not able to exclude a heart attack as being the cause of death. "Q. Can we tell whether the deceased man had a heart attack before a fall or didn't have a heart attack at all in this case? A. No, we can't. There was no physical evidence visible either by the naked eye or by microscopy of tissue changes associated with a heart attack. However, where death occurs with rapidity or extreme rapidity or with sudden death you can well have a state where there is absolutely no visible evidence and in fact there is no biochemical evidence, either." (T.379.35) 69In relation to the bruising to the chest and neck, Professor Hilton rejected strangulation as a cause but thought there could have been other causes: "Q. In relation to the injuries to that area, given the severity of the bruising that you see, are you able to say with any certainty that that may have been caused either in the act of attempted strangulation or by striking the deceased with this juicer component? A. I don't think it's at all likely to have been induced by an act of attempted strangulation. The bruising is nonspecific in the sense that it could have been produced by a flattish object such as the juicer, yes, but I would not support the proposition it was associated with attempts at manual strangulation. Q. Would the marks on the chest be suggestive of there being a struggle A. Yes. Q. between the protagonists? A. Yes. Q. Professor, would you say it's highly unlikely that those marks and bruises were caused by a fall, given the number and complexity of them? A. A simple fall, I think unless it was against some object I would be - I would not support the simple fall as causing this entire complex of bruising. Q. Because in terms of the actual wounds themselves, they were counted to be, I think, nine in number by Dr Botterill. Do you accept that? A. There were nine marks which may correspond to individual bruises sorry, I take that back, which may correspond to individual blows. Q. And in relation to those injuries, that is, the injuries to the neck and the injuries to the chest that you refer to, would you be prepared to say, professor, that they are inconsistent with a fall? A. I would not go so far as to say they were absolutely inconsistent with a fall. Q. Well, in relation to the injuries to the chest, given the number of them, and you have just given this evidence, they are not consistent with a simple fall, are they? A. No, unless it was on to a complex surface." (T.387.48 - T.388.31) 70A further relevant consideration is the direction made by Price J during his summing up as follows: "The evidence in this trial does not enable you to draw an inference that the staining seen by Detective Griffin on the juicer was blood, let alone human blood. Please remember that in a criminal trial that suspicion or irrational guess is not enough to reach that conclusion. It is my firm direction of law that you must not conclude that the staining on the juicer was human blood and more particularly, the blood of Mr Guzetti." (SU 31.9) Neither side challenged the correctness of that direction in the appeal. Submissions and consideration 71The function of this Court in a conviction appeal was explained by the majority (French CJ, Gummow and Kiefel JJ) in SKA v The Queen [2011] HCA 13; 243 CLR 400 where their Honours said: "The task of the Court of Criminal Appeal 11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." ... 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." ... 20 The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task. The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence. ... 21 To determine satisfactorily the applicant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged." 72The applicant submitted that having regard to the uncertainty of the evidence of the four forensic experts regarding what might have caused the death of the deceased, the jury ought to have had a reasonable doubt as to his guilt. The applicant submitted that the Crown was not able to put to the jury a rational and compelling case as to how the deceased was intentionally harmed by the applicant resulting in his death. 73The applicant submitted that the issue to be decided in the appeal was not whether there was evidence upon which he could have been convicted, but whether or not the evidence had sufficient cogency or probative force such that the jury could have been satisfied beyond reasonable doubt of his guilt. The applicant submitted that the crucial question was whether the jury could be satisfied beyond reasonable doubt that it was an act or acts on his part that caused Mr Guzetti's death. The applicant submitted that it was not open to the jury to be so satisfied because of the medical evidence. 74He submitted that the medical evidence was at best equivocal as to the cause of death. Dr Botterill could not say with certainty what killed the deceased but thought it was most likely a combination of the head and neck injuries. Dr Rodriguez was able to say that there was evidence of blunt force head injury and there was a small amount of haemorrhage and bruising at the front of the brain. He was not able to say with certainty that it was the brain injury which had killed the deceased. Professor Duflou's opinion was that the head injury was the cause of death but he was not able to describe the mechanism. Professor Hilton was not prepared to say what was the cause of death but could not rule out a heart attack. Both Professors Duflou and Hilton rejected strangulation or attempted strangulation as a cause of death. The applicant submitted that with the medical evidence in that state, it was not open to the jury to be satisfied beyond reasonable doubt that he had caused the deceased's death. 75The applicant submitted that an important element of the Crown case was that he had used the part of the juicer which was found near the deceased as a weapon against the deceased. He submitted that in those circumstances, one would have expected there to be quantities of the deceased's blood on the juicer. He noted that in this case, there was no evidence of human blood on that part of the juicer and in particular, there was no evidence of the deceased's blood on the juicer. He submitted that this fact, which was highlighted by the trial judge, constituted an important gap in the Crown case. 76The applicant submitted that by reference to every aspect of the Crown case, there was an explanation consistent with his innocence. The blood smear on the lower part of the balustrade was according to Professor Duflou consistent with part of the deceased's upper torso coming in contact with it. He submitted that the blood spatter on both sides of the door jamb and on the wall beyond it was equally consistent with a fall as not. In that regard, he noted that there was no expert evidence as to the origin of that blood spatter. The applicant submitted that there was no certainty as to the final resting place of the deceased's body, given that it had clearly been moved so as to enable a pillow to be placed under the head. He submitted that a fall down the stairs could have occurred whilst the deceased was ascending the stairs or descending the stairs. 77The applicant submitted that the bruising and injuries observed on the neck and upper chest could be explained by inexpert, vigorous attempts to resuscitate the deceased. The applicant submitted that there was a further difficulty in relation to the bruising to the neck and chest in that the date when the bruises were incurred could not be established with any certainty. He submitted that the evidence was that the bruising could have occurred at any time within 24 hours of the deceased's death. He submitted that although the deceased's DNA was found on the juicer, his was not, and it could not be ascertained from what part of the body the deceased's DNA had come, or how it had come to be present on the juicer. 78The applicant submitted that the evidence of Ms Cunney was unreliable and had been shown to be so at trial. The unreliability emerged from the changes in her testimony, between the first trial and this trial. The applicant submitted that her evidence on earlier occasions referred to the deceased singing and made no mention of "crying out". The applicant also submitted that it was common ground that his relationship with her was not particularly good. 79He submitted that the statements which he made to police and others to the effect that "we had a fight" were equivocal and were equally consistent with a verbal argument as with a physical confrontation. 80While it is true that the defence could point to an explanation consistent with innocence in respect of each circumstance relied upon by the Crown, that does not mean that it was not open to the jury to be satisfied beyond reasonable doubt as to the applicant's guilt. The Crown case was a circumstantial one. It relied upon a number of circumstances to establish beyond reasonable doubt that the only rational inference from the evidence was that the applicant, by a dangerous and unlawful act, caused the death of the deceased. 81It follows that each piece of evidence in the Crown case should not be looked at in isolation. Rather, the total effect of the evidence relied upon by the Crown needs to be considered. 82The Crown case was that the applicant lost his temper with the deceased during a verbal disagreement and hit him with a metallic juicer bowl several times causing him to fall over, hit his head, receive brain damage and die. The Crown submitted that the applicant hit him in the chest with the juicer. As to whether the applicant also tried to strangle the deceased was not a necessary part of the Crown case. The deceased had a laceration on his chin, and it was the Crown case that the applicant had struck him more than once in that area causing a more complex wound and blood to spatter behind him. The deceased's injuries were set out in the series of photographs in exhibit M and in the diagram drawn by Dr Botterill (exhibit N). 83It was necessary that the Crown case exclude the possibility that the deceased fell down the stairs. Unless the Crown did so, there was always a scenario consistent with innocence which could explain the deceased's death without intervention on the part of the applicant. 84In my opinion, the evidence did exclude falling down the stairs (whether the deceased was ascending or descending) as a cause of his death. Dr Rodriguez did not express an opinion. Professor Hilton was doubtful but was not prepared to exclude the possibility. Dr Botterill and Professor Duflou were definite that a fall down the stairs, be it from the intermediate landing or from the top, was unlikely. Dr Botterill was of the opinion that such a fall could not explain the distribution of injuries on the deceased (see [33] hereof). Professor Duflou gave evidence to similar effect (see [61] hereof). 85The applicant sought to meet that issue by adducing evidence that the bruising to the upper chest and neck could have been produced by inexpert attempts at resuscitation (see [43] and [62] hereof). That explanation for the bruising is not borne out by the evidence. The only persons identified as attempting resuscitation were one of the ambulance officers and Senior Constable Simpkins. Both were experienced in that procedure and there was no suggestion that either one of them carried it out incorrectly. The evidence of Dr Botterill and Professor Duflou on this subject makes it clear that if the bruising to the chest and neck was caused as a result of inexpert attempts at resuscitation, those attempts were very inexpert indeed. I accept that this defence theory is quite inconsistent with the expected expertise of an ambulance officer and the apparent expertise of Constable Simpkins (T.63.29). 86The only evidence on the subject of what injuries one would have expected to have seen had the deceased fallen down the stairs, came from Professor Duflou when he agreed that had a fall down the stairs occurred, there would have been more bruising to the legs or arms and those parts of the body that would come into contact with a hard object (T.358.17). 87Once the Crown excluded a fall down the stairs as a cause of the deceased's death the persuasive force of the Crown's circumstantial case became much greater. It matters not that the precise mechanism of the cause of death cannot be identified if there was general agreement (except for Professor Hilton) that a blow to the head was the likely cause. This is the effect of the opinions of Dr Botterill, Professor Duflou and Dr Rodriguez. That being so, it was open to the jury to conclude beyond reasonable doubt that some application of force, other than a fall down the stairs, caused the deceased to fall (probably backwards) so as to bring about the head and brain injury. 88While there may be some difficulties with the evidence of Ms Cunney, its essential effect is borne out by other evidence. The effect of her evidence was that she heard a noise, like a shelf with pots and pans falling, and then the deceased singing and then about ten minutes later, she heard the applicant screaming and crying. When police arrived at the premises, they found the chipped plaster and part of the juicer consistent with it being thrown against the kitchen wall at some earlier point in time. The piece of the juicer found near the deceased's body is consistent with that scenario. 89There are also the statements by the applicant when making the triple 0 call, when inside the caged vehicle and at the police station. In the triple 0 call, the applicant was crying and said "I have a fight with my friend and my friend dead". When placed in the caged vehicle and asked what happened, the applicant said "we had a fight". At the police station the applicant told Mr Carter "we had an argument, we had an argument - I was making carrot juice with juicer, Mario kept at me". Later at the police station, he told Detective Sergeant Hamill "I don't remember. We have breakfast. Mario argue with me. He criticise me a lot. Oh Phillip, then my head started spinning but I don't know what happened". 90What is clear from those statements is that at the very least, the deceased and the applicant had a verbal argument before the deceased's death. An important issue for the jury was whether that verbal argument had escalated into a physical dispute. Having carefully examined the medical evidence, in particular the location of bruising, grazes and cuts, and having excluded a fall down the stairs, I have concluded that it was open to the jury to find beyond reasonable doubt that the verbal dispute escalated into a physical dispute. That is certainly consistent with what the applicant said in his triple 0 call and in the caged vehicle. 91As the Crown submitted in the appeal, Dr Botterill identified 16 different injuries in his evidence. Each injury was identified by reference to a photograph, or to a diagram prepared by him. Of those 16 injuries, 14 were capable of having been caused at or about the time of the deceased's death. Photograph 3 in exhibit M shows injuries 1 - 6. The undisputed evidence of Dr Botterill was that these 6 injuries were capable of having been caused by the juicer. Injury 7 (photograph 23 in exhibit M) was a graze to the back of the head. This was consistent with the deceased falling backwards and striking either the floor or the wall with the back of his head. 92Injury 8, which was depicted in photographs 27, 28 and 29 of exhibit M, shows the injuries to the chest in the form of cuts and abrasions which all the experts said were consistent with being hit by the juicer. 93Injuries 9 and 10 were not shown in photographs but on the diagram prepared by Dr Botterill and comprised swelling and bruising to the back of the torso on the left side. Injury 11 is a graze on the back of the arm, shown in photograph 12 in exhibit M. Injury 12 comprised bruising on the back of the knuckles, shown in photograph 4. Injuries 13 and 14 shown in photograph 5 comprised grazes on the back of the hand. While it was common ground that injuries 15 and 16 could not relate to anything which occurred on 7 April, deep bruising was shown at four locations (AD1-AD4) on the diagram - three on the back of the right arm and one at the elbow level of the left arm. 94When one has regard not just to the brain and head injury, but all of the injuries capable of being attributed to 7 April, the force of the conclusions of Professor Duflou and Dr Botterill that a fall down the stairs could not have brought about these injuries is apparent. The extent and location of these injuries is fully consistent with the Crown case of an assault by the applicant on the deceased with the juicer causing the deceased to fall backwards and hit his head. It is difficult, if not impossible, to reconcile the extent and location of those injuries with a fall down the stairs or a fall backwards. Something more must have happened to have caused the full range of injuries. The Crown scenario of an assault by the applicant on the deceased is not only a reasonable surmise, it is on the evidence the only reasonable explanation. 95As well as the matters to which I have referred, there are other considerations on which the Crown relied. Some of these are included in the "seventeen circumstances" identified by the Crown at trial. While not all of these "circumstances" are of equal weight or particularly convincing, their total effect is persuasive. 96By way of background, although the relationship between the applicant and the deceased was generally good as the evidence of their friends suggested, there was clear evidence of a deterioration in the relationship not long before the deceased's death. The noises heard by Ms Cunney, the broken juicer and the damage to plaster in the kitchen, together with the applicant's admissions of there having been a "fight", make it clear that at the very least an argument took place on the morning of 7 April at about the time of the deceased's death. The delay between the deceased's death and the applicant making the triple 0 call, remains unexplained. While there was no expert evidence directed to the blood spatter, its presence on either side of the doorway and on the wall beyond the doorway, does not appear to be consistent with a fall down the stairs having occurred. 97In the course of reaching my conclusion, I have had to consider three significant challenges to the Crown case. The first is that no blood was found on the juicer. The overwhelming evidence was to the effect that had the juicer been used in the way postulated by the Crown, there should have been blood upon it. 98The explanation for why no blood was found when Ms Franco carried out her tests, can be seen in her evidence at T.273 (see [26] hereof). By the time she came to examine the juicer, the red substance which other persons had seen on it had disappeared and had been replaced with blue-green stains which she surmised came from the fingerprinting process. She said that in her experience the fingerprinting stain can cause difficulty when tests for the presence of blood are carried out. 99That provides an adequate explanation for why there was no blood found on the juicer. In that regard, it needs to be kept in mind that the juicer was found next to the deceased's body and there was evidence from Professors Duflou and Hilton and Dr Botterill that the injuries suffered by the deceased, in particular the complex injury to the chin, could have been caused by the juicer found near the body. There was also, of course, the presence of the deceased's DNA on the juicer and a fingerprint of the applicant. 100The defence challenged Dr Botterill's strangulation theory, i.e. that the applicant either strangled the deceased or attempted to do so. Dr Botterill himself had doubts about the theory and pointed out inconsistencies with it. Both Professors Duflou and Hilton rejected the theory and gave compelling reasons for their conclusions. It follows that the jury could not have been satisfied beyond a reasonable doubt that the applicant had strangled or attempted to strangle the deceased. 101That finding does not defeat the Crown case. There was evidence from Dr Botterill and from Professor Duflou to the effect that the bruising on the upper chest and neck could be explained by the deceased having been struck by the juicer. That explanation gains further force because of the unanimous opinion of the three pathologists that the injury to the chin was consistent with the deceased being struck by the juicer. Anatomically the location of the chin injury was very close to the bruising on the neck and upper chest. 102The defence challenged the Crown case on the basis that the Crown had not excluded the deceased having died of natural causes, i.e. because of his heart condition. The submission depended upon the evidence of Professor Hilton. When one properly reads Professor Hilton's evidence, the defence submission is not made out. 103Professor Hilton's primary position was that the cause of the deceased's death was obscure. He was unable to identify a specific cause of death. In explaining why he had reached that conclusion, Professor Hilton referred to the deceased's heart condition and said that it was possible that it could have caused his death. In other words, Professor Hilton was not prepared to exclude the heart condition as a possible cause of death. What Professor Hilton did not say was that in his opinion the deceased's heart condition was a likely cause of death. 104The evidence of Professor Hilton has to be assessed against that of Professor Duflou and Dr Botterill. Both Dr Botterill and Professor Duflou were not prepared to conclude that the deceased's heart condition was a likely cause of his death. On the contrary, both of them rejected that as a likely cause of death. If anything, the rejection of that proposition by Professor Duflou was even more decisive than that of Dr Botterill (see [40] and [53] hereof). Of course, Professor Hilton's reservations concerning the deceased's heart condition did not take into account the extensive nature of his injuries which went beyond those likely to be caused by the deceased having had a heart attack and then having fallen backwards. 105On that state of the evidence, it was well open to the jury to be satisfied beyond reasonable doubt that the deceased's heart condition had not caused his death. 106It follows from the above analysis of all of the evidence that the jury was entitled to find beyond reasonable doubt that it was an act or acts of the applicant which caused the death of the deceased, that such act or acts were deliberate and that the act or acts were unlawful. I would grant leave to the applicant to appeal against conviction but would dismiss the appeal. Application for leave to appeal against sentence 107The sentence proceedings took place before Price J on 8 March 2013 and his Honour imposed sentence on 28 March 2013. In doing so, his Honour had regard to the maximum penalty for the offence of manslaughter being imprisonment for 25 years. 108His Honour made findings in accordance with the jury's verdict. No useful purpose would be served by setting out again those findings which were relatively uncontroversial, i.e. the nature of the relationship between the applicant and the deceased, what the neighbours heard, what the ambulance officers and the police observed upon their arrival and what the applicant said on the four occasions that he made any comment about what had happened. His Honour reviewed the medical evidence and that review was in accordance with the summary of medical evidence set out earlier in these reasons. 109His Honour set out his conclusion as follows: "34 By their verdict, the jury rejected as a reasonable possibility that the deceased's death was not caused by an act of the offender but by a fall down the stairs, or because of a heart attack or other cardiac event, or by any other cause. The jury was satisfied beyond reasonable doubt that following an argument with the deceased, when the offender had been making carrot juice, the offender in anger attacked him and caused his death and that the offender's acts were deliberate, unlawful, and dangerous." 110His Honour then reviewed the nature of the offence of manslaughter, concluding by reference to R v Blacklidge (unreported, NSWCCA 12 December 1995) that "the starting point in the present sentencing exercise, as in all offences of manslaughter, is that the life of Mario Guzetti has been unlawfully taken". 111His Honour made the following findings: "38 I am satisfied beyond reasonable doubt that the offender struck the deceased with the juicer container in the area of the chin and mouth causing him to fall onto the back of his head causing brain injury and death. Consistent with the jury's verdict, there is no other rational explanation for the wound to the deceased's chin. 39 ... I am satisfied beyond reasonable doubt that the offender struck the deceased with the juicer container several times to the chest area, causing the multiple curved and relatively straight grazed areas of bruising identified by Dr Botterill as injury number 8. 40 The Crown has not established to the criminal standard that the offender attempted to strangle the deceased as there was absence of injury to the bony structures of the neck and of petechial haemorrhages. I do not find that the offender depressed the deceased's vagal nerve in the carotid artery causing vagal inhibition. 41 This was a violent attack carried out in anger by the offender upon his 71 year old partner and exposed the deceased to a high risk of serious injury. It is an objectively serious offence of manslaughter." 112His Honour noted that the applicant had neither expressed remorse nor shown contrition for the offence so that his Honour was not prepared to make any allowance in mitigation for those matters. His Honour took into account as a mitigating factor that the applicant did not have any previous convictions. 113Other elements of the applicant's subjective case noted by his Honour were that he was aged 46 when the offence was committed and was 52 at the time of sentence. He had a challenging childhood in China and Hong Kong but had worked hard to establish himself in Australia. His Honour accepted that he was a person of good character, was unlikely to re-offend and had good prospects of rehabilitation. As a result, his Honour found that personal deterrence did not have a significant role to play in his sentence. His Honour noted as a mitigating factor that the offence was not planned but was committed impulsively following an argument. 114The applicant did not give evidence during the sentence proceedings so that his Honour relied upon the history provided to Dr Adams, a psychiatrist, which was set out in a report dated 5 March 2013. The applicant was born in Shenzhen China and attended school between age 8 and 14. Following his mother's death when he was aged 14, he went to Hong Kong to join his father whom he had not previously seen. His father wanted him to be a mechanic which he did for approximately two weeks, which angered his father, causing the applicant to run away. He began an apprenticeship in ivory carving, studied English at night and supported himself until he moved to New Zealand in 1984. He was employed carving jade for approximately 4 years in New Zealand before moving to Sydney. 115The applicant was employed by different jewellery companies in Sydney before beginning his own jewellery business in 1994. He continued to run his own business until he was assaulted and stabbed on 11 June 2005. This resulted in the loss of his left eye, nerve damage and back pain. The applicant told Dr Adams that his mental health had deteriorated following that assault so that he was depressed and antidepressant medication was prescribed. He said that his mental health improved after six to seven months which he attributed to the deceased's support. He had not been able to return to paid employment since the assault and was in receipt of a disability support pension. 116The applicant told Dr Adams that his mental health deteriorated following the deceased's death and being charged. He described a marked fluctuation of mood over the preceding five years, with periods lasting several months during which he felt "depressed ... terrible". He linked his worst periods of mood to the periods leading up to and "during the two trials he went through". He began to "self medicate" with increasing use of alcohol and illicit substances but after six months he used alcohol less frequently. He described how on the two occasions that he was acquitted, his mood improved briefly but that his emotional state rapidly deteriorated when he learned of the appeals. He described his level of functioning over the years as living "day by day". 117Dr Adams expressed the opinion that the symptoms described by the applicant were consistent with recurrent episodes of major depression. Dr Adams found a nexus between his periods of low mood and depression and the legal proceedings. He opined that the offender would benefit from psychiatric review and follow up and that consideration should be given to the reintroduction of anti-depressant medication. 118His Honour noted that the applicant had been in custody until conditional bail with tri-weekly reporting conditions was granted on 7 August 2007. A further grant of conditional bail, with once weekly reporting conditions, was granted on 20 March 2012. 119His Honour found: "56 It is hardly surprising that the fluctuating outcomes of directed acquittals at trial and reversal upon appeal have had an adverse psychological effect on the offender. The offender has been left in uncertain suspense for almost six years. Furthermore, throughout much of this time, his liberty has been restricted by bail conditions. Notwithstanding the offender's pleas of not guilty, I do not think that the delay can be attributed to him. There are many cases that deal with delay, as a mitigating circumstance: see for example Hancock v R [2012] NSWCCA 200 [23]; R v Khanas (1999) 108 A Crim R 499; Mill v R (1988) 166 CLR 59, but it seems to me that the present circumstances are unique as the delay was associated with the emotional highs of two favourable trial outcomes and disappointment in the results of the appeals by the Crown to the Court of Criminal Appeal. However, it is important to observe that the Crown was not entirely successful on appeal, the verdict of not guilty to the most serious charge of murder being affirmed. Given the history of the proceedings and adverse psychological impact upon the offender, considerations of fairness call for leniency being extended to him, which I propose to reflect in a finding of special circumstances, justifying a variation between the non-parole period and the balance of the term of sentence. 57 I further find as special circumstances, his physical disability and need for psychiatric review and treatment." 120His Honour noted that sentencing statistics were of little assistance in relation to manslaughter offences, given the wide embrace of offending which the offence covered. His Honour noted that each case depended upon its own facts. 121As of the date of sentence, it was agreed that the applicant had spent a total of 7 months and 14 days in custody. Accordingly, his sentence was backdated to commence on 26 July 2012. As already indicated, the sentence imposed by his Honour was imprisonment for 8 years with a non-parole period of 4 years and 6 months, so that the earliest date of eligibility for parole was 25 January 2017. Ground of Appeal - The sentence imposed was manifestly excessive. 122The applicant did not challenge any of his Honour's findings of fact nor his Honour's application of principle. He submitted that in weighing the balance between the objective severity of the offence and the applicant's personal circumstances, his Honour had erred by imposing a sentence which was excessive. 123The applicant submitted that taking into account the protracted history of the criminal proceedings, the facts of the matter, his very favourable subjective case and the adverse impact of the delay on his mental health, the sentence was too severe. The applicant submitted that his Honour failed to properly implement his finding of mitigating factors, i.e. no record of previous convictions, person of good character, unlikely to re-offend, good prospects of rehabilitation and offence not planned but committed impulsively. The applicant submitted that despite his Honour's finding of delay and its effects on him, his Honour failed to give that finding sufficient weight when imposing sentence. Consideration 124The difficulty for the applicant in establishing this ground of appeal is that he acknowledges that his Honour took into account all relevant facts and principles. Nevertheless, he submits that his Honour failed to give those factors which favoured him sufficient weight so that the final result was a sentence which in all the circumstances was excessive. Submissions which assert that a sentencing judge failed to give adequate weight to matters which he or she took into account, have the inherent difficulty that from the outset they concede no actual error but are required to challenge the exercise of the sentencing discretion. 125In order to successfully challenge his Honour's exercise of the sentencing discretion, the applicant had to establish that the sentence was "unreasonable or plainly unjust" (Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). 126In Markarian the plurality (Gleeson CJ; Gummow, Hayne and Callinan JJ) said: "25 As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy". ... Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 127As has been repeatedly stated by this Court, and as was observed by his Honour in this case, manslaughter is an almost unique offence because of its protean character (Stephens v R [2009] NSWCCA 240; R v Forbes [2005] NSWCCA 377; 160 A Crim R 1). In R v Loveridge [2014] NSWCCA 120 Bathurst CJ (with whom Johnson and R A Hulme JJ agreed) said at [226] - [227]: "226 There is, in truth, no range of sentences for offences of manslaughter which may be said to have a single common component relating to the mechanism of death (such as the victim's head striking the ground after a blow to the head). To the same effect, there is no range of sentences for manslaughter offences said to have been committed by use of a knife or a rock or some other implement. 227 The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter. Gleeson CJ made this clear in R v Blacklidge (see [193] above), in a passage cited regularly in cases such as R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at 530 [40]." 128As has also been said on a number of occasions, the exercise of the sentencing discretion is not capable of mathematical precision. At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case. In particular, there is no right or wrong sentence. What a sentencing judge has to do is weigh all the circumstances and make a judgment as to what is the appropriate sentence. This is what his Honour did on this occasion. 129The sentence imposed by his Honour was well within the range available to him, given his Honour's findings as to the seriousness of the offending and the circumstances in which it occurred, but also having regard to the applicant's strong subjective case. What the applicant has failed to establish is that error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 has occurred or that otherwise the sentence is unreasonable or plainly unjust. In those circumstances, this ground of appeal has not been made out. 130The orders which I propose in relation to the application for leave to appeal against sentence is that leave be granted but that the appeal be dismissed. 131FULLERTON J: I have had the advantage of reading the judgment of Hoeben CJ at CL, and the close consideration his Honour has given to the question whether, upon the whole of the evidence at the appellant's trial, it was open to the jury to convict him of the manslaughter of his partner Mario Guzzetti. 132After undertaking my own assessment of the evidence, and the inferences that may legitimately be drawn from the facts established by that evidence, I have come to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. In my view, the Crown did not exclude the reasonable possibility that the deceased died from a head injury sustained in circumstances causally unrelated to any act of the appellant that was both unlawful and dangerous. 133This is not a case where the doubt I have as to the appellant's guilt is one that might have been resolved by the jury's advantage in and seeing and hearing the witnesses or the consideration of the physical evidence (see M v R [1994] HCA 63; 181 CLR 487). Were that the case I might have concluded that the appeal should be dismissed on the basis that no miscarriage of justice has occurred. 134His Honour's comprehensive summary of the evidence and the competing cases put at trial relieves me of having to refer at length to the evidence or to restate counsel's arguments, other than what is necessary in order to make it clear the basis upon which I propose that the verdict be quashed and a verdict of acquittal entered. 135The transcript of the evidence at trial and the physical evidence upon which the Crown relied in proof of the appellant's guilt was available to be considered on the appeal. This included a plan of the house where the deceased and the appellant lived as a couple and a large number of photographs of the house. In addition, this Court attended a view of the premises in order that we might each be informed of what the jury might have learnt about the arrangement of the house since, under s 54 of the Evidence Act 1995 (NSW), the view became evidence in the trial. 136As the premises had been preserved by police as a crime scene, the view also showed the state the premises were in when police arrived where they found the appellant cradling the head of the deceased on a blood stained pillow (and rocking it from side to side) as he lay prone at the bottom of a set of stairs leading to the upstairs bedroom. As the appellant did not give evidence, the extent to which the deceased's body had been moved by him in the process of arranging his head on the pillow (which, it appeared, had been retrieved by the appellant from the upstairs bedroom), was not established by the evidence. 137The view of the premises assisted me in appreciating both the confines of the floor space at the base of the stairs relative to the northern (party) wall of the house and the alignment of the uncarpeted wooden stairs directly opposite that wall. I also gained an appreciation of the proximity of the deceased's body, lying generally west to east in that confined floorspace, to a number of features of the physical evidence relied upon by the Crown as part of the Crown case theory. Those features included the following: (1)The component of the metal juicer alleged by the Crown to be the weapon wielded by the appellant in series of blows directed at the deceased's face (the unlawful and dangerous act) as a consequence of which he fell sustaining a head injury (the cause of death) on the floor alongside the deceased; (2)The kitchen where, on the Crown case, an argument between the deceased and the appellant erupted into physical violence with the appellant throwing the juicer under such force that it hit the wall above the open kitchen doorway causing brick and plaster to shatter. Carrot pulp was seen on the wall. The juicer was found on the floor beyond that open doorway; and (3)The jamb of the open doorway at the base of the stairs which opened into the hallway/living room at the deceased's head and where what the crime scene officer described a "smudge of [the deceased's] blood" was located on both the northern and southern sides of the jamb; and (4)The northern brick wall of the living room immediately to the west of that doorway (the party wall to the house where Ms Cunney lived) where the crime scene officer described finding a "fine splatter of blood". Photographs showed that the "splatter" was comprised of five discrete drops of blood. It was the deceased's blood in each deposit. The crime scene officer described "the fine splatter of blood" as coming from a "low angle". 138The photographs tendered by the Crown at trial included a photograph of where the juicer was found and the condition in which it was found. The jury were invited by the Crown to find that after the appellant threw the juicer in an outburst of "anger and rage" either at the kitchen wall or which hit the wall above the open kitchen door, he then picked up the juicer and, using it as a weapon, wielded it at the deceased (who, it must be assumed on the Crown case, was at that time at or near the base of the stairs) causing a laceration on his chin as a consequence of which he fell against the northern wall opposite the stairs and then to the floor sustaining a head injury which caused his death. It was the Crown case that he then discarded the juicer where it was found by police beside the deceased's body. 139The Crown sought to account for the spatter of blood on the hallway/living room wall (in particular, its low angle) by the appellant striking the deceased in the chin a second time at the site of the first injury causing the complex laceration identified by Dr Botterill on autopsy, and that he did so whilst the deceased was on the ground, having struck the back of his head under the force of the first blow. 140This aspect of the Crown case theory was in reliance on the evidence of the crime scene officer that blood only forms a spatter pattern when an injury has already caused bleeding. Officer Griffin gave the following evidence: Q. Are you able to make any comment about the blood spatter on the wall near to the head of the deceased? A. Make comments as to? Q. How it got there? A. There are a number of ways blood can be deposited on to a vertical surface. In this instance to get the terminology of what we call spatter, to get a spatter-type incident there needs to be already a bleeding injury. Blood needs to be in an area that comes into force or contact to then, in layman's terms, splash that blood on to another receiving surface. So basically, if I hit myself here now on to an unbloodied area there would be no spatter as such. That first hit or injury would cause the bleeding, a subsequent strike would then cause the blood to be projected forward into a spatter-like manner. Q. All right. So if one is already bleeding and they are struck again in the same area, where there is bleeding what would cause blood spatter, is that right? A. Yes, it does. Q. And in relation to where the head of the deceased was is the blood staining on the wall of any significance as to where he may have been struck to cause that blood spatter, if at all? A. Well, certainly the, the blood that was on the wall in the loungeroom which is marked with those four blood squares, okay? Amongst that there are indications that it did come from a low angle to get deposited on that wall. 141It was also the Crown case that other injuries identified at autopsy, in particular what Dr Botterill described as "multiple curved and relatively straight grazed area of bruising to the deceased's upper chest", were also inflicted by the appellant using the juicer as a weapon to beat or strike the deceased when he was on the floor. The Crown also alleged that the appellant to strangle the deceased while he was on the floor. 142There was no evidence of any blood staining to the underside of the deceased's clothing proximate to the area where the grazed bruises were noted, or to his outer clothing suggestive of him being struck multiple times with what, on the Crown case, must have been by that time a bloodied weapon. This, coupled with the fact that it has not been shown that there was evidence of any blood on the juicer, in my view, very considerably weakened a central feature of the Crown's circumstantial evidence case theory. For reasons which I will come to presently, the fact that there was no blood on the juicer (despite the Crown examining a number of witnesses on the assumption that there was blood on it when it was located by crime scene officers) also undermines the Crown case that it was used by the appellant as a weapon to strike multiple blows to the deceased's chin. 143The appellant's attempts at strangulation were said by the Crown to be the explanation for bruising on the deceased's neck. Although Dr Botterill suggested strangulation or attempted strangulation as a contributing cause of death, I agree with Hoeben CJ at CL at [100] that both Dr Duflou and Professor Hilton rejected that theory, and gave compelling reasons for doing so, such that jury could not have been satisfied that the appellant strangled or attempted to strangle the deceased. At [101] Hoeben CJ at CL did not regard the rejection of the suggestion of strangulation as an explanation for the injuries to the neck as undermining the jury verdict. It has contributed to the doubt I have as to the appellant's guilt. 144While I accept, as Hoeben CJ at CL points out, that Dr Botterill and Dr Duflou gave evidence that the grazed areas of bruising to the deceased's chest and his neck could be explained by being struck with the juicer, and that both pathologists and Professor Hilton considered the injury to the deceased's chin was consistent with him being struck by the juicer, in contrast to the view his Honour expressed at [101] I do not regard the anatomical proximity of those sites of injury as lending any weight to the question whether they were likely to have been caused by an assault with the juicer as a weapon, even less that the jury could have been satisfied of that assault as both unlawful and dangerous beyond reasonable doubt. 145Neither do I assess Ms Cunney's evidence as providing support for the Crown case theory that the juicer was used as a weapon. On the Crown case it was the deceased "crying out in pain or surprise or shock" at being assaulted that Ms Cunney mistakenly thought was the deceased singing opera. According to her evidence, this was not long after hearing what she described "as shelf falling with pots and pans on it and lids rolling on the floor, lids or a lid, one or several". The Crown alleged that what Ms Cunney heard was the juicer being thrown at the kitchen wall by the appellant (and rolling as it hit the floor) in an outburst of rage at the culmination of a verbal argument. This was said by the Crown to be consistent with the various accounts the appellant gave to police, and to a friend of his, when spoken to at the police station, to the effect that he had a fight or an argument with the deceased while the appellant was making carrot juice with the juicer. It was the Crown case, of course, that the appellant had not given a complete account of the morning events or "the fight" with his partner since he made no admissions to assaulting the deceased in the fight and denied being responsible for his death. 146Ms Cunney said she heard the deceased singing out (or singing) at about 8.15 am. She gave no evidence of hearing raised voices before hearing what she thought to be a shelf falling or any sound consistent with a physical fight thereafter. The deceased's singing lasted for a period of what she estimated to be ten seconds after which there was silence for about ten minutes before she heard the appellant's loud wailing for ten to fifteen minutes before the ambulance arrived. 147The Crown accounted for the ten minute silence after Ms Cunney heard the deceased singing by the deceased having either lost consciousness after falling heavily to the floor, sustaining the contrecoup brain injury and the bruising and abrasion at the back of his head. The Crown did not seek to account for the further time that must have elapsed before the appellant telephoned the 000 operator in tears at 9.12 am. There was no evidence to support any inference that the appellant had cleaned up or attempted to clean up any blood or to conceal in anyway what had occurred. To the contrary. The metal juicer component (which on the Crown case had been used as a weapon to assault the deceased and to have caused the complex wound to his chin) was on the floor alongside the deceased's legs and his blood, albeit small deposits of it, were on the northern wall, the door jamb and the balustrade. 148The colour photograph of the juicer had, what appeared to crime scene officers, to be a liquid stain, reddish in colour, over its inner surface which tested positive for blood on a preliminary or screening test. It was not tested to confirm that the red stain was blood the juicer was subjected to fingerprint analysis. 149By the time the DNA specialist, Ms Franco, received the juicer the reddish coloured stain had been obliterated or masked by a blue/green stain, which Ms Franco understood to be the result of the fingerprinting process. Although she identified the deceased's DNA in two discrete areas on the juicer (including on the spout) she could not say that the deceased's DNA was in blood, tissue or some other body secretion. 150Despite the evidence being to the conclusive effect that the deceased's blood was not detected on the juicer (a position well known to the Crown when it opened its case), the Crown was permitted, without objection, to lead evidence from the crime scene officer, and from Dr Botterill and Dr Duflou on the assumption that the reddish stain on the juicer was both blood and the blood of the deceased. Although the trial judge ultimately prevented the Crown prosecutor in his closing address from inviting the jury to draw the inference that the deceased's blood was on the juicer, but had been obliterated by forensic testing processes, and although his Honour directed the jury, in categorical terms, that the evidence did not enable them to draw the inference that the red stain was the blood of the deceased, by that time in the trial, the photographs of the juicer with the red staining on it had featured prominently in the evidence of a number of Crown witnesses. 151The five photographs showing different angle views of the juicer with the red liquid stain were shown to the crime scene officer early in the Crown case. He was asked the following questions: Q. And you have seen the stills that have been obtained from that? A. Yes, I have. Q. And they are part of the rear part of that exhibit. If you go to the photographs that are contained after the plan you will see five photographs marked 1 to 5 of the same metal implement. Do you see that? A. Yes. Q. And photograph 1 is a view looking down, photograph 2 from much the same angle is a close-up of that? A. Yes. Q. And both photograph 1 and photograph 2 show what appears to be blood staining? A. Yes. Q. Photograph 3 from another angle shows this blood staining, does it not? A. Yes. Q. Photograph 4, which is to the side of the juicer, shows the blood staining which is quite apparent there, does it not? A. Yes. Q. And photograph 5 also shows the blood staining from the position of the floor; is that right? A. Yes. Q. Now, in relation to this particular implement, did you look under the implement to see if there was any residual or blood staining under the implement? A. Yes, I did. Q. And what was the result? A. There was nothing on the floorboards underneath the item. Q. So no drips of blood, no bring of blood on the floor? A. No, there was not. [Emphasis added] 152Dr Botterill gave evidence that he had seen the photographs of the juicer at T226 line 25 -45. He was asked by the Crown Prosecutor: Q. And you have seen photographs of that with what appear to be red staining which may well be blood, is that right? A. I've seen those images and yes, it may be blood. Q. Now, in relation to you being told doctor that on the spout of that juicer bowl there has been found the DNA of the deceased? A. I may have been told that but I don't recall that. Q. All right. What I want to ask you doctor, the wound that you saw to this man's chin, is that consistent with being struck by the spout of this juicer? A. Yes. There's, the features of the wound to the chin are not specific enough to enable me to say it must necessarily have been that but that is a possible explanation. Q. It is a complex would you would describe it as, would you not? A. Yes, yes. Q. And would you agree that the wound itself may have been the result of one or more than one blow to the same area? A. Yes. [Emphasis added] 153In the cross-examination of Dr Duflou the Crown showed the same five photographs: CROWN PROSECUTOR: I'm referring to, I think there are five photographs at the end of exhibit A which depict the juicer bowl, your Honour. Q. Do you see those? A. Yes, I do. Q. You will see on those there appears to be a considerable amount of a reddish substance, does there not? A. Yes, there does appear to be. Q. That would be a substance from your observation that would be consistent with blood, would it not? A. It certainly has that appearance, yes. Q. If that could be returned thank you, and if exhibit D could be returned. Now, given that there was blood spatter and given your evidence in relation to the cause perhaps of that blood spatter and given that there is blood found on that implement -- OBJECTION. QUESTION WITHDRAWN. HIS HONOUR: Members of the jury, disregard that. You heard the evidence from Miss Franco that no blood was detected on the juicer. Please bear that in mind, members of the jury. Q. Yes. Doctor in this case, just to explain it to you, it went to fingerprints, they put it under some considerable testing there and then it went to the DAL for DNA testing. But coming back, what appears to be blood is on that juicer, would you agree? A. Well, photographically it appears. Q. Yes, that is all I ask you. And we know for a fact there is blood spatter found behind the man's head, take that as a fact. [Emphasis added] 154Absent any evidence that the deceased's blood was on the juicer, or any evidence from which the presence of his blood might be inferred, the views of the various witnesses extracted above that the sustaining looked like blood must be disregarded. (For my part, I make the further observation that this line of questioning was irrelevant and dangerously prejudicial and should have been the subject of objection of defence counsel.) 155The photographs of the juicer also remained with the jury as an exhibit during their deliberations. There was no application from counsel that they be withdrawn as having no relevance on the question whether the Crown had proved guilt beyond reasonable doubt. There were a number of other photographs of the juicer, in situ, which were of continuing relevance in the jury deliberations. 156I agree with the observations of Hoeben CJ at CL at [97] that the absence of any of the deceased's blood on the juicer, in circumstances where the overwhelming evidence was to the effect that if the juicer had been used in the way contended for by the Crown his blood should have been blood on it, presents what his Honour described as a "significant challenge" to the Crown. However to the extent that in [99] his Honour regarded the disappearance of the red stain, and Ms Franco's evidence as an explanation for why there was no blood that was detected, I must disagree. The fact that the red stain which had tested presumptively for blood had disappeared by the time it was submitted for DNA testing, does not permit a finding that what was once there was in fact blood, or that because the process of fingerprinting can create difficulties when tests are later undertaken to confirm the presence of blood, that provides an explanation for why no blood was found on the juicer. To reason in that way, proceeds on the false premise that there was blood on the juicer, whether in the form of the reddish stain or otherwise, and that it was obliterated. 157Deprived of the submission that the jury could infer there was blood on the juicer, the case ultimately left by the Crown was that the deceased's DNA in three deposits on the juicer, including the under side of the spout, supported the Crown case that it was used by the appellant as a weapon to strike him about the face and body in the various ways contended for. As was made clear in Ms Franco's evidence, the presence of the deceased's DNA on an item he may have handled that morning, or on some other occasion, would be likely to remain on the item unless and until the place from where the deposit was extracted was washed or wiped. On the Crown case the juicer had been used the morning the deceased died and that a fight or an argument erupted in the process of juice being made. There is nothing in the evidence to exclude the reasonable possibility that traces the deceased's DNA were deposited on the juicer quite independently of the Crown case theory that he was struck with it. 158In these circumstances, I am not persuaded that the DNA evidence is of such preponderant weight that it overcomes the absence of blood on the juicer were it used, as the Crown submitted, to strike or beat the deceased causing the lacerations to his chin. The fact that there was no blood under the juicer or the floor around where it was on the Crown case discarded by the appellant after he had repeatedly struck the deceased with it, is also significant. The fact that the appellant's index finger was on the juicer was intractably neutral. There was no evidence to suggest that a single fingerprint in the position where it was identified simulated the holding of the juicer as a weapon. 159I also regard the fact that the juicer was on the floor next to the deceased as neutral at best (cf Hoeben CJ at CL at [99]). I accept, of course, that the juicer was thrown at the kitchen wall, but it does not appear to me to be beyond the realms of reasonable possibility that it then rolled or was kicked by the deceased or by the appellant as one or both of them left the kitchen after the argument where it remained until found by police. 160The doubts I have as to the implication of the juicer in the death of the deceased highlight what I am satisfied was the Crown's failure to exclude a reasonable hypothesis for the death of the deceased consistent with the innocence of the appellant. 161Despite there being some persisting question in the evidence of the pathologists as to the precise cause of death, I am of the view that the jury were entitled to find beyond reasonable doubt that the deceased died as a result of a head injury. The question that then presents, and starkly, is whether the Crown has excluded, as a reasonable possibility, that the deceased fell striking his head either in the course of a fall, or when his head struck the ground on falling, and that he sustained the injury to his chin in that process. 162Of the seventeen circumstances relied upon by the Crown in proof of its case that it was the deliberate act or act of with the appellant which caused the head injury from which he died, only the fifteenth and seventeenth circumstances deal with the evidence of Dr Botterill and Dr Rodriguez. Particular reliance was placed at trial and on the appeal on the nature and spread of injuries identified at autopsy which each of the pathologists found difficulty accounting for when invited to consider whether the deceased's fatal head injury might have been the result of a fall. 163In particular, each of the expert pathologists and Dr Rodriguez, a neuropathologist, were invited to consider whether a fall backwards, as the deceased either mounted the stairs or after he had mounted some or all of the stairs, could account for the head injury. 164The injury to the back of the deceased's head (numbered 7 by Dr Botterill during the course of the autopsy) was described as a 1 centimetre area of shallow grazing on the left side of the back of the head. He described it as "related to movement of that surface against some other surface ... which it did not have a sharp edge (T232). He also identified bruising associated with the graze on the outer and inner skin of the scalp (T233), and bruising towards the back of the head on both sides (T240). There was no fracture of the skull. Dr Botterill went on to summarise what Dr Rodriguez observed upon his examination of the brain in the following terms: ... a release of blood over the surfaces all the bottom and the front of the right side of the brain and over the side and the top side of the left side of the brain that are due to trauma causing damage to small blood vessels within and over the brain surface. (T241) 165Ultimately when asked by the Crown whether a fall onto the back of the head would be likely to cause the complex of injuries to the back of the head and to the brain, Dr Botterill agreed that would be the case (T243). 166Although Dr Botterill he went on to comment that the injury to the deceased's chin may possibly be explained by the deceased hitting one of the bollards on the stairs, given the curvature of the bollard and its location on the stairs, he considered the juicer was more likely to have caused that injury. 167It is clear from the question framed by the Crown that Dr Botterill's opinion was premised on the assumption that the juicer was used as a weapon, an assumption that I am concerned that Dr Botterill treated uncritically given that he had been invited by the Crown to proceed on the basis that there was blood on the juicer which was contrary to the fact (see [22]). 168Since I am of the firm view that the absence of blood on the juicer renders that explanation improbable, it follows that the probabilities of there being another explanation for that injury are increased, with the bollard on the staircase being one such mechanism. 169It is in that context that the following evidence from Dr Botterill is significant: Q. In relation to the injury to the chin you may well be asked whether that is consistent with hitting one of the bollards on the stairs, one of the rounded bollards on the stairs. Would that be likely to cause this complex injury to the chin? A. It is a possible explanation partly because of the curvature and the location it is still possible even hitting something such as a rounded object such as that may result in a tear such as that. Q. Is it likely? A. It is possible. I can't more [sic] specific than that. ... Q. Let's go back to the scenario of a fall down the stairs; if the accused did fall down the stairs and if he did strike the bollard I referred to or indeed the brick wall would you expect that shortly after that there would be bleeding? A. It would depend on which specific injuries we are talking about. The large injury over the right side of the chin you would expect bleeding but not necessarily immediately. If there were a second contact on that area yes you would definitely expect to see blood at that point. The extent of that laceration however is such that you would expect to have some transfer of skin or other tissue to that contact point even in the absence of blood. Q. Let's say if one fell down the stairs and hit their chin against the wall or indeed the balustrade or a bollard and then hit their head again you would expect there to be some transfer of tissue or blood would you not? A. Certainly from the open wound on the chin, yes. Some of the abrasions may leave some material present. The bruises may not necessarily. 170It appears that the bollard was not swabbed. 171Dr Botterill was then asked by the Crown to consider whether a fall down the stairs might explain the full range of injuries identified on autopsy. He thought this "conceivable" but "very unlikely" (T251). He went on to say in the same line of questioning by the Crown at T251 that he had not seen what the Crown described as "a constellation or a collection of injuries" as presented in this case in any post-mortem he had conducted or that his colleagues in Queensland had conducted. 172What comprised the "constellation of a collection of injuries" was never identified with any clarity. It was not resolved in cross-examination when again Dr Botterill said that "it would be an extraordinary fall to result in that degree of injury" (T262). 173The assumption in both the question asked by the Crown and not clarified in cross-examination is that all or most of the 16 individual injuries which comprised "the constellation" were sustained near or at the time of death. A review of Dr Botterill's evidence discounts at least three sites of injury as logically not within the constellation. They include injury number 10, a yellowing bruise likely to be sustained a day or more prior to death; injury number 15, a scar on the inner aspect of the left elbow and injury number 16, surface scabbing above the ankle on both legs. 174The sites of bruising and grazing to the deceased's lower back (injury number 9), the back of the knuckle on the right index finger (injury number 12), a graze to the back of the arm above the elbow (injury number 11) and the bruising to the deceased chest and neck were not able to be aged with any greater degree of specificity than up to a day before death. In respect of the chest injuries in particular, the Crown asked Dr Botterill the following question: Q. Doctor, in relation to the injuries that you see there [referring to the bruising on reflection of the neck and chest], given any normal forensic difficulties, but are you able to say whether it is consistent with having occurred at much the same time as the injury that is seen in the area of the chin? A. It is very difficult to be specific about the timing of injuries. Really, the best that one can say is they are within about a day of the time of death or greater than a day or so. And both the injury to the chin and these bruises here were consistent with an injury up to the time of death or a day or so before. Q. There is no reason why you couldn't say that despite those difficulties you couldn't say they occurred at the same time or roughly the same time? A. No, yes, yes. They certainly could have occurred at about the same time, yes. 175In cross-examination Dr Botterill said: Q. Well in terms of the length of time that a bruise can still be exhibited on your body they can last over a week sometimes, even longer? A. Yes. Usually if they last more than that first day or they are visible for more than the first day they will undergo some change as they fade so they will develop a yellowish or brownish discolouration then fade but certainly with a deep bruise it can still be there a week later for sure. Q. What is the outside age of the bruising in the chest and neck area? A. Again I can't really say beyond about either at the time of death up to about a day before. 176The multiple areas of bruising and grazing on the deceased's back, including deep bruising in areas designated as AD 1-4 where the skin over the back of hands and forearms were cut to look for evidence of additional areas of bruising not apparent on an external examination, also showed bruising that could not be aged. 177Dr Rodriguez gave evidence that the injury to the brain that he observed would likely to be the result of would be mild to moderate force there being no breakage of the skull but enough force to break blood vessels and bruised the brain. He also gave evidence that the injuries to the brain that he observed might be fatal but not invariably so. He was unable to offer an opinion as to the height a person might need to fall from to sustain the injuries he observed in the deceased's brain. He gave the following evidence: Q. Any way of knowing how far for instance you would have to fall to get an injury like that? A. That's certainly been modelled, distances and, and injury. But that, the simple models don't very well translate into reality where falls are not usually simple and linear falls. So in reality it is no possible, certainly not for me. Q. Because you are not using a live human in the experiment? A. No, that would be unethical. Q. Most people would try at least, if they are conscious of course, try and stop themselves falling? A. Yes. Q. By trying to grab hold of things or they bump into things on the way down? A. (Witness nodded.) Q. But have you seen injuries similar to what was occasioned to this deceased where at least you have been told by the police or others in a reliable fashion that the fall was of a fairly insignificant nature? A. I don't recall instances like that but there may have been. Q. What I'm getting at, you don't need to fall from 20 steps or 10 metres or even five metres to get injuries on your brain as seen in this case, do you? A. That is correct. Q. Yes. But narrowing it down to precisely how far you would have to fall to get an injury like that, you can't assist? A. No. Q. And to your knowledge no-one is able to help us with that, are they? A. People would express an opinion but I'm not sure that that would be helpful. Q. Yes. People express opinions about lots of things. But so far as your experience they are not going to be able to get any closer than what we've got? A. No. Moderate force would be as far as I can ascertain. 178In re-examination he gave the following evidence: Q. You mention a contrecoup injury and as you have been told there was an injury to the back of the skull of the deceased and there was a bruising to the front of the brain you have said in evidence, is that right? A. Yes. Q. Is that similar to a contrecoup injury that was asked of you or not? A. Yes, that would count as a contrecoup, consistent with a contrecoup injury. Q. Was there bruising on either side of the brain? A. Yes, there was on the left side, this side. Q. And if somebody fell, hit their head say on a wall and then hit their head on the back area as they fell further, could that cause a similar contrecoup injury with the brain moving to the side rather than back to front or not? A. Yes, it could. Q. So the bruising to both the front of the brain and the side of the brain could be consistent with a fall, hitting a wall and then hitting a floor, something like that? A. Yes. Or alternatively one or both of those in isolation. Q. Or in the alternative it could be as a result of blows to the head? A. That is correct. 179Dr Duflou's evidence was to similar effect. As to the potential for a person to die from falling backwards he said: Q. Now, falls. Can you explain to the members of the jury that you've examined and read many, many cases where people will actually die from falling just from their own height? A. Yes, absolutely. A fall from your own height, especially if you fall backwards, is potentially very dangerous and can be lethal. There is a specific type of head injury associated with that called the contrecoup head injury. The exact mechanism is open to some debate, but essentially from purely falling backwards on to the back of your head you can die. It's a relatively uncommon outcome but it's certainly one that's in the standard experience of any forensic pathologist who does autopsies, even on an irregular basis. It's one of those things you see and that you know about, and I have certainly seen them and a fair number of them over the years. 180As with Dr Botterill, Dr Duflou considered that contact with the bollard of the staircase may explain the injury to the deceased's chin, in circumstances where you may not find blood in the area of impact: Q. Well, the injury to the chin occasioned to the deceased man, you've seen photographs of the solid wooden bollard at the end of the staircase? A. Yes. Q. Could the injury to the chin have been caused by coming into contact with that piece of timber? A. It could. Looking at the bollard it's relatively featureless, it's round, it has no sharp surfaces, but certainly striking a rounded surface hard enough can cause a laceration like that. Sometimes when you're lucky a laceration, a tearing of the skin, can reflect the surface which the person strikes. Often it doesn't. You would think from watching TV shows that it's always the case. It certainly absolutely isn't. It's uncommonly the case that you can say without a doubt this injury wa caused by this object with whatever type of impact. Q. After having contact with the bollard, so far as you're concerned are you able to agree or disagree with the proposition that having hit the bollard the force then pushes the deceased man back, either hitting his head on another step or the floor or the brick wall that is at the bottom of the staircase? A. Well, I'm certainly no physicist and I would very much hesitate to go in that direction, but certainly falls down stairs are invariably complex falls, they are not a straightforward, single fall and that's it. There can be multiple interactions with the surfaces. Q. How you lose your footing, the narrowness the staircase, whether you are up against soft objects, hard objects, the distance that you fall? A. Yeah, there are many variables. Q. Your weight, I suppose, is that a factor? A. I suspect it probably is. Q. Well, have you seen injuries to the back of the head occasioned by the deceased ion this case that have been caused by falls? A. That could be caused by the fall, yes, absolutely. 181And then later: Q. If the face or the jaw of the deceased man came into contact with the bollard, would that knock him out? A. It could. I think it's fair to say people can have lacerations of parts of their face, especially overlying bony prominences like the jaw, with relatively little force causing a nasty laceration. On the other hand, when it comes to being knocked unconscious there's relatively - in this case there's I don't think absolute evidence that the person was unconscious as a result of the brain injury, although it's likely, but in terms of when that brain injury happened in the sequence of events, I can't tell. Q. Did the blow to the chin or the impact to the chin take place before the impact to the skull at the back? A. I don't know. 182Dr Duflou also accepted (both in evidence in chief and confirmed in cross-examination) that the juicer was an object which could have caused the injury to the deceased's chin equally as he conceded that the possibility of that the deceased was struck on the chin by the juicer and fell backwards hitting the floor and perhaps a wall causing the head injury. 183In cross-examination he was invited to review and reflect upon the injuries to the deceased's chest. He accepted that it was possible that some of the edges of the juicer bowl might have caused those injuries. He was then asked the following question: Q. In terms of falling down a set of stairs doctor, those injuries [which must be taken to be limited to the bruising on the chest] don't appear to be consistent with that, do they? A. Probably not. It would be difficult to try and attribute it to something specific causing that. After saying that, you can get unusual injuries from tumbling down the stairs but I'd agree that likely not. Q. And you would agree that certainly in relation to a possible fall from the top of the stairs that that is unlikely, is it not? A. I would think that it's unlikely that the deceased fell down one flight of stairs and then turned around and a second flight given the injuries that are seen externally. It can certainly happen that a person falls down two flights. That's unusual, but I would expect more injury I would think. Q. Yes. Perhaps more bruising to the legs or arms or those areas that would come into contact with the hard object? A. Yes. 184Dr Duflou's evidence in the above extract was also extracted in the judgment of Hoeben CJ at CL at [61]. At [84], where his Honour reasoned to the conclusion that the evidence led at trial excluded falling down the stairs as a cause of death (whether the deceased was ascending the stairs or descending), his Honour attributed to Dr Duflou the definite opinion that a fall down the stairs, be it from the intermediate landing or from the top was unlikely. His Honour cited the extract above in [53] as the source of the evidence where Dr Duflou gave that opinion. I do not interpret Dr Duflou's evidence in that way. Having read his evidence carefully, I consider that he leaves open the reasonable possibility that the deceased died as a result of falling down what may have been no more than a few stairs either on the ascent or descent, striking his chin on the bollard in the process and sustaining multiple sites of bruising on his hands, elbow and back as he either sought to break the fall or as he hit various parts of the stairs and/or the floor before ultimately landing at the base of the stairs, striking the back of his head on the floor. 185Dr Duflou went on to give what I regard as very significant evidence bearing on reasonable possibility that the deceased died as a result of a fall, unrelated to any act of the appellant: Q. Did the deceased man have a lot of significant injuries or any significant injuries other than the impact to his brain? A. Look, externally the major injury was really the injury to the chin. In terms of severity of that injury, it is not particularly severe. The other external injuries were, from the types of cases I've seen in any event, now I think it's fair to say I tend to see fatalities, they were not particularly severe externally and in fact to me they were surprisingly insignificant compared to what you tend to see in most blunt force type interactions. Internally there was no fracturing of the skull, no fracturing of the jaw, no fracturing of the face, which against tends to suggest in the relative scale of things that it's relatively minor. Again it's more than if, for example, I was walking down the street and somebody suddenly punched me, but in terms of fatality it's very much at the lower end. Looking at the brain, there's some interesting injuries there. They're in fact fairly complex in terms of the injuries and how they were caused. They are potentially lethal injuries but with a lot of fairly diffuse brain injury, that affects the whole brain, what you see in the brain at the time of the death you can't necessarily say in many cases that would have caused death. It may have caused death or the person may have died with those injuries, so in other words they were coincidental or possibly they were contributory or possibly they were causative of death. There is unfortunately poor correlation with these types of injuries that were seen between being able to say how severe that injury was in fact. Q. Can you help us with the cause of death? What is the caution [sic] of death? A. In my view at a fairly simple level I believe the cause of death is more likely a head injury. There's brain damage. There has obviously been impact with the head in some way or other and there has been a couple of impacts to the head. I must say I personally would not have considered a neck compression in this case as being contributory and I don't think the heart disease was contributory in terms of causing death. So my personal view would have been that a head injury is the cause of death. In terms of the nature of the head injury, it's a blunt force type injury of a diffuse nature. How that was caused, I don't know. 186Were there evidence in the trial capable of satisfying a jury that the neck and chest injuries were sustained at or near the time of death then, despite the absence of any blood of the juicer or in the area where the juicer was found or on the outer clothing of the deceased, I would share the view reached by Hoeben CJ at CL that it would open to the jury to convict the appellant of manslaughter. 187However, the absence of blood on the juicer where, on the Crown case, it was used repeatedly by the appellant as a weapon and, on the Crown case, the only mechanism to account for the injuries to the deceased's chin and the chest (the appellant having none of the deceased's DNA under his fingernails - Dr Botterill having suggested that scratching of the deceased's chest under his clothes in the course of a struggle as a possible explanation for the injuries he described), a lack of any sufficient temporal connection of those injuries to the time of death (or within a reasonable time of it) have added to the doubt I have as to the appellant's guilt. 188The orders I propose are: 1. Appeal upheld. 2. Conviction quashed. 3. Verdict of acquittal entered. 189ADAMSON J: I have had the benefit of reading in draft the reasons of Hoeben CJ at CL and of Fullerton J. I am indebted to Hoeben CJ at CL for his summary of the facts and the evidence. However, I am unable to agree with his Honour's conclusions or with the orders he has proposed. I agree with the orders proposed by Fullerton J, substantially for the reasons her Honour has given. I wish to add some brief additional reasons for my view. 190This Court's task, when addressing a ground that a conviction is unreasonable and cannot be supported by the evidence is as stated in M v The Queen [1994] HCA 63; 181 CLR 487, MFA v The Queen [2002] HCA 53; 213 CLR 606 and SKA v The Queen [2011] HCA 13; 243 CLR 400. The question the Court must ask itself was articulated by the plurality (Mason CJ, Deane, Dawson and Toohey JJ) in M v The Queen at 493: "... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question: the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 191The plurality in M v The Queen went on to say at 494: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." 192For the reasons given by Fullerton J I do not think that upon the whole of the evidence it was open to the jury to be satisfied that the appellant was guilty. That there was a physical confrontation is undoubted. That there was an argument is not in question. The deceased's body revealed several injuries that it was open to the jury to find were inflicted by the appellant. It was also open to the jury to find that the cause of death was a head injury. However, the head injury could have been sustained by a fall, as the evidence of Dr Duflou established. There was no onus on the accused to identify, much less prove, what caused the deceased to fall, if indeed this was the mechanism by which his fatal head injuries were sustained. 193Although it was open to the jury to be satisfied that the Crown had excluded a fall all the way down the stairs as accounting for the various injuries and occasioning the death of the deceased, the evidence did not, in my view, go so far as to exclude a fall, either from the one level, or from a single step or from a few steps in a single flight. Although it is possible that the force of the injuries inflicted by the appellant on the deceased was the reason the deceased fell, if a fall was the cause of the head injuries, I do not consider that it was open to the jury to be satisfied of this beyond reasonable doubt. The timing of the infliction of the various injuries could not be sufficiently precise to establish contemporaneity with the fall. Nor was the evidence of the neighbour, Ms Cunney, capable of resolving this question to the requisite standard. 194It is not sufficient for the Crown to prove, as it was open to the jury to find that it had, that the fatal injury was not the result of the deceased falling all the way down the stairs. Rather the Crown was obliged to exclude all non-fanciful hypotheses consistent with innocence. Any different requirement would be inconsistent with the presumption of innocence and the right to silence. 195In some cases, the use of a weapon can lead to inferences about the cause of death being drawn which exclude reasonable doubt, particularly where, as here, the alleged offender and the deceased were the only people in an enclosed space. The present case does not belong to this category since the fatal injuries could have been caused by the force of impact of the deceased's head on the wooden floor after a fall which was not precipitated by any unlawful act on the part of the appellant. I do not consider that it was open to the jury to be satisfied beyond reasonable doubt that the Crown had excluded this hypothesis. For the reasons given by Fullerton J, the unproved assumption that there was blood on the juicer may have led the jury to exclude this hypothesis on what I consider to have been an erroneous basis. 196Although all of the Crown evidence must be taken into account, it does not, in my view, resolve the central question beyond reasonable doubt. Nor do the statements made by the appellant immediately after the deceased died permit his guilt to be inferred since they are consistent with the following incontrovertible facts: that the appellant and the deceased had a fight; that the deceased had died; and that the appellant had loved him and had not wanted him to die. 197Although the jury had an advantage, they had no relevant advantage in respect of the crucial issue which I have identified. The jury's advantage is not capable of resolving the doubt which I experience. In all of the circumstances, I am not satisfied that the verdict of guilty was reasonably open to the jury. ********** 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: 22 December 2014