R v Batterham

1. [1]

   Before the Court is an application by Benjamin Batterham for a certificate pursuant to ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW). The application arises from the prosecution of Mr Batterham on a charge of murder that ended with his acquittal by a Newcastle jury on 20 November 2019. The certificate if granted would enable Mr Batterham to apply to the Director-General of the Attorney General’s Department for payment of the legal costs of his defence.

2. [2]

   The relevant parts of the Costs in Criminal Cases Act are in these terms:

3. [3]

   In Cittadini v R [2010] NSWCCA 291 at [6] Fullerton J (with the concurrence of McClellan CJ at CL and Schmidt J) analysed what is involved in the hypothetical enquiry whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to proceed with the charge. At [7]-[9] her Honour said (some citations omitted):

4. [4]

   These authorities and others establish that on the present application the Court’s first task is to identify facts relevant to the charge on which Mr Batterham was tried, as established from all the evidence available up to the conclusion of the trial. I am then to determine whether, if the prosecution had possessed evidence of those facts before the charge was laid, it would not have been reasonable to proceed against Mr Batterham.

Events that led to the charge of murder

1. [5]

   The following summary of the events that led to Mr Batterham being charged with the murder of Ricky Slater is based upon evidence given at trial. These facts were not in any significant respect contested. Witnesses to the physical conflict between the two men differed on matters of detail but not on the essentials of this outline.

2. [6]

   At about 3:15am on Saturday, 26 March 2016 Ricky Slater unlawfully entered the home of Mr Batterham at 44 Cleary Street Hamilton, a suburb of Newcastle. Mr Batterham was in the living room, which was at the front of the house. Outside the living room was a small verandah that extended to the street frontage of the property. Mr Batterham was having a social drink with his friend Paul O’Keefe in celebration of Mr Batterham’s 33rd birthday, which was imminent. His wife and seven month old daughter also resided in the house but at the time of Slater’s unlawful entry they were sleeping over with Mr Batterham’s parents in the house next door at No 46.

3. [7]

   Ricky Slater stole some items from the bedroom of Mr Batterham’s daughter, including a bag for holding baby care items, a baby’s decorative headband and a baby’s change mat. Mr Batterham surprised him in the corridor of the house and Slater fled. Cleary Street runs east-west and No 44 is on the north side. Upon emerging from the house Ricky Slater turned right, ran to the corner of Devon Street and then ran north along that street to its intersection with Donald Street. Mr Batterham gave chase, with Paul O’Keefe following. At Donald Street Slater turned right again and ran east along that street to the intersection of Kent Street. Kent Street ends in a cul-de-sac where it joins Donald Street and a small group of trees and bushes are located there. Ricky Slater hid in these bushes. To that point he had run approximately 180 m.

4. [8]

   By the time Mr Batterham reached this intersection he had lost sight of Ricky Slater. He borrowed a mobile phone from a passer-by and made a triple-0 call for the attendance of police. He gave the operator his home address and said that he had been robbed by someone who had entered the home and taken a bag and other things. Mr Batterham commenced to give a description of the intruder but he interrupted himself and commenced to shout, “Hey, hey” when he observed Slater emerge from the bushes and run south on the Kent Street back towards Cleary Street. Mr Batterham again set off in pursuit, carrying the mobile phone that he had borrowed and with the call still connected to the triple-0 operator.

5. [9]

   Upon reaching the intersection of Kent Street and Cleary Street, Ricky Slater turned left, heading east on the northern footpath. Mr Batterham caught up with him outside No 30A and tackled him to the ground at approximately the line where the driveway of No 30A crosses the curb and gutter. This was 325m from the commencement of the chase. A recording of the triple-0 call was tendered in the Crown case. Its commencement at 3:24:48 and the time lapse from then until certain sounds can be heard in the background clearly show that the pursuit resumed, from the intersection of Kent and Donald Streets, at 3:26:30 and that Mr Batterham caught up to Ricky Slater at 3:27am or very close to that time.

6. [10]

   Once Mr Batterham had brought Slater to the ground he held him there, face down. Mr Batterham lay partly on top of Slater with the upper half of his torso over Slater’s upper back. Mr Batterham placed his left arm around Slater’s neck. Paul O’Keefe arrived on the scene and made some contribution to restraining Ricky Slater by kneeling or placing his foot on some part of the back of Slater’s body or legs. During the pursuit down Kent Street and onto Cleary Street Mr Batterham had issued a stream of angry obscenities. He continued with this while he had Ricky Slater restrained on the ground. This and the sounds of the struggle brought some of the near neighbours out of their houses.

7. [11]

   Mr Batterham punched Ricky Slater repeatedly to his head while holding him on the ground. The witnesses variously described these punches as striking the back of Slater’s head, the back of his neck and/or the side of his face. They gave widely varying estimates of the number of blows, from four up to “continuous punching”. At times during this struggle Slater shouted, “Let me up. I can’t breathe” or words to similar effect.

8. [12]

   Throughout the struggle, according to Paul O’Keefe and the five neighbours who came to the scene, Mr Batterham remained generally in the position previously described, restraining Ricky Slater on the ground. One witness (Daniel O’Keefe) described Slater biting Mr Batterham on what he thought was Mr Batterham’s left bicep during this struggle. Police photographs show a substantial bruise, consistent with a bite, on the right bicep. At the trial Daniel O’Keefe said that at the time of this bite Slater was trying to get up and trying to “roll out of the tackle”.

9. [13]

   Another witness (Peter Mahon) said that during the struggle Ricky Slater raised his shoulders off the ground about 50mm in in the course of resisting Mr Batterham. He said that at one point Mr Batterham relaxed his hold on Slater, who then bit Mr Batterham’s right hand between the thumb and index finger. This was followed by Mr Batterham immediately renewing his restraint including his left arm hold around Ricky Slater’s neck. Mr Batterham also delivered further punches at that time.

10. [14]

    Two uniformed officers, Senior Constables Aurisch and Sharman, arrived on the scene in a patrol car at a time given by them as 3:35am. An occupant of a house on the opposite side of Cleary Street had called triple-0 and she reported to the operator what she observed through her window. The timed recording of this call showed that she noted the arrival of the police car at a time near to 3:36am. The civilian witnesses and attending police said that as soon as the police arrived Mr Batterham let go of Ricky Slater and got off him. The officers immediately handcuffed Slater behind his back and rolled him to a recovery position on his left side.

11. [15]

    All of the witness accounts described Slater continuing to struggle against Mr Batterham until the arrival of the police. The struggle lasted in the order of 8 to 9 minutes. Daniel O’Keefe said that less than one minute before the arrival of the police Ricky Slater was “all fired up” and “still very, very vigorously resisting”, which caused David O’Keefe to leave the scene and return to his home across the street in search of a piece of rope with which to secure Slater.

12. [16]

    To the arresting police officers Slater appeared only semiconscious when he was rolled onto his side. Shallow breathing was felt around his mouth and was observed in the slight rise of his abdomen. He was passive and made no resistance. Mr Batterham remained nearby shouting abuse and attempting to kick Slater on the ground. After the police had pushed him away they turned their attention back to Ricky Slater. At that time they were unable to elicit any response and heard him make a snoring sound. Shortly afterwards they commenced cardio pulmonary resuscitation. An ambulance had been called by one of the neighbours sometime earlier. Upon arrival of the ambulance officers at 3:47am they found Ricky Slater to be in asystole, that is, he had no organised cardiac electrical activity and consequently no heartbeat. He had suffered cardiac arrest. Resuscitation attempts were continued. A heartbeat was restored and Slater was placed in the ambulance.

13. [17]

    On the way to the John Hunter Hospital at New Lambton Ricky Slater suffered a second cardiac arrest. Again his heart was restarted. Upon admission to the emergency department of the Hospital a computed tomography (“CT”) scan was undertaken to ascertain his brain function and status. Slater suffered a third cardiac arrest while undergoing the CT scan. He was revived a third time and thereafter remained in intensive care. He did not regain consciousness at any time after the arrival of the police at Cleary Street. He was pronounced dead at 11:23 am on 27 March 2016. He was 34 years old.

14. [18]

    On 26 March 2016 police took statements from each of the five neighbours who had been eyewitnesses to the struggle outside No 30A Cleary Street. They also conducted a recorded interview with Paul O’Keefe. On 27 March 2016 Mr Batterham was charged with Slater’s murder.

Dr Vuletic’s autopsy report 28 September 2016

1. [19]

   On 29 March 2016 an autopsy was conducted on the body of Ricky Slater by Dr Vuletic, who was then a senior staff specialist in forensic pathology at the John Hunter Hospital. From her own observations and with the assistance of a neuro pathologist’s examination of the deceased brain under microscope she made the following findings:

   1. (1)

      The immediate cause of death was generalised hypoxic brain injury.

   2. (2)

      This was secondary to cardiac arrest.

   3. (3)

      The deceased’s heart weighed 440g.

   4. (4)

      Histopathology of sections of the deceased’s heart revealed perivascular and diffuse interstitial fibrosis (scar tissue around the blood vessels and interspersed between muscle fibres), indicating cardiomyopathy (disease of the heart muscle).

   5. (5)

      The deceased was 178cm tall, weighed 110kg and had a Body Mass Index of 37.2. Dr Vuletic classified his body habitus as obese, with a protruberant abdomen.

   6. (6)

      There was bruising to the strap muscles of the neck, consistent with external force having been applied. There were no external marks on the skin of the neck. The degree and duration of the application of force in this location could not be stated.

   7. (7)

      There were no petechiae, being pinpoint haemorrhages on the face and in the eyes which may be an indication of pressure applied to the neck.

   8. (8)

      No bruising was visible externally to the back of the head but on reflection of the scalp subcutaneous bruising was observed from left to right across the occipital region and in the left parietal region.

   9. (9)

      An ante mortem blood sample taken at 4:20am on 26 March 2016 contained 0.71mg/L of methamphetamine per litre of blood and 0.05mg of amphetamine, the latter being a metabolite of the former.

2. [20]

   In her autopsy report Dr Vuletic identified five possible causes or contributory causes of the deceased’s cardiac arrest. They were as follows:

3. [21]

   The report concluded “it is likely that the above factors have acted together to cause cardiac arrest which resulted in the development of hypoxic/ischaemic encephalopathy”. Significantly each of the five causes was expressed only as a possibility. At trial Dr Vuletic confirmed that her repeated use of the words “may have” denoted that these are in her opinion no more than possibilities. Dr Vuletic did not express in this report an opinion that any of these possible causes had in fact been a significant contributory cause of death. None of items “b”, “d” or “e” could support a finding of causation of death by acts of the accused, being a critical element of the charge of murder and of its alternative of manslaughter. Item “c”, the punching of the deceased’s head, was expressly discounted in the above list.

4. [22]

   On Dr Vuletic’s opinion this left only item “a” as a possible contributory cause for which the accused could be criminally responsible. This meant that the prosecution case depended from the outset upon proof beyond reasonable doubt that some aspect of Mr Batterham’s actions towards the deceased, other than the punches to his head, had “obstructed the blood flow to the brain and/or obstructed the airway resulting in hypoxia”, thereby causing cardiac arrest.

5. [23]

   Dr Vuletic’s opinion was properly confined to her field of expertise. Upon examination of the body and application of her medical knowledge she could put it no higher than a possibility that a chokehold had been applied of sufficient force and duration to interrupt blood flow to the brain and/or air intake to the lungs, thereby depriving the brain of oxygenated blood and leading to ischaemic or hypoxic brain injury which would in turn have stopped the heart.

The course of the prosecution

1. [24]

   A committal hearing was conducted over four days in August and September 2018. One of the eyewitnesses, Peter Mahon, was questioned at committal as were a number of medical expert witnesses, both for the Crown and for the defence. On 12 September 2018 Mr Batterham was committed to this Court for trial.

2. [25]

   The first element of murder, the death of the deceased, was obviously proved. On the second element, causation, the Crown case at trial was that the accused “had caused or substantially contributed to the death of Ricky Slater by application of pressure to his neck and downward pressure on his upper body while Ricky Slater was in a prone position”. Because Dr Vuletic dismissed the blows to the deceased’s head as a possible contributory cause of death, the Crown excluded them from its allegation of the relevant acts of the accused. Causation was the issue to which most of the evidence at trial was directed. It is highly likely that the jury acquitted the accused because they were not satisfied beyond reasonable doubt on this element. I will return to more detailed consideration of the evidence on causation later in these reasons.

3. [26]

   In opening and in final address the Crown relied upon the proposition that “the accused must take the deceased as he finds him”. That is a shorthand reference to the principal recognised by Taylor and Owen JJ in Mamote-Kulang v The Queen (1964) 111 CLR 62; [1964] HCA 21 at p67. In that case their Honours were dealing with an argument under s 23 of the Criminal Code (Qd). Death had resulted from a blow that would not have been fatal but for the deceased’s enlarged spleen, which rendered her vulnerable. The appellant was convicted of manslaughter. The appellant’s argument was that the death had occurred by accident, for which no criminal responsibility would attach. Their Honours said:

4. [27]

   In the same case at p79 Windeyer J made the following statement in a passage that referred only to manslaughter at common law but, seen in context, also applies to the element of causation in murder:

5. [28]

   In R v Moffatt [2000] NSWCCA 174 Wood CJ at CL said (with the concurrence of Foster AJA and Adams J):

6. [29]

   Following consideration of Royall v The Queen (1990) 172 CLR 378, Wood CJ at CL continued as follows:

7. [30]

   The principle that the accused had to take Ricky Slater as he found him, with a fibrotic enlarged heart and 0.71mg/L of methamphetamine in his blood, did not relieve the Crown of its onus of proving beyond reasonable doubt that the acts alleged against Mr Batterham, being “application of pressure to his neck and downward pressure on his upper body while Ricky Slater was in a prone position”, were a substantial cause of death. It failed to do so because it did not exclude the reasonable possibility that the factors of heart disease, methamphetamine present in the blood and strenuous exertion had caused death without significant contribution from anything done by Mr Batterham.

8. [31]

   With respect to the third element of murder, intent, the Crown alleged that Mr Batterham had intended either to kill Ricky Slater or to cause him grievous bodily harm. It was an extremely tenuous proposition that such intent should be inferred from Mr Batterham’s actions. He had made an emergency call for police to attend the scene very shortly before he commenced to restrain Slater on the ground. According to Paul O’Keefe, while Slater was being held down he was “carrying on”, asking to be let go, and Paul O’Keefe and Mr Batterham said to him, “No, you’re getting arrested […]”. Daniel O’Keefe heard Mr Batterham say loudly, “Call the police”. Peter Mahon gave evidence that he said to Mr Batterham words to the effect, “The police have been called”.

9. [32]

   It was indisputable on this evidence that Mr Batterham considered himself to be making a citizen’s arrest and was endeavouring to hold Ricky Slater until he could be handed over to police. Causing death or grievous bodily harm would obviously be more than “such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”, as permitted by s 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The proposition that Mr Batterham intended to kill or cause grievous bodily harm in the presence of six witnesses and while expecting the police imminently to arrive had negligible prospect of success with any tribunal of fact.

10. [33]

    The only other support for the alleged intent was that Mr Batterham was heard to say, “I’ll kill you”, or words to that effect, coupled with obscenities and reference to the fact that Ricky Slater had invaded his daughter’s bedroom to steal things. Mr Batterham was intoxicated and highly excited. He had no weapon and he took no action that appeared obviously lethal or directed to any purpose other than restraining and subduing Slater. It was highly unlikely that the jury would treat these exclamations of intent as literally true, especially when weighed against the improbability of Mr Batterham intending homicide in front of a crowd of onlookers and while awaiting the arrival of police to take his prisoner into custody. The alternative hypothesis, that he intended no more than to subdue Ricky Slater, to prevent his escape and to deliver him into police custody, could not have been excluded as a reasonable possibility.

11. [34]

    If the jury were satisfied beyond reasonable doubt that the accused had caused or substantially contributed to death “by application of pressure to [Slater’s] neck and downward pressure on his upper body” but were not satisfied that he had the intent required for murder, then they had to consider the elements of manslaughter by unlawful and dangerous act. It was common ground that the actions of Mr Batterham were authorised by s 100 of the Law Enforcement (Powers and Responsibilities) Act subject only to no more force being used than was reasonably necessary, in accordance with s 231. The Crown submitted during the trial that the jury should be directed to consider the blows delivered to Slater’s head when determining whether the amount of force used exceeded that which was reasonably necessary.

12. [35]

    I rejected that submission. There was only one count on the indictment, namely, murder. The acts of the accused that were alleged by the Crown to have caused or substantially contributed to death were “application of pressure to [Slater’s] neck and downward pressure on his upper body”. If the jury came to consider the alternative of manslaughter, because they found that these acts were committed and were causative but not that they were accompanied by the requisite intent, then their consideration of whether the acts were unlawful and dangerous for the purposes of manslaughter could not be directed to different acts from those that had been found causative. The Crown did not advance a case that the blows to Slater’s head were causative of death. It was therefore irrelevant to the jury to consider whether those blows were unlawful or dangerous.

13. [36]

    In addition to directions on the elements of murder, as discussed above, the jury were instructed on all aspects of manslaughter by unlawful and dangerous act. It is not necessary to refer to the detail of those additional directions in order to decide the present application for a costs certificate.

14. [37]

    At the conclusion of the Crown case counsel for Mr Batterham submitted that there was no evidence upon which the jury could find that his acts had been a substantial cause of Ricky Slater’s death. A verdict of not guilty by direction was sought. That application could not be acceded to because Dr Gunja’s opinion, to be discussed below, constituted some evidence to sustain the charge, if accepted. It was my view that a verdict of guilty would likely be quashed on appeal as unreasonable and unsupported by the evidence. However the expectation of that outcome was not a ground upon which the charge could be taken from the jury: R v R (1989) 18 NSWLR 74.

The re-enactment videos

1. [38]

   On 28 April 2016 investigating police made arrangements for each of the five neighbours to demonstrate what they had seen of the struggle. Each witness directed plainclothes officers to play the parts of Mr Batterham, Paul O’Keefe and Ricky Slater. These “walk-throughs” or re-enactments were video-recorded. The witnesses’ names, the house numbers of their respective residences in Cleary Street and the exhibit letters under which the re-enactments were tendered at the trial are as follows:

Dr Middleton’s report for the Crown

1. [39]

   Each of the medical expert witnesses is referred to in these reasons by the title “Dr”, for brevity, while recognising that a number of them are Associate Professors in their respective disciplines, at various teaching institutions. Before committal the Crown obtained two expert opinions concerning the cause of death. Dr P Middleton, a specialist in emergency medicine, provided a report dated 4 February 2017. He accepted that cardiac arrest had precipitated the general hypoxic brain injury of which the deceased died. Dr Middleton concluded that “the cardiac arrest was likely to have occurred due to the combination of” four factors, which he expressed in terms substantially equivalent to Dr Vuletic’s factors a, b, d and e. At trial Dr Middleton added as a contributory cause the deceased “partaking in extreme exercise whilst under the influence of methamphetamine”.

Dr Gunja’s dissenting opinion for the Crown

1. [40]

   Dr N Gunja, a clinical and forensic toxicologist, provided a report to the Crown dated 7 February 2017. In two significant respects Dr Gunja’s opinions differ from those of all other medical opinions on the case. First, he opined that the deceased’s fatal hypoxic brain injury was caused directly by “strangulation and asphyxiation”, rather than as a consequence of cardiac arrest. In his view, the cardiac arrest was secondary to hypoxic encephalopathy rather than the other way around. He said:

2. [41]

   Secondly, Dr Gunja dismissed the possibility that death could have been caused or even contributed to by the methamphetamine present in Slater’s blood, alone or in conjunction with his cardiomyopathy and strenuous exertion. He said that in the absence of autopsy findings of intra-cerebral haemorrhage, aortic dissection, myocardial infarction or pulmonary oedema, “there were no autopsy findings suggestive of methamphetamine toxicity”. He said that “methamphetamine caused serious drug toxicity […] is unlikely to have been directly contributory to Slater’s death”.

Defence medical reports served prior to committal

1. [42]

   Before the committal hearing Mr Batterham’s solicitors served on the Crown a report dated 22 November 2016 from Dr J Duflou, a forensic pathologist. He, like Dr Vuletic and Dr Middleton, considered that the hypoxic brain damage had resulted from cardiac arrest rather than having been caused directly by obstruction of blood flow to the brain or air intake to the lungs, as postulated by Dr Gunja. He said that the cause of death would be best given as “hypoxic/ischaemic encephalopathy due to cardiac arrest/s of unknown cause”. When questioned at committal Dr Duflou confirmed this sequence, as follows:

2. [43]

   Dr Duflou considered that the cause of the cardiac arrest was unknown in the sense that there were a number of possible contributors, of which one or a combination of two or more could have been causative. The possible causes were as follows:

3. [44]

   By “neck injury” (item 1) Dr Duflou referred to whatever force to the neck had caused the bruising of the strap muscles, as identified at autopsy. He said “there is minimal evidence for neck compression having caused death in this case”.

4. [45]

   With respect to methamphetamine toxicity (item 2) and heart disease (item 3) Dr Duflou said:

5. [46]

   Dr Duflou explained excited delirium (item 4) as a syndrome typically described as sudden death of a person without obvious cause, preceded by violent behaviour, often when the person has been restrained in some way and usually with the presence in the blood of a stimulant. There was a division of opinion amongst some of the medical experts in this case as to the scientific foundations of this syndrome. It did not assume great significance in the cases presented by the respective parties to the jury at trial. It does not require further consideration for the purpose of determining this application for a costs certificate.

6. [47]

   Also prior to the committal hearing Mr Batterham’s solicitors obtained and provided to the Crown a report dated 6 November 2016 from Prof MJ Christie, a professor of pharmacology. His report included the following opinions:

7. [48]

   Prof Christie’s opinion that the blood methamphetamine concentration was within the range in which this drug may be fatally toxic to the heart was thoroughly supported by his reference to studies of the subject. Dr Duflou gave evidence at the trial verifying the results of these studies, including by reference to his own research.

8. [49]

   Mr Batterham’s solicitors acted upon Prof Christie’s suggestion that a cardiologist’s opinion be obtained. They referred the case to Dr J England. His report dated 18 November 2016 was given to the Crown before committal. Dr England considered closely the autopsy results, particularly with respect to the heart. He reported in these terms (emphasis in original):

9. [50]

   In the first paragraph of the above passage Dr England overstated Prof Christie’s view, insofar as he referred to an opinion that methamphetamine toxicity alone “was the cause” of the cardiac arrest. He corrected this in the final paragraph, to “could have been” the cause.

10. [51]

    It has never been in issue between the Crown and Mr Batterham that the deceased’s cardiomyopathy was attributable to his chronic, long-term methamphetamine use. The Crown adduced evidence at the trial that the deceased had been known to staff of the Tamworth Base Hospital and the John Hunter Hospital for some years as an untreated methamphetamine user. A cousin of the deceased was called in the Crown case and gave evidence that he had seen him use methamphetamine daily.

Evidence of causation at committal hearing

1. [52]

   Drs Vuletic, Gunja, Middleton, England and Duflou and Prof Christie were examined at committal. These experts adhered to the opinions they had expressed in their respective reports. At the conclusion of the committal Dr Gunja was alone in his opinions that: (1) hypoxic/ischaemic brain damage had occurred first, caused by strangulation and asphyxiation and not by a preceding cardiac arrest and (2) methamphetamine toxicity was not a possible significant contributing cause of death. The two opinions are related.

2. [53]

   Dr Gunja discounted the significance of the deceased’s cardiomyopathy. At committal he said:

3. [54]

   This minimisation of the deceased’s heart disease was contradicted by both cardiologists who considered the case. Doctor England’s opinion has been quoted above. At trial the Crown’s cardiologist, Dr Kennedy, made these observations:

4. [55]

   Given the evidence of both Crown and defence medical experts up to the date of committal, a verdict of guilty of either murder or manslaughter would depend upon the jury accepting beyond reasonable doubt the opinion of Dr Gunja that death was caused solely by “strangulation and asphyxiation from being held in a prone position and chokehold for a prolonged period of time”. The Crown would have to exclude as unreasonable the possibility, positively supported by three medical experts (Drs Duflou and England and Prof Christie), that lethal arrhythmia, cardiac arrest and death may have been caused, without contribution from Mr Batterham’s actions, by one or a combination of other circumstances, namely: cardiomyopathy, 0.71 mg/L methamphetamine in Slater’s blood and his heart-taxing self-exertion – running as fast as he could for 325m to avoid apprehension and then trying to escape from physical restraint.

5. [56]

   I refer particularly to the evidence of Dr Duflou noted at [45] above, Prof Christie at [47] and Dr England at [49]. Drs Vuletic and Middleton did not purport to contradict the opinions of the defence experts but nor did they expressly acknowledge, as Drs Duflou and England and Prof Christie did, the possibility of a causative combination that received no significant contribution from any acts of Mr Batterham. The jury would have had to dismiss that possibility as unreasonable in order to find guilt beyond reasonable doubt. I see no basis upon which the Crown could have expected them to do so against the weight of these professional opinions.

Dr Kennedy’s reports after committal

1. [57]

   Following committal the Crown obtained reports from Dr M Kennedy dated 25 March 2019, 10 April 2019 and 9 September 2019. Dr Kennedy is a highly experienced physician specialised in non-invasive cardiology and clinical pharmacology. He has had long clinical experience in fields particularly relevant to the circumstances of this case. He has studied the effects upon the heart of stimulants such as methamphetamine, especially in the context of high level exertion in sports.

2. [58]

   In the first of his reports Dr Kennedy expressed the following views:

3. [59]

   In Dr Kennedy’s report of 25 March 2019 he answered questions posed by the Crown as follows:

4. [60]

   In his report of 10 April 2019 Dr Kennedy responded to the autopsy report of Dr Vuletic, to the reports of Drs England, Middleton, Duflou and Gunja and that of Prof Christie and to the evidence given at committal. He disagreed with Dr Gunja’s view that strangulation with asphyxiation was the, or a, cause of death. He said:

5. [61]

   Once these reports had been obtained the Crown was bound to call Dr Kennedy at the trial and to adduce his opinions. If those opinions were accepted by the jury they would constitute affirmative proof that the deceased died of a cause independent of the accused’s alleged acts. If the jury assessed the substance of Dr Kennedy’s reports as at least a reasonable possibility they would be bound to acquit. Given the Crown’s onus and the criminal standard of proof, the jury could not find the element of causation proved merely by preferring the opinion of Dr Gunja. The Crown has never suggested any basis for dismissing Dr Kennedy’s conclusions as not representing a reasonable possibility. In due course the Crown called him in the trial as a witness whose opinions were worthy of consideration.

Evidence of Drs Vuletic, Middleton, Duflou and Prof Christie at trial

1. [62]

   At committal Dr Vuletic was shown the videos of the re-enactments. Between committal and trial she read Dr Kennedy’s reports. At trial Dr Vuletic expressly agreed with the opinion of Dr Kennedy quoted in the last paragraph of the extract at [58] above. She also agreed with his answers to Q2, Q7 and Q8 quoted at [59] and his opinion in the first paragraph extracted at [60]. By accepting Dr Kennedy’s answer to Q7 Dr Vuletic effectively withdrew her opinion that the restraint applied by Mr Batterham around the deceased’s neck may have caused or contributed to death by obstructing blood supply to the brain or air to the lungs (item “a” in Dr Vuletic’s list of possible causes quoted at [20] above). As earlier mentioned, that was the only possible mode of causation originally nominated by Dr Vuletic that could have supported the Crown case that death was caused by acts of the accused.

2. [63]

   At trial Dr Middleton reiterated his opinion of that “the cardiac arrest was likely to have occurred due to the combination of” four factors that he described in terms similar to Dr Vuletic’s items a, b, d and e, to which he added “extreme exercise whilst under the influence of methamphetamine”.

3. [64]

   In Dr Duflou’s evidence at trial he adhered to his opinion that there were a number of possible causes and that death may have resulted from one or a combination of contributory causes, each of which was independent of the acts of Mr Batterham relied upon by the Crown. At trial Prof Christie held to his opinions, as quoted above.

Evidence of Dr Kennedy at trial

1. [65]

   Further evidence given at trial by Dr Kennedy supported and explained the opinions expressed in his report. First, with respect to the significance of the deceased’s heart disease he said this:

2. [66]

   Secondly, regarding the effect of methamphetamine in the blood Dr Kennedy said:

Evidence contradicting Dr Gunja at trial

1. [67]

   At trial Dr Gunja adhered to his view that constriction of the deceased’s neck by Mr Batterham occluded both the arteries supplying blood to the brain and the windpipe, resulting in “not enough oxygen going into the brain and that is why he had a cardiac arrest”. Other medical expert witnesses, including Drs Kennedy and Duflou, accepted that hypoxic or ischaemic injury to the brain can cause major disturbances in cardiac rhythm and, ultimately, cardiac arrest. However, undisputed evidence given in the trial established that Ricky Slater would have to have been kept unconscious for between 4 and 10 minutes, by sustained constriction of his carotid arteries or airway, before he would have suffered hypoxic damage to the brain sufficient to precipitate cardiac arrest by this chain of causation.

2. [68]

   First, with respect to interrupting cerebral blood flow by occlusion of the carotid arteries, being one aspect of the strangulation propounded by Dr Gunja, Dr Kennedy gave the following evidence:

3. [69]

   Dr Duflou gave evidence at trial regarding the duration for which occlusion of the carotid arteries would have to be maintained in order for the brain to suffer enough hypoxic damage to disturb cardiac rhythm and cause an arrest. He said this:

4. [70]

   Dr Duflou was not challenged on that evidence and no other witness contradicted it. Dr Gunja’s opinion that brain damage had been sustained prior to the cardiac arrest by a chokehold occluding the carotid arteries could only be accepted if the evidence was at least consistent with complete occlusion having been maintained for between 4 and 10 minutes, during the whole of which Ricky Slater would have been unconscious. None of the eyewitnesses described Slater passing out at any point in the approximately 8 minutes of Mr Batterham restraining him up until the arrival of police. Still less did any of them describe a period of 4-10 minutes of sustained unconsciousness. They described a man conscious and struggling until moments before he was handcuffed. This evidence disproved that the carotid arteries were occluded in an enduring manner.

5. [71]

   Dr Gunja said that if the carotid arteries were partly constricted but not fully occluded consciousness would not be lost instantly but after some delay. The length of the delay would depend upon the degree of restriction. He gave this evidence:

6. [72]

   Again, none of the eyewitnesses described Ricky Slater declining into delirium and then unconsciousness during the struggle, prior to the arrival of the police. According to the evidence of Dr Duflou quoted above, “if there is partial occlusion the chances are that there will not be long term persistent brain damage”. But in any event none of the witnesses suggested that brain damage would be caused, whether under occlusion of the arteries or partial restriction of them, until the oxygen in the brain had been depleted sufficiently to render the person unconscious and had continued at a low enough level to keep Slater unconscious for some minutes thereafter – which was not observed.

7. [73]

   Secondly, the other aspect of strangulation propounded by Dr Gunja was constriction of Ricky Slater’s windpipe so that air did not reach his lungs and any blood circulating to his brain was therefore not oxygenated. Other experts explained that this would require sustained complete obstruction of the airway. Dr Duflou said, without challenge or contradiction, that most people can hold their breath for at least one minute “with absolutely no effect on the brain”, and no loss of consciousness. He said “most people will quite readily cope with one minute of no oxygen”.

8. [74]

   On the evidence quoted above, total obstruction of the windpipe and/or any other prevention of air intake, such as downward pressure on Ricky Slater’s upper body in the prone position, would have had to continue for at least another 4-10 minutes after lack of oxygen in the blood that was reaching the brain had caused initial loss of consciousness. Only after several minutes of cerebral hypoxia would there be sufficient brain damage to disrupt heart function, according to the evidence in the case.

9. [75]

   Again, the eyewitnesses positively refuted that there was such period of asphyxiation. A number of them testified that Ricky Slater shouted “Let me up. I can’t breathe” more than once during the struggle. In the Crown’s written submissions on the present application heavy reliance is placed on this evidence as supporting its case on strangulation. In fact Ricky Slater’s protests proved that his airway was not obstructed. If he was subjected to 4-10 minutes of complete airway occlusion, sufficient to cause brain damage through lack of oxygenation of his blood, he would not have been calling out during the process. On the medical evidence, he would have been unconscious.

10. [76]

    When asked by the Crown whether Ricky Slater’s shouting that he could not breathe was “consistent with some sort of respiratory obstruction”, Dr Vuletic initially agreed. That answer was, of course, dependent upon whether Slater was accurately describing his situation. Dr Vuletic gave the following further answers to questions from the bench:

11. [77]

    Dr Duflou gave much the same evidence when he was asked whether the airways could be blocked by a chokehold. He said:

12. [78]

    Dr Duflou said that because Ricky Slater was overweight and had a protuberant abdomen, lying in a prone position he would “have a subjective sensation of shortness of breath” but without “significant decrease in oxygenation […] to the blood from the lungs”. Dr Duflou referred to laboratory research and studies in Canada and the United States of America that have demonstrated this. While this sense of air starvation may have prompted Slater to shout that he could not breathe, the fact that he did so showed that he was in fact getting air.

13. [79]

    Dr Duflou also said that Ricky Slater’s windpipe could not have been blocked so as to cause brain damage through lack of oxygen saturation of the blood while he was able to “move in a purposeful way, or even semi-purposeful way”. Again this is common sense and, naturally, it was not contested. The eyewitnesses described Slater exhibiting purposeful movement for the whole time during which Mr Batterham was restraining him. His continuous struggle until the arrival of the police included kicking his legs, raising his shoulders off the pavement and biting Mr Batterham on the bicep and subsequently on the hand.

14. [80]

    Amongst other evidence of the continuity of the struggle was the recording of a triple-0 call made by Ms Sharpe, who lived at No 30A Cleary Street. As she spoke to the operator from a bedroom on the first floor of her home she observed and reported what was occurring between the two men about 7.5 metres away at the end of her driveway. The call commenced at 3:28:45 am, being approximately one minute and 45 seconds after the physical conflict had begun at 3:27 am. The sound of men shouting can be heard in the background for much of the recording.

15. [81]

    Early in the call Ms Sharpe told the operator, “He’s choking him to death”. This was immediately followed by the following exchange (times are given in minutes and seconds from the beginning of the struggle at 3:27 am):

16. [82]

    At 3:32 am, 5 minutes from the commencement of the struggle, Ms Sharpe told the operator that the two men were “still fighting”. There were then further exchanges as follows:

17. [83]

    There is entirely absent from the witness accounts any reference to Ricky Slater having been rendered unconscious and kept so for more than 4 minutes, as Dr Duflou said would have to have occurred for obstruction of his breathing to have caused hypoxic brain damage and precipitated cardiac arrest by the chain of causation that Dr Gunja postulated. Dr Middleton said:

18. [84]

    It would have been open to the jury to conclude that Ricky Slater’s air intake was partially restricted while he was on the ground, not enough to stop him from shouting and resisting but enough to reduce lung function and oxygenation to some degree. According to the medical evidence, if that is what occurred then it would have taken longer to “hit a steep slope of decreasing oxygen” than if the windpipe had been completely occluded and it would, necessarily, have taken longer for Slater to become unconscious. But none of the medical witnesses suggested that hypoxic brain damage could have been sustained, sufficient to disrupt cardiac function, until Ricky Slater had been kept unconscious for a period of several minutes.

19. [85]

    The Court has not been provided with the full letter of instructions to Dr Gunja. I infer from the terms of the doctor’s report that he was not given assumptions about the course of the physical contest between Mr Batterham and Slater. Rather, he was left to draw his own conclusions from the re-enactment videos. The doctor set out his interpretation of that primary evidence at p 3 of his report. He did not there say that he inferred Slater had lost consciousness all been kept unconscious for any significant period during the conflict but he may have so assumed. If so, his assumption was not supportable on the evidence of the eyewitnesses.

20. [86]

    The above detailed discussion may give the impression that the issue of causation was more intricate than was really the case. In simple terms, the medical evidence at trial was that death by strangulation, involving occlusion of the carotid arteries and/or of the windpipe, is a relatively protracted process. Significant constrictive pressure must be maintained on the neck, with the victim unconscious and incapable of speech or of controlled movement, for several minutes before hypoxic brain injury will arrest the heart. It does not appear that the Crown gave consideration to the fact that the five eyewitnesses saw Ricky Slater conscious, vocal and actively resisting during the period in which, on Dr Gunja’s thesis, he should have been in sustained unconsciousness as he was choked to death in front of them.

Conclusion regarding the relevant facts that are now known

1. [87]

   I am satisfied that no act or omission of Mr Batterham contributed to the institution or continuation of the proceedings against him on the murder charge (see s 3(1)(b) of the Costs in Criminal Cases Act). In order to determine the costs application it is therefore only necessary for the Court to decide whether it would not have been reasonable for the charge to have been laid on 27 March 2016 if the prosecution had at that time been in possession of “all the relevant facts” as they now appear following the trial. I am satisfied that that is the case.

2. [88]

   I find the following relevant facts, based on the evidence given in the committal hearing and at trial:

   1. (1)

      The deceased suffered a cardiac arrest first, causing cessation of blood supply to the brain with resultant general hypoxic brain injury. The encephalopathy was the direct cause of death.

   2. (2)

      There was a scientifically based and cogently reasoned opinion from Dr Kennedy, a highly qualified and experienced medical witness in a relevant specialty, to the effect that the cardiac arrest had resulted from causes independent of the alleged acts of the accused, namely, from cardiomyopathy, methamphetamine in the deceased’s blood and maximal exertion on his part.

   3. (3)

      The opinions of Drs Vuletic (at trial), Duflou, England and Prof Christie, that it was reasonably possible for the cardiac arrest to have been caused by one or combination of factors independent of any substantial contribution from the alleged acts of the accused, were likewise supported by those doctors’ relevant clinical experience and scientific reasoning.

   4. (4)

      There was no basis upon which the jury could reasonably have rejected the opinions of Drs Kennedy, Vuletic, Duflou and Prof Christie or failed to find that those opinions gave rise to at least a reasonable doubt as to whether the alleged acts of the accused had been a substantial cause of death.

   5. (5)

      Dr Gunja’s opinion that brain damage occurred first, through occlusion of the carotid arteries and/or the windpipe by strangulation, and that this precipitated cardiac arrest, was not supported by evidence of the necessary precursor to cardiac arrest occurring in this way; namely, that Mr Batterham’s actions should have rendered the deceased unconscious and kept him so for several minutes during the struggle, before the cardiac arrest.

   6. (6)

      There was no basis upon which the jury could have been satisfied beyond reasonable doubt that death had been caused in the manner postulated by Dr Gunja (a) in the face of the opinions of the other medical experts that it was at least reasonably possible that death was caused without any substantial contribution from Mr Batterham’s acts and (b) in the absence of evidence that Mr Batterham held the deceased unconscious for several minutes before cardiac arrest.

3. [89]

   Although it is not necessary to decide this, in my view the decision to charge Mr Batterham would have been unreasonable even if the prosecution had been in possession of only the evidence that had emerged by the end of the committal, before Dr Kennedy’s reports were received. If the prosecution had also been in possession of Dr Kennedy’s medical opinions when the charge was laid in late March 2016, the unreasonableness of prosecuting for murder would have been clearer still. The charge should have been withdrawn upon receipt of Dr Kennedy’s report of 25 March 2019.

4. [90]

   Mr Batterham acted lawfully and reasonably in chasing Ricky Slater when he found him intruding in his home and stealing property. He acted lawfully in first calling the police and then restraining Slater until the officers arrived. Having seen and heard the evidence of all the eyewitnesses it does not appear to me that the restraint applied by Mr Batterham was excessive, putting aside the blows he dealt to Ricky Slater while holding him down. Those blows may have gone beyond the force that was reasonably necessary to restrain Slater and to prevent escape. But it has been clearly shown by every medical opinion offered in the case that they played no part in causing death.

5. [91]

   In some of the public discussion of this case it has been assumed that it raises a question as to whether a citizen acts within the law if, in apprehending a person caught committing a serious offence, the arrest and restraint cause death. In fact, no such issue arose because it was not proved that Mr Batterham’s acts were a contributing cause of Ricky Slater’s death. The law is clear that only reasonable force may be used in an arrest. The outcome of this trial, where the verdict is consistent with the jury not having been satisfied that the restraint was causative of death, is not in tension with that rule.

6. [92]

   Dr Kennedy gave an authoritative and careful opinion that Ricky Slater did not die because of Mr Batterham’s restraint but because he had damaged his heart through chronic use of a dangerous illegal drug – methamphetamine or “ice” – and because the drug was in his system in a potentially lethal dose at the time of this incident and, from a medical standpoint, this was a dangerous condition in which to run hard and to wrestle in an attempt to escape apprehension after breaking and entering a dwelling in the middle of the night. The danger was that the methamphetamine would disrupt the rhythm of Ricky Slater’s heart and cause it to stop. In the doctor’s view, that is what occurred.

7. [93]

   Dr Kennedy provided the jury with a thorough scientific explanation of this, as follows:

Orders

1. [94]

   For these reasons there will be issued a certificate under s 3 of the Costs in Criminal Cases Act 1967 (NSW) in respect of the prosecution of Mr Batterham for the murder of Ricky Slater on 27 March 2016 at Hamilton in in the state of New South Wales.