Delaney v R

1. [1]

   PAYNE JA: Mr Alan Delaney seeks leave to appeal out of time and leave to appeal against his conviction by a jury on a charge of murder. I will refer to Mr Delaney as “the applicant”. The sole ground of appeal is that the verdict was unreasonable or cannot be supported having regard to the evidence within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW). Although the original notice of appeal sought only substitution of a verdict of manslaughter for the verdict of murder, after an amendment to the relief first sought and granted at the hearing on 5 July 2023, the notice of appeal sought the following relief:

   1. (1)

      Leave be granted to appeal the conviction and subsequent sentence;

   2. (2)

      That the conviction for murder be quashed.

Relevant background

1. [2]

   The applicant and the deceased, Mr Baxter, were known to each other. During the second half of 2019 Mr Baxter resided at the Kent Hotel in Queanbeyan. The Kent Hotel is about 100 metres south of a bridge over the Queanbeyan River. The applicant occasionally worked at the hotel and socialised with the deceased. Both the applicant and Mr Baxter were heavy drinkers.

2. [3]

   By December 2019, the relationship between the applicant and the deceased had become strained because the applicant believed Mr Baxter had stolen money from him and was imposing financially upon him and the applicant’s partner at the time.

3. [4]

   The deceased spent Christmas Day drinking on the east bank of the Queanbeyan River. He consumed eight litres of cask wine during the day, returning to the Kent Hotel to sleep late on Christmas night.

4. [5]

   The applicant spent the afternoon and evening of Christmas Day in the company of his then partner and her daughter. Around 1:00 am, the applicant and his partner quarrelled and she asked him to leave her house. The applicant was affected by alcohol at that time.

5. [6]

   SMS messages sent by the applicant to his partner between 1:00 am and 2:00 am on Boxing Day morning demonstrate that he was in a highly emotional state, lamenting what he considered to be the breakdown of the relationship. The text messages were abusive towards his partner but also appeared to blame the deceased for the break-up. Apparently, the applicant believed that the deceased had told the applicant’s partner that the deceased and the applicant proposed to visit a brothel together.

6. [7]

   After a night spent drinking with a school friend, the applicant set off on foot around 8:10 am on 26 December in search of Mr Baxter. Mr Baxter by this time was under the bridge over the Queanbeyan River where he had been drinking the day before. He was there with Mr Joseph Wipiiti, who at the time was living out of his car parked nearby.

7. [8]

   The applicant approached the deceased from the direction of the Kent Hotel. He was shouting abuse at Mr Baxter, including words to the effect of "I'm going to kill you". When he reached the deceased, the applicant punched he deceased repeatedly. As he did so he accused the deceased of telling the applicant’s partner about a proposed visit to a brothel. The deceased denied saying this. The deceased retreated from the applicant's blows and at one point during the attack was forced back over the arm of an armchair that had its back against a concrete bridge support.

8. [9]

   The sole eyewitness to the assault was Mr Wipiiti. I will turn to examine his evidence in detail below. It is uncontroversial that the applicant drove the deceased back against the bridge and that his blows caused Mr Baxter’s head to strike the concrete. A key question in the trial was whether the jury should accept Mr Wipiiti’s evidence that the applicant used his knee to strike the deceased’s abdominal area. It was also in issue at the trial whether the deceased was able to defend himself from the assault, at least in part due to inebriation. A blood sample taken from Mr Baxter at autopsy gave a reading of 0.197 grams of alcohol per 100 millilitres of blood.

9. [10]

   The physical conflict described above lasted for a few minutes between 8:10 am and 8:45 am. When the applicant broke off, the deceased was conscious and not outwardly injured. He was not bleeding. At the end of the attack, the applicant told the deceased "Get down to the river, so I can drown you". The deceased did not respond and the applicant then strode away from the river, and over the bridge towards the business centre of the town. As he crossed over the bridge the applicant repeatedly shouted back to the deceased on the bank below words to the effect of "I'm going to kill you" and "I'm going to cut your head off".

10. [11]

    After the attack ended, Mr Wipiiti walked some distance away, but in under a minute, returned to Mr Baxter. In that time, Mr Baxter had either lain down or collapsed and was on the ground close to the armchair. After some time on the ground, he then attempted to stand, but after taking a few steps, collapsed against the concrete bridge support and fell to the ground.

11. [12]

    According to another man, Darcey Leleu, who arrived on the scene after the fight ended, Mr Baxter fell a second time, landing on his stomach. I will address this evidence in greater detail below.

12. [13]

    Mr Wipiiti and Mr Leleu called an ambulance at 9:22 am. The police and an ambulance arrived. Mr Baxter was taken from the scene at about 10:00 am and was delivered to the nearby hospital a few minutes later. Preliminary external examination did not reveal the cause of Mr Baxter's collapse. While being prepared for further assessment, Mr Baxter lost consciousness and could not be revived. He was pronounced dead at 11:03 am. The cause of death was not ascertained until an autopsy was conducted.

13. [14]

    The cause of death was a ruptured spleen that had led to massive internal bleeding, hypovolemic shock and heart failure.

The trial

1. [15]

   On 31 August 2021, the applicant was indicted on a charge of murder. His trial took place before Fagan J and a jury between 14 and 22 February 2022. An alternative verdict of manslaughter by unlawful and dangerous act was left to the jury. The Crown’s primary submission on causation, for both the murder and manslaughter charge, was that the knee-blows to the deceased’s abdomen ruptured his spleen and caused death. The Crown also submitted that even if the jury was not satisfied that knee-blows to the deceased’s abdomen ruptured his spleen and caused death, the assault by the applicant was a substantial or significant cause of death by causing the deceased to fall, rupturing his spleen.

2. [16]

   On 22 February 2022, the jury found the applicant guilty of Mr Baxter’s murder. On 26 April 2022, the applicant was sentenced to imprisonment of 16 years comprising a non-parole period of 12 years commencing on 27 December 2019 and expiring on 26 December 2031, with the balance of term of four years to expire on 26 December 2035. The applicant is first eligible for release on parole on 26 December 2031: R v Delaney [2022] NSWSC 492.

Leave to appeal out of time and leave to appeal

1. [17]

   On 4 May 2022, the applicant lodged a notice of intention to appeal his “conviction and sentence” in a single proceeding, 2019/405941 (the case number for the applicant’s charge of murder). On 1 November 2022, the applicant filed a notice of appeal against his conviction and sentence in the same proceeding. However, the case number written on this notice contained a typographical error. On 10 March 2023, the applicant filed an amended notice of appeal, seeking to appeal the applicant’s conviction only (and not his sentence). It also added a second proceeding number to the appeal, namely 2020/5074. Proceeding number 2020/5074, relates to minor charge of breaching an apprehended violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Fagan J dealt with this summary charge after sentencing the applicant for murder, recording a conviction without further penalty. The applicant’s solicitor thought she required leave to file the 10 March 2023 amended notice of appeal out of time. Insofar as the notice brings an appeal in proceeding 2019/405941 (the murder charge), leave does not appear to be required, as the appeal was filed within 12 months after the notice of intention to appeal was filed. Insofar as it is necessary, leave is granted to file the amended notice of appeal out of time.

2. [18]

   The applicant requires leave to appeal in respect of the sole ground of appeal: s 5(1)(b) of the Criminal Appeal Act. As the issues raised by the applicant are sufficiently arguable, I would grant leave to appeal. I will nevertheless continue to refer to Mr Delaney as “the applicant”.

Submissions on appeal

1. [19]

   The applicant’s sole ground of appeal is that the verdict was unreasonable. He argues that there were “discrepancies” in the evidence on causation, and that alternative explanations for the ruptured spleen were reasonably open. For that reason, the applicant says the Court should conclude it was not open for the jury to be satisfied of the applicant’s guilt beyond a reasonable doubt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at [6]-[7]. The applicant also submitted that the Court should conclude that the applicant did not have the relevant intention for murder.

2. [20]

   The applicant advanced two main challenges to the jury’s verdict. First, he submitted that it was not reasonably open to the jury to accept the Crown’s submission that knee-blows were inflicted which ruptured the deceased’s spleen and were in that way a substantial or significant cause of death. Secondly, it was submitted that the two “alternative hypotheses” advanced at trial – the so called “poleaxe fall” and a putative earlier fall – were reasonably open, meaning the jury could not be satisfied of the applicant’s guilt beyond reasonable doubt.

3. [21]

   The matters which are said should have raised a doubt about the knee-blow hypothesis were:

   1. (1)

      Evidence from forensic pathologist Professor Johan Duflou that a knee to the groin area or the hip/waist area would not lacerate the spleen;

   2. (2)

      Evidence from Mr Wipiiti that the kneeing he witnessed hit the deceased no higher than the waist or groin that all punches from the applicant landed in the area of the deceased’s shoulders or higher;

   3. (3)

      Discrepancies in Mr Wipiiti’s evidence which the applicant submitted should foreclose any reliance on it.

4. [22]

   The evidence said to leave open the hypothesis of an earlier fall was:

   1. (1)

      Evidence from Professor Duflou that a fall eight hours prior to death could cause the spleen to rupture occasioning death and that the deceased had a history of falling, including a prior hospital admission on 31 October 2019 after he tripped over a chair.

5. [23]

   The evidence said to leave open the “poleaxe fall” hypothesis was:

   1. (1)

      Evidence from Mr Leleu that the deceased fell twice after the fight. The first time he hit his head against the wall. The second he attempted to stand up but fell forwards onto his face and landed on his stomach in the process;

   2. (2)

      Evidence from Mr Wipiiti that the deceased stood up and walked but then fell headfirst into a wall and that the deceased fell a second time; and

   3. (3)

      Evidence from Professor Duflou that it was “possible” a fall of sufficient force could be solely responsible for the laceration of the spleen of the deceased

6. [24]

   The applicant’s written submissions did not address the issue of intention or the pleaded claim that a verdict of manslaughter should be substituted for the verdict of murder. A submission was made orally, however, that the jury’s verdict was unreasonable because the record of the applicant’s police interview apparently showed he had no intention to cause grievous bodily harm. The applicant further submitted that he had no intention to kill because if he was going to kill, he wouldn’t have walked away and left the deceased under the bridge.

Legal principles to be applied

1. [25]

   The principles that are applicable to an appeal on the ground that a verdict is unreasonable or cannot be supported having regard to the evidence were set out by the High Court in M where Mason CJ, Deane, Dawson and Toohey JJ, in their joint judgment, stated at 492-3:

2. [26]

   Subsequently, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test for whether the convictions sustained below were unreasonable in the following terms:

3. [27]

   The principles in M were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated at [13]-[14]:

4. [28]

   The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:

5. [29]

   In Dansie v R (2022) 96 ALJR 728; [2022] HCA 25 at [12], the High Court confirmed the continuing authority of M as the test for unreasonableness.

6. [30]

   In performing the task entrusted to it when reviewing a conviction, a court of criminal appeal must not disregard the benefit the jury enjoys in seeing and hearing the witnesses before it: Pell at [37]. The jury’s advantage includes, but is not limited to, its capacity to see and hear the witnesses give their evidence. As the High Court explained in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

7. [31]

   Where, as here, the case is largely circumstantial, the Court is required "to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard" and in so doing, to form its own judgment as to whether "the prosecution has failed to exclude an inference consistent with innocence that was reasonably open": Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55].

8. [32]

   Other principles when the case is circumstantial include:

   1. (1)

      A circumstantial case cannot be considered in a piecemeal fashion: R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 at [82];

   2. (2)

      For an inference to be reasonable, it must rest upon something more than mere conjecture and the bare possibility of innocence should not prevent a jury from finding an accused guilty, if the inference of guilt is the only inference open on the evidence: The Queen v Baden-Clay at [47].

My assessment of the whole of the evidence

1. [33]

   I have had regard to the whole of the evidence at the trial in assessing the applicant’s complaint that the verdict of the jury was unreasonable. I will first address the applicant’s principal complaint, causation.

2. [34]

   To succeed on the murder charge, the Crown had to prove that the applicant caused Mr Baxter’s death. That is, the Crown had to prove that a blow or blows inflicted by the applicant during his assault on the deceased was a “substantial or significant cause” of death. As both parties accepted on appeal, to succeed on the alternative charge of manslaughter, the Crown also had to prove a blow or blows inflicted by the applicant during his assault on the deceased was a “substantial or significant cause” of death. Accordingly, in the way the appeal was originally framed, the suggestion that a verdict of manslaughter could be substituted for the verdict of murder based upon causation was misconceived. If the verdict was unreasonable because of a failure properly to prove causation, the appropriate order would be an acquittal. That is now the relief sought by the amended notice of appeal.

3. [35]

   Turning to my assessment of the evidence, there is no doubt that the deceased was the subject of a highly violent assault by the applicant.

4. [36]

   Dr Ellis who attempted, with other medical professionals, to save the deceased when his condition rapidly deteriorated in the emergency department at Queanbeyan Hospital, gave clear evidence that a ruptured spleen is usually caused by significant trauma. A person would have abdominal pain because of the injury to the spleen, possibly mild pain but possibly severe pain if there was serious bleeding. Dr Ellis explained that the person might feel generally unwell and agitated because of low blood pressure and reduced blood flow to the brain. She said the patient might be breathless and have a racing heart rate. She explained that the deceased’s liver disease, caused by alcohol abuse, would have left him more susceptible to serious spleen injury.

5. [37]

   The case of death was established after an autopsy. Professor Duflou’s evidence was clear that death was due to bleeding in the deceased’s abdomen, as a consequence of a spleen-laceration caused by blunt force trauma.

6. [38]

   Professor Duflou’s evidence clearly established the following matters:

   1. (1)

      Blunt force trauma is any form of physical force applied to the body that is not sharp force or penetrating trauma. In broad terms, it is the result of either blows with objects, which can include punches or kicks. Professor Duflou could not quantify the amount of blunt force the deceased sustained, apart from saying it was sufficient to cause injury to the spleen.

   2. (2)

      The laceration to the spleen also appeared fresh, that is, having occurred around about the time of death. Professor Duflou did not see any signs of healing. This meant the injury was very unlikely to be more than 24 hours old, and it was probable that it was less than eight hours old.

   3. (3)

      The laceration of the spleen was accompanied by fracturing of overlying ribs on the left side of the torso. There were fractures which were sustained around the time of death (meaning from a number of days before death to immediately after death), and some older fractures.

7. [39]

   As Professor Duflou’s evidence about the likely mechanism of the ruptured spleen is important to the applicant’s complaint about the verdict of the jury, I will deal with it in some detail. Professor Duflou gave evidence that a knee-blow, especially a knee-blow to the abdomen, could be the cause of lacerations to the spleen. He was asked:

8. [40]

   Professor Duflou’s opinion was that in the present case it was more likely that there was blunt force trauma to both sides of the deceased’s ribs:

9. [41]

   At the heart of the applicant’s case on causation is the submission that a fall, rather than a blow by the applicant, was a reasonably possible explanation for the rupturing of the deceased’s spleen. In cross-examination, Professor Duflou was asked the following questions about the possibility of a fall causing the rib fractures and splenic rupture. I have underlined passages of particular significance:

10. [42]

    Mr Wipiiti was the sole eyewitness to the applicant’s attack on the deceased. The account Mr Wipiiti gave during his evidence in chief was in the following terms:

    1. (1)

       The deceased spent 25 December with Mr Wipiiti, drinking heavily and consuming about a cask of wine. He returned to the Kent hotel that evening. On 26 December, he walked back to the area under the bridge, where he again met Mr Wipiiti. In cross-examination, Mr Wipiiti confirmed that the deceased had more wine with him and started drinking a glass soon before the assault began.

    2. (2)

       Mr Wipiiti was with the deceased under the bridge, making his breakfast, when the applicant approached. Initially, the applicant and the deceased were out of Mr Wipiiti’s view. But Mr Wipiiti heard the applicant yelling at the deceased “I’m going to fucking kill you. You’re a dead cunt” and asking the deceased “What the fuck did you say to my girlfriend?”. He also heard the applicant say something like “Yeah you said you were going to take me to the brothel”.

    3. (3)

       Mr Wipiiti then heard punches, and saw the two men come from the right, around the side of a wall that buttresses the bridge. Mr Wipiiti did not recall what was being said. The applicant was hitting the deceased, with fists to the face. The deceased was trying to walk away and putting both his hands up in a defensive position in front of his body to try to protect himself.

    4. (4)

       The deceased was pushed up against the wall with the applicant in front of him, punching the deceased to the face and chin. Every time the applicant’s fist connected with the deceased, Mr Wipiiti saw the deceased’s head hitting the concrete wall.

    5. (5)

       The deceased was pushed back against the armchair. The attack resumed, and the applicant kneed the deceased at least twice, who was cowering over the chair before then falling into it. Mr Wipiiti observed each of the knee-blows connecting with Mr Baxter’s abdomen or ribs.

    6. (6)

       After the attack, the applicant walked off back across the bridge, swearing. The deceased was sitting on the ground. Mr Wipiiti got up to empty his breakfast into the bin. By the time he returned, the deceased was lying on his back with his head over the gutter. Mr Wipiiti asked the deceased to sit up as he was concerned for him.

    7. (7)

       Mr Leleu then arrived. No more than half an hour passed. The deceased then got up and said he was going home for a rest. He started walking, to Mr Wipiiti’s left along the wall. Mr Wipiiti then saw the deceased collapse, and the left side of his face hit the concrete wall, before he fell awkwardly down the wall.

    8. (8)

       In cross-examination, Mr Wipiiti said that when went to pick the deceased up he was complaining that he could not see, then he started complaining that he was dizzy. Mr Wipiiti helped Mr Baxter up but he fell back down to the ground.

    9. (9)

       In cross-examination, Mr Wipiiti said he did not see the deceased falling face down onto his stomach. In re-examination, he said that the deceased was complaining about his stomach hurting from “[w]hen he was lying on the ground and we were trying to keep him there till the ambulance arrived”.

11. [43]

    In cross-examination, Mr Wipiiti was asked in detail about the choreography of the fight. He was shown a DVD of an interview he gave to police on 31 December 2019, where he demonstrated aspects of the altercation. In that interview, he said there were four knee-blows to the deceased.

12. [44]

    The cross-examiner asked several questions about “where” Mr Wipiiti believed the kneeing took place. On appeal, counsel for the applicant submitted that these questions addressed “where on Mr Baxter’s body” the knee-blows made contact. In context, however, these questions are clearly geographical. The cross-examiner was seeking to cast doubt on the reliability of Mr Wipiiti’s ability to observe the assault by asking Mr Wipiiti about the location of the deceased while he was being kneed, and whether the deceased was on the “right hand side” or “left hand side” of Mr Wipiiti or various objects, such as the pylon or the armchair during that time. For example:

13. [45]

    The fact that the cross examination was not addressing the question of where on the deceased’s body the knee-blows had been, but rather the deceased’s whereabouts is further demonstrated by the re-examination, which proceeded without objection:

14. [46]

    There was some limited cross-examination about where on the deceased’s body the knee-blows made contact. These questions, however, went to the height of the blows, not the side of the body the kneeing struck. The following questions were preceded by a series of questions by the applicant’s counsel about the demonstration given to the police of the kneeing and then height of a table:

15. [47]

    In re-examination, Mr Wipiiti confirmed the applicant’s knees were connecting with the deceased’s “midsection and ribs”.

16. [48]

    Mr Wipiiti’s evidence provided little, if any, support for the thesis developed in submissions on appeal that there was confusion about whether the applicant was observed to knee the deceased on his left or right side.

17. [49]

    Mr Leleu arrived after the applicant had departed. His evidence was as follows:

    1. (1)

       Mr Wipiiti told him the deceased had been assaulted by the applicant. The deceased was “coming in and out of consciousness” or in and out of “coherency”. He took a long time to reply when spoken to. Mr Leleu and Mr Wipiiti spoke for a while. After that, Mr Leleu saw the deceased get to his feet and attempt to walk back to the Kent Hotel. As he was doing so, he slipped and fell against the wall. He fell with his head in front, so his chin struck the wall first, and Mr Leleu heard a crack before the deceased slid down the wall to the ground.

    2. (2)

       After falling the first time, Mr Wipiiti and Mr Leleu managed to get him to sit up, and then he attempted to stand up again but that time he fell forwards straight down to the ground, onto his face. In examination in chief, Mr Leleu said that “his whole body” hit the ground, he went rigid and fell without using his hands to stop him falling. In cross-examination, Mr Leleu agreed with the suggestion that the deceased “fell face first” and “landed on his stomach”. After the second fall, Mr Leleu called the ambulance.

    3. (3)

       In a triple-0 call on 26 December, Mr Leleu told the operator that the deceased had “been collapsing. Like he collapsed against the wall here … and he hit it really hard and then fell over on the ground and hit his head really hard on the ground” … “He’s dizzy. He’s, he’s out of it, very out of it” … “He can’t really answer me [about whether there was pain from the fall]”.

18. [50]

    That is, the contemporaneous evidence from Mr Leleu was that during the second fall the deceased fell over on the ground and hit his head really hard on the ground, not that he fell face first and landed on his stomach.

19. [51]

    I have also taken onto account the applicant’s police interview, which was played to the jury, who were also provided with a transcript. The record of interview was admitted as Exhibit 16. The applicant readily confessed to assaulting the deceased:

20. [52]

    The applicant denied any intention to kill Mr Baxter.

21. [53]

    The applicants’ version of events was as follows:

    1. (1)

       He and the deceased had known one another for about six months. When the applicant was assaulted by a “neighbour’s friend”, the deceased gave him some of his prescription Oxycontin tablets. The deceased had stolen $100 from his wallet some time before Christmas Day.

    2. (2)

       The applicant spent the evening of 25 December with his partner and her daughter. His partner said that the deceased had told her the pair were intending to visit a brothel. The applicant believed the deceased was lying about the brothel visit to “bust .. up” his relationship with his partner.

    3. (3)

       The applicant then met a friend and together they took a taxi from Queanbeyan to Civic in Canberra, where they drank in a park. The applicant then took a taxi back home to Queanbeyan.

    4. (4)

       Sometime after 7 am on 26 December, the applicant sought out the deceased. The applicant was angry.

    5. (5)

       At about 7.30 or 8 am, The applicant found the deceased walking in the middle of the road near the bridge. He followed the deceased back under the bridge, where the deceased had been drinking with Mr Wipiiti. The applicant recalled screaming and swearing and he began the assault.

    6. (6)

       The applicant hit the deceased “between eight and 12 times”. The deceased began standing, but soon “went down” and “was seated on the edge of the seat”. The applicant hit the deceased with a “closed fist” but then started slapping him with “a open hand”. At several points during the interview, the applicant complained that his right hand was particularly sore. This he attributed to a blow which missed Mr Baxter and instead collided with the bridge pylon:

    7. (7)

       When the attack ended, the applicant threatened to “chop [Mr Baxter’s] head off” and to “drag him down to the river and drown the bastard for what he’s done”. But he denied these threats expressed an intention to kill, saying “I go off when I’m, yeah, I, I express myself in very inappropriate ways sometimes” and “I wouldn’t chop his head off, honestly. I wouldn’t do that. I wouldn’t do that”.

22. [54]

    The suggestion that the applicant’s hand was sore by reason of hitting a pylon was inconsistent with text messages he sent on the morning of 26 December:

23. [55]

    The applicant also made a post to his public Facebook page later on the morning of 26 December:

24. [56]

    The applicant’s record of interview had little, if anything, to do with the issues of causation raised during this appeal. In any event, the applicant’s explanation for his sore hand was self-serving and inconsistent with his contemporaneous claim that “I’ve just broken my hand belting a cunt”. The jury were entitled give the applicant’s answers in the record of interview little weight.

25. [57]

    Having considered all of the evidence carefully I do not harbour any doubt about the cause of Mr Baxter’s death. In particular, the tenuous theory about the “poleaxe” fall put to Professor Duflou was correctly described by him as “a bit of an artificial construct”.

26. [58]

    The critical evidence supporting the Crown’s principal causation theory was given by Mr Wipiiti. On the essential issues his evidence was sufficiently clear and reliable. The setting aside of a jury's verdict on the ground that it is “unreasonable” is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Mr Wipiiti’s evidence as a whole included his cross-examination about a demonstration he gave to the police of his observations of the assault. During cross-examination, Mr Wipiiti repeated aspects of the demonstration, using his own body. The jury were able to assess the reliability of Mr Wipiiti’s evidence. This is a case where the advantages enjoyed by the jury loom large.

27. [59]

    In any event, even limiting myself to the evidence on the page in context of the all of the evidence in the case, Mr Wipiiti’s evidence seems to me clearly to demonstrate that the applicant inflicted knee-blows to the deceased’s mid-section. It was clearly open to the jury to conclude that at least one of the knee-blows made impact on the left side of the deceased’s abdomen.

28. [60]

    On appeal, counsel for the applicant asserted that Mr Wipiiti only recalled knee-blows to the right side of the body. But as I have explained, the cross-examination relied upon concerned the deceased’s location, in relation to Mr Wipiiti or various landmarks, while being kneed and not the side of Mr Baxter’s body the applicant kneed.

29. [61]

    The jury were entitled to accept Mr Wipiiti’s evidence in chief, and repeated in re-examination, that he observed each of the knee-blows connecting with Mr Baxter’s abdomen or ribs. The jury saw the evidence unfold and were entitled to put his answers about the blows being inflicted at a particular height in cross-examination (set out at [46] above) in context. As I have explained, Mr Wipiiti gave a demonstration of the assault to the police and was cross-examined at length about that demonstration. The applicant’s questions during cross-examination about whether the blows were inflicted at “leg” or “waist” height were specifically referring to that demonstration. It is significant that the cross-examiner did not suggest to Mr Wipiiti he was therefore incorrect in his account that the knee-blows he observed connected with Mr Baxter’s abdomen or ribs. Depending on the position of Mr Baxter’s body at the time the blows were inflicted, and depending on an understanding of Mr Wipiiti’s own physical demonstration, the answer given in cross-examination is not necessarily inconsistent with the evidence that the knee-blows he observed connected with Mr Baxter’s abdomen or ribs. Acceptance or rejection of this evidence was a matter quintessentially for the jury.

30. [62]

    Finally, Mr Wipiiti when challenged acknowledged mistakes and the limits of his own memory. He deferred to the statements he made in the fight’s immediate aftermath:

31. [63]

    The jury was entitled to accept Mr Wipiiti’s evidence as credible and reliable.

32. [64]

    The jury were entitled to conclude that a so called “poleaxe” fall never took place, at least in the way the case was argued on appeal. Mr Leleu’s evidence said to support the “poleaxe” hypothesis was vague and unconvincing. The suggestion that the deceased landed on his “stomach” rather than his head during the second fall was inconsistent with what Mr Leleu said during the 000 call immediately after the fight, when he said the deceased fell on his head.

33. [65]

    Even if, contrary to the view I have formed, the jury found Mr Baxter’s spleen was ruptured by a fall after the fight, it was well open to them to conclude that the second fall was itself substantially and significantly caused by blows inflicted by the applicant during the violent attack which had taken place minutes before. It was open to the jury to find that one or more blows in the attack left the deceased in the state of “incoherence” Mr Leleu and Mr Wipiiti described. Whilst it is true that the deceased had a high blood alcohol concentration at his death, the deceased had walked to the area under the bridge on the morning of 26 December. While he had a cask of wine with him, he had only just started drinking it before the assault began. There is no evidence of any fall, or tendency to fall, on the part of the deceased prior to the assault. On all of the evidence, the deceased was relatively coherent before the attack and became rapidly impaired after it, without much, if any, intervening alcohol consumption. In these circumstances, the jury was entitled to reject the possibility that the deceased fell by reason of alcohol intoxication. Even assuming they found a “poleaxe” fall occurred, the jury were entitled to conclude that a blow or blows inflicted by the applicant were a significant cause of that “poleaxe” fall.

34. [66]

    Nor, finally, should the jury have harboured doubt because of the possibility that the deceased’s spleen was ruptured in some other fall occurring in the eight or so hours before his death. The only evidence said to support this suggested hypothesis was the deceased’s previous hospitalisation for a fall on 31 October 2019. There was limited evidence to establish any tendency of recurrent falls. The jury was also entitled to find that the applicant was relatively coherent when the attack began, inconsistent with the hypothesis that his spleen was already ruptured by that point.

35. [67]

    Far from being left with any disquiet about the evidence, I am comfortably satisfied that the Crown proved causation beyond reasonable doubt. The evidence satisfies me, beyond reasonable doubt, of the following critical facts:

    1. (1)

       the deceased’s ribs were fractured above his spleen;

    2. (2)

       the applicant used his knee to inflict blows on the deceased’s abdomen to the central trunk;

    3. (3)

       the deceased was relatively coherent before the attack but became impaired immediately after it ended.

36. [68]

    It was well open to the jury to conclude that a knee-blow to Mr Baxter’s torso inflicted by the applicant caused the spleen-laceration and thus was a substantial or significant cause of his death.

37. [69]

    There was a lively debate before the jury about whether the applicant’s submission that the laceration arose from a “poleaxe fall”. It was open to the jury to reject Mr Leleu’s account as unreliable and accept Mr Wipiiti’s evidence that he did not remember such a fall, despite being in a position to observe it if it happened.

38. [70]

    Finally, even if (contrary to my conclusions) the “poleaxe” fall theory was reasonably open, it was well open to the jury on all of the evidence to conclude that Mr Baxter’s spleen was ruptured by a fall after the fight, and that the fall was itself substantially and significantly caused by blows inflicted by the applicant.

39. [71]

    There is another aspect of this case. To succeed on the murder charge the Crown had to prove that the applicant intended to kill Mr Baxter, or that he intended to inflict on Mr Baxter grievous bodily harm. Although this was the subject matter of the notice of appeal, no submission on this subject was advanced in writing.

40. [72]

    The applicant’s sole submission on intention was made orally. The submission was that this Court, in considering the whole of the evidence, should conclude that by reason of the applicant’s answers in the record of interview, the applicant did not intend to cause the deceased grievous bodily harm. As to intention to kill, the applicant submitted that “he certainly had no intention to kill because if he was going to kill, he wouldn’t have walked away and left the deceased under the bridge”.

41. [73]

    Having read all of the evidence I have no doubt that the jury were entitled to conclude that the applicant intended to cause the deceased grievous bodily harm. On all of the evidence I conclude that:

    1. (1)

       The applicant became extremely angry at the deceased prior to the incident on 26 December 2019. This is demonstrated by numerous texts, calls and Facebook messages made by the applicant leading up to and after what on any view was a very serious assault. One text message sent by the applicant to the applicant’s partner at 5:31 am on 26 December 2019 included the following:

    2. (2)

       Prior to the assault, the applicant yelled at the deceased “I’m going to fucking kill you. You’re a dead cunt”.

    3. (3)

       During the assault, the applicant shouted various threats and profanities, including:

    4. (4)

       The assault was a vicious attack on Mr Baxter and involved punching the deceased to the face and chin, punching his head into a concreate pylon and kneeing him (more than once) in the abdomen.

42. [74]

    As I have said, the jury were entitled to reject the applicant’s explanation of his state of mind in his record of interview. The jury were obviously entitled to conclude that the applicant intended, at least, to cause the deceased grievous bodily harm.

43. [75]

    The verdict of the jury was not unreasonable. I would reject this aspect of the applicant’s claim.

Conclusion and proposed orders

1. [76]

   For the foregoing reasons I propose the following orders:

   1. (1)

      Leave to appeal out of time granted;

   2. (2)

      Leave to appeal granted;

   3. (3)

      Appeal dismissed.

2. [77]

   STERN JA: I agree with the orders proposed by Payne JA and with his Honour’s reasons.

3. [78]

   YEHIA J: Having independently reviewed the whole of the evidence, I agree with Payne JA that the sole ground of appeal, namely that the verdict was unreasonable, has not been made out. I agree with the orders proposed by Payne JA.