R v Huber

1. [1]

   HIS HONOUR: On 23 September 2024, the Director of Public Prosecutions charged Robert Karl Huber (hereinafter the accused) on indictment with three offences. The first offence charged is an assault on Lindy Lucena (hereinafter the deceased), being an assault occasioning actual bodily harm which occurred on 26 December 2022. To that charge, the accused has pleaded guilty before the Court. The trial was conducted by judge alone.

2. [2]

   The second and third charges are murder and manslaughter and charge that on 3 January 2023, at Ballina in the State of New South Wales, Robert Karl Huber did murder the deceased, and, alternatively, that the accused did unlawfully kill the deceased. To each of those charges, he accused has pleaded not guilty.

3. [3]

   While manslaughter is a statutory alternative to murder and available as an alternative finding on a charge of murder even when not separately charged, the Director has opted to include manslaughter on the indictment. Nothing turns on such a distinction.

4. [4]

   As the assault occasioning actual bodily harm that occurred on 26 December 2022 is the subject of a plea of guilty, other than to note that a sentence hearing will be held in relation to that charge, nothing further in these reasons deals with that offence.

5. [5]

   Pursuant to the provisions of s 133 of the Criminal Procedure Act 1986 (NSW), the Court is entitled to make any findings that a jury could make on the guilt of the accused, which finding has the same effect, and the Court is required to issue a judgment which includes the principles of law applied and the findings of fact on which the judge has relied. Further, by the provisions of s 133(3) of the Criminal Procedure Act, where a warning is required to be given, the judge is required to take the warning into account in dealing with the matter.

6. [6]

   Generally, while it may seem rather odd, a judge hearing a judge alone trial is required to give the warnings and directions that would ordinarily be given to a jury dealing with the factual matters. Nevertheless, as there is a requirement to issue reasons which include the principles and findings of fact, the manner in which the judicial officer has dealt with the issues that are usually the subject of warning or direction should be obvious in any event.

Murder and manslaughter

1. [7]

   It is necessary to deal with the elements of the offence of murder and the relevant differences between murder and manslaughter. In order to prove the offence of murder, the Crown must establish, beyond reasonable doubt, each of the relevant elements of murder. They are:

2. [8]

   While murder may be proved in circumstances where element (d) includes a reckless indifference to human life, such is not a relevant aspect of the charge before the Court. Later in these reasons, I will deal with the difference between a deliberate act and the intention of the accused.

3. [9]

   If the Crown, on the charge of murder, is unable to prove beyond reasonable doubt the requisite state of mind of the accused, then the charge of manslaughter, being an unlawful killing other than murder, must be considered, but not before the murder charge has been resolved. The elements in relation to manslaughter are, except in relation to element (d), the same as that for murder.

4. [10]

   In order for the accused to be found guilty of manslaughter, it is necessary for the accused to be found not guilty of murder, and it is necessary for the Crown to prove:

5. [11]

   As can be seen from the outline of elements, the “only” difference between murder and manslaughter is element (d). In murder, the Crown is required to prove, beyond reasonable doubt, the requisite intention required for the more serious charge to be proved.

6. [12]

   In the case of manslaughter, the Crown is required to prove, again beyond reasonable doubt, the deliberate application of force to the deceased without the deceased’s consent, and that the application of force is dangerous in that a reasonable person in the position of the accused would have realised that by that act the deceased was being exposed to an appreciable risk of serious injury.

7. [13]

   The Crown does not have to establish that the act of the accused was done with any particular intention to injure. The offence of manslaughter is complete even if no injury was intended by the accused. The question is whether a reasonable person in the position of the accused would have realised that the accused was exposing the deceased to an appreciable risk of serious injury.

8. [14]

   There is a distinction between a deliberate act and an intention of the kind required for the offence of murder. In order for an act to be deliberate it must be voluntary and willed. Thus, an involuntary or reflex action would not be a voluntary act.

9. [15]

   On the other hand, intent and intention, in the context of murder elements, are ordinary English words and are to be considered in that way. The accused’s intention may be inferred or concluded from the circumstances of the act and other evidence. But the existence of the requisite intention is not determined objectively; it is a subjective intent that is required to be proved by the Crown in order to establish guilt for murder. The accused’s actual intent or state of mind is the issue that is required to be proved by the Crown beyond a reasonable doubt.

10. [16]

    It does not require the accused to admit his subjective intention to kill or his subjective intention to inflict grievous bodily harm. An intention to kill or to inflict grievous bodily harm can be inferred from the conduct itself. Ordinarily, human beings intend the obvious and inevitable consequence of the conduct performed.

11. [17]

    The question of proof of the requisite intention is not to be confused with whether there is a deliberate act (being a voluntary act), premeditation or planning, or regret at the eventual result. In the case of a homicide, many persons guilty of either murder or manslaughter may regret that the victim has died, but the Court is tasked with determining whether the intention existed at the time of the performance of the act causing death, not whether there was regret after the event. Further, an intention that exists at the time that an act is performed does not require that the act is premeditated or planned. An act that causes death may be a reaction or an intention formed on the spur of the moment.

Onus and standard of proof

1. [18]

   As has been stated, the Crown is required to prove the contested charges beyond reasonable doubt. To that end, the Crown is required to prove every element of the offence and every essential fact that makes up the offence beyond reasonable doubt. In this case, there is no defence of the kind that requires the accused to prove anything and there is certainly no obligation on the accused to prove any fact or issue in dispute. The accused is not required to prove his innocence.

2. [19]

   Proof beyond reasonable doubt is the higher of the two standards used in the justice system. While in civil proceedings a factfinder may be satisfied on the balance of probabilities, which requires that the scales of justice be tipped ever so slightly in favour of the existence of a fact as against its non-existence, the criminal justice system, in part because of the consequences of a finding of guilt, requires the higher standard of proof beyond reasonable doubt. The higher standard requires that the Crown eliminate any reasonable possibility inconsistent with the satisfaction of any one of the elements of the offence in question or of any fact necessary to be proved in order for guilt to be established.

3. [20]

   The presumption of innocence, which applies to every person charged with an offence, is a fundamental aspect of the criminal justice system and is the underlying rationale for many of the consequential rights enjoyed by an accused. These include the privilege against self-incrimination and the right to silence.

4. [21]

   The accused has stated, in an informal statement recorded on bodycam, that he did not touch the deceased. Apart from that expression in one or more iterations, the accused has remained silent. He is entitled to remain silent, and he need not have stated even that informal reaction to a question asked.

5. [22]

   The presumption of innocence requires the Crown to prove all elements of the offence. The circumstance that the accused has not given evidence, or has not given an account of events, cannot be used by the Court to give rise to any inference adverse to the accused or to fill any gaps in evidence that are or may be a result of the Crown case. An accused is entitled not to give evidence, to put the Crown to proof and to show that the Crown’s evidence does not establish the guilt of the accused beyond reasonable doubt.

Circumstantial evidence and inferences

1. [23]

   Most murder trials are to some extent circumstantial and rely upon inference. The Crown case relies upon the proof of a number of facts from which it asks the Court to infer criminal conduct of the kind alleged. It is necessary to discuss both the drawing of inferences in criminal trials, and elsewhere, and the means by which circumstantial evidence can amount to proof beyond reasonable doubt.

2. [24]

   The Court is entitled to draw inferences from direct evidence. In criminal trials, care must be taken in the drawing of an inference, and the factfinder must always bear in mind that it is for the Crown to prove guilt beyond reasonable doubt.

3. [25]

   The drawing of inferences has been described as “plain commonsense”. [1] In Fabre v Arenales, Mahoney JA (with whom, relevantly, Priestley and Sheller JJA agreed), after citing the judgment of Menzies J in Jones v Dunkel (at 312) and, at length, of Windeyer J in Jones v Dunkel (at 320-321), said, in relation to the drawing of inferences:

4. [26]

   Although not seemingly intended, the comment of Mahoney JA reverses the logical effect of the comments by Knox CJ and Dixon J. There is a difference between being able to draw an inference if human experience would not be contradicted to draw the inference, on the one hand, and, on the other hand, drawing an inference only when human experience would be contradicted if it were not drawn. In a criminal trial, it would seem that the inference may only be drawn where the issue is one that will determine or may determine guilt or is critical to the determination of guilt on the more strict requirement, namely in circumstances where not to draw the inference would contradict human experience.

5. [27]

   The drawing of inferences in civil and criminal proceedings was explained by Sir Frederick Jordan CJ in Carr v Baker. [3] The Learned Chief Justice said:

6. [28]

   The extract of the judgment of Sir Frederick Jordan refers to the availability of inferences and whether they should be drawn. When, as is often the circumstance in criminal trials, the factual issues are determined by a jury and there are two reasonable views to be taken of the evidence, it is a matter for the factfinder to determine which of the inferences should be drawn.

7. [29]

   In this case, it is for the Court, as presently constituted, to make that judgment. However, where there are two reasonable inferences that may be drawn and one of them is inconsistent with guilt or a finding critical to guilt, the Crown has not proved the element or critical fact in a manner that is beyond reasonable doubt. Ultimately, a guilty verdict is not able to be reached unless the Crown has excluded all reasonable hypotheses inconsistent with guilt. [5]

8. [30]

   In Baden-Clay, the High Court stated that for an inference to be reasonable, it must rest upon something more than mere conjecture. [6] However, that does not mean that there must be evidence supporting the hypothesis inconsistent with guilt in order for a Court to determine that the Crown has failed to prove its case. If, on the evidence adduced by the Crown and upon which the Crown relies, there remains a reasonable possibility inconsistent with guilt, the Crown has failed to prove its case, and the verdict must be not guilty.

9. [31]

   Not all facts are required to be proved beyond reasonable doubt. But each of the elements of the charge must be proved to that standard and each of the facts that are critical to the finding of guilt must be proved to that standard. In many respects, the drawing of inferences and the nature of circumstantial evidence overlap. While you can draw an inference on essential facts and the elements of the crime only where that inference is the only reasonable inference available, it may be that there are two or more reasonable possibilities from direct evidence that you accept and only one of them is consistent with guilt, but the addition of other evidence renders the inference consistent with guilt such that it is proved beyond reasonable doubt.

10. [32]

    Thus, where two or more reasonable possibilities in relation to an element of the offence or essential fact in the commission of the offence arise from the direct evidence that you accept, and only one of them is consistent with guilt, you must find that fact not proved and therefore the accused not guilty. Each fact is not looked at by itself. Rather, the evidence is looked at as a whole.

11. [33]

    The process by which facts are added together to prove, if that be the outcome, a fact beyond reasonable doubt is often described by analogy with the cable and the strands of a cable. Each particular strand may not be strong enough to hold the weight you need to hold, but when you bind all of the strands together, you form a cable that is strong enough to perform the task you want it to perform. Similarly, one can join facts together in such a way that you ultimately rule out any reasonable possibility or hypothesis, as a matter of common sense.

12. [34]

    Sometimes, however, a particular fact is crucial or essential to the ultimate conclusion and, in those circumstances, if that fact were not proved beyond reasonable doubt, then the whole cable fails and the weight of the burden of proving guilt beyond reasonable doubt cannot be sustained. In that sense, the essential fact is the weak link in a chain of reasoning. [7]

Witnesses

1. [35]

   In relation to lay witnesses, the Court as factfinder, can reject all of the evidence of any particular witness, some of the evidence of a witness or none of the evidence of the witness. In making that choice, human or common experience plays a large part, but demeanour can be overemphasised. Generally, the reliability or truthfulness of a witness is better determined by that which is known objectively and the extent to which such objective factors leave a doubt on the reliability or truthfulness of the particular witness.

2. [36]

   Where a witness is not believed, the evidence which is the subject of doubt does not form evidence to the contrary. The circumstance that the Court does not believe some part of the evidence of some of the witnesses does not result in proof of the opposite to that which has been asserted by the witness. If there were no other evidence on the issue, disbelieving the evidence of a witness results in the proposition that there is no evidence one way or the other on that fact. [8]

3. [37]

   Such a proposition is a matter of both logic and common sense. If a witness were to testify that the sky is blue, disbelieving the witness does not prove that the sky is not blue.

4. [38]

   Lastly, it is necessary to deal with the conflict between experts. Expert evidence is adduced pursuant to the terms of s 79 of the Evidence Act 1995 (NSW). It is adduced because of the specialised knowledge of the person giving the evidence.

5. [39]

   Necessarily, the term “specialised knowledge” imports knowledge of matters which are outside the knowledge or experience of ordinary persons, and which is organised or recognised to be accepted as a reliable body of knowledge or experience. In providing an expert opinion, an expert witness may, nevertheless, have regard to matters that are otherwise within the knowledge of ordinary persons.

6. [40]

   If the conflicting evidence of experts is not based on matters or assumptions with respect to matters upon which the non-expert factfinder can reach conclusions, but is rather an opinion on matters of science or at a level of difficulty and sophistication above that which might be expected of the general public, the non-expert factfinder cannot, by reference solely to that expert evidence, resolve the conflict in a manner which would eliminate reasonable doubt. Where experts are in conflict on issues of expertise, which do not depend upon facts that are in dispute and can be determined differently from that which is understood by the expert, it is not for the non-expert factfinder, in this case the Court, to choose between the different experts in a way which eliminates a reasonable doubt. [9]

Lay and police evidence

1. [41]

   There are agreed facts that deal essentially with the assault on 26 December 2022. [10] At about 9pm on that date, the accused assaulted the deceased during the course of an argument inside their caravan at Site 64 of the Reflections Caravan Park at Ballina.

2. [42]

   The assault was with a closed fist to the left cheek area of the face. A second punch was thrown, which connected with the deceased’s left arm as she raised it to block the punch.

3. [43]

   A security guard intervened, and the accused desisted from the assault and went to the rear of the caravan. As a result of the assault, the deceased had bruising around her left eye and over her left cheek. There was also bruising on the deceased’s forearms, presumably from the defence to the second punch.

4. [44]

   There are images of the deceased, [11] which show a small area of blackening under the eye and a darkening and possible abrasion on the left very upper cheek under the eye. There is no visible damage to the right side of the face. Nor is there damage to the nose of any kind that is visible in any of the photographs.

5. [45]

   The relevance of the injuries and event is that it provides a datum point from which the later injuries can be measured. It is also relationship evidence which confirms other evidence relating to the relationship between the deceased and the accused.

6. [46]

   On 27 December 2022, the accused was charged with the assault occasioning bodily harm and on 28 December 2022 was granted bail. Also, on 28 December 2022, a provisional apprehended domestic violence order was issued, which, apart from the usual provisions, prohibited the accused from being in the presence of the deceased within 12 hours of consuming drugs or alcohol. [12]

7. [47]

   The deceased’s daughter, Tahenie Giordmaina, testified that the deceased and Ms Giordmaina’s father separated in 2015, after which her mother relocated to Lismore with a friend. She became aware that her mother commenced a relationship with the accused but had never met the accused in person. She had conversations with him over the phone and communicated otherwise through text messages.

8. [48]

   Ms Giordmaina married in June 2022 and evidence was adduced about an engagement party which occurred in March 2021, shortly before her mother suffered a stroke. Ms Giordmaina had paid for her mother’s flight to Sydney to attend the engagement party, but her mother did not attend. She learnt about her mother’s stroke after she had attempted, on a number of different mobile numbers, to contact her.

9. [49]

   One of the calls was answered by the accused who told her that her mother had a stroke two days before. Ms Giordmaina drove with her fiancé to Lismore Base Hospital to see her mother. When the deceased was moved to Ballina Rehabilitation Unit, Ms Giordmaina returned to Sydney.

10. [50]

    Contact between Ms Giordmaina and the deceased after the stroke was “fairly sporadic”. Sometimes, the accused would answer the phone, and he would decide whether or not Ms Giordmaina could speak to her mother. He would tell her to “fuck off or hang up on the phone on [her] or would put it on speaker and then allow mum to speak on the phone but then consistently interject”. At one point, Ms Giordmaina and her mother corresponded on the accused’s phone.

11. [51]

    After the floods in 2022, the deceased and the accused were placed in a caravan park. The wedding occurred on 4 June 2022, and, again, Ms Giordmaina had booked flights and accommodation for the deceased. She was expecting her mother to arrive on 2 June 2022, but she did not arrive. She did not hear from her mother until the Monday after the wedding, and she was told that the flights had been cancelled out of Ballina due to COVID. However, even though Ms Giordmaina had paid for the flights, she did not receive a refund or flight credit relating to any alleged cancellation. I do not accept that the flights were cancelled.

12. [52]

    Screenshots of text messages are before the Court. [13] On 8 December 2022, Ms Giordmaina sent a text message to the accused asking him to put her mother on the phone.

13. [53]

    Earlier that day, the accused had called Ms Giordmaina and told her to come and pick up her mother from where they were because the accused and the deceased “were done”. His tone, according to the witness, was direct, angry and sharp. He did not answer follow up questions and hung up. In the text messages, Ms Giordmaina continued to ask to speak to her mother, to which the accused responded, “Tomorrow, now fuck off”.

14. [54]

    It seems, as a result of the assault and its aftermath on 26 December 2022, the accused and deceased were ejected from the caravan park at which they were accommodated following the floods.

15. [55]

    On 1 January 2023, there was a telephone conversation between the deceased and Julie Viney, the deceased’s sister. The conversation occurred in the late afternoon and the deceased told Ms Viney that “they [the accused and the deceased] were moving out of their motel they had been placed in. She didn’t know where they were going to be moved to. [Ms Viney] said to her you might not hear about where you would be staying as the next day was a public holiday. [The deceased] told her that they didn’t have a car, but they were getting a van”. As is obvious from the extract of her evidence, the next day, in the evidence of Ms Viney, was 2 January 2023.

16. [56]

    Ms Viney also gave evidence of prior contact with the deceased. The deceased and the accused had been together since the end of 2018 or early 2019. The deceased had multiple different phone numbers on which she could be contacted or from which she would contact Ms Viney. The accused would use the deceased’s phone numbers as well as his own. Ms Viney testified that in around Easter of 2022, the deceased had two strokes. Her knowledge of that came only from the deceased’s daughter, who, in evidence, referred only to one stroke.

17. [57]

    Ms Viney was aware that the deceased missed her daughter’s wedding and participated in a conversation with the accused in which the accused said that missing the wedding was “all my fault”. “[The deceased and accused] had some serious blues over all the days and if I owe anyone an apology it’s to [the deceased] ‘cause (sic) I know how much it really hurt her, its testing her”. The accused went on to say, “I deserve to feel like a shit”.

18. [58]

    While it is of little relevance in the issues to be decided by the Court, it would seem that the deceased was unable to travel to the wedding on account of injuries sustained by actions, or by controlling conduct, of the accused.

19. [59]

    Further relationship evidence was provided in the testimony of Ms Ann-Marie Bostick, a friend of the deceased. Ms Bostick had known the deceased since she was 14 years of age, and the deceased was a few years older. They were quite good friends. The deceased was known by the nickname “Kimmy”.

20. [60]

    The deceased married Ricardo Lucena and had one daughter from that relationship, whom these reasons have already mentioned.

21. [61]

    When the deceased and her then husband separated, the deceased lived with Ms Bostick in the Greater Sydney area off and on for some years. The deceased moved with Ms Bostick and her husband to Goonellabah near Lismore in 2017. Ms Bostick and her husband moved to South Lismore, but the deceased did not join them.

22. [62]

    Ms Bostick first met the accused in 2017 when she was living at Goonellabah. He stayed with Ms Bostick for four days. The accused and deceased then moved in together about a week after they met. They lived at various places around the Northern Rivers. Ms Bostick and her husband moved to a unit in Grafton after the floods in Lismore in 2022 and stayed in touch with the deceased.

23. [63]

    Ms Bostick was aware that the deceased had suffered a stroke and was admitted to Lismore Base Hospital then Ballina Rehabilitation but could not recall the dates other than it was after the floods in 2022.

24. [64]

    Ms Bostick maintained contact with the deceased during her relationship with the accused and saw the deceased five or six times between 2017 and 2022. One of those times was a coffee date in Lismore for about 30 minutes. The accused was present, and the deceased was “pretty subdued”.

25. [65]

    The deceased and Ms Bostick also spoke by phone several times, sometimes on FaceTime. The accused was usually present and was sometimes nice and sometimes abusive towards the deceased and Ms Bostick.

26. [66]

    After Ms Bostick and her husband moved to Grafton, in around October 2022, she did not see the deceased very much. This was the time between the two floods. Nevertheless, Ms Bostick and deceased spoke on the phone sometimes every day and sometimes once or twice per week. Ms Bostick said she could almost always hear the accused in the background.

27. [67]

    She recalled the accused saying, “Oh, you can have her. I don’t want her anymore”, and other nasty statements. While Ms Bostick could not recall how many times she had spoken to the deceased between October 2022 and January 2023, she did recall that she last spoke to the deceased around Christmas time.

28. [68]

    They would also always speak to each other on their birthdays. Ms Bostick’s birthday was on 3 January, and she does not recall speaking to the deceased on that day. During the last phone call that they had, the two of them spoke about the deceased going to Melbourne, as Ms Bostick and the deceased’s daughter and sister were encouraging the deceased to move in with her sister in Melbourne. The accused was making incoherent sounds in the background of the call.

29. [69]

    The deceased was, on the observation of Ms Bostick, more withdrawn after her stroke and had lost “chunks of memory”. She did not seem frailer in her movements.

30. [70]

    Evidence was also given by Aillia Craigie and her partner, Ryan Turnbull. Ms Craigie had been living in Inverell and moved to Ballina with their belongings at a time when their rental was not available. As a consequence, the couple lived at the back of the Salvation Army or Vinnies, across from the bus depot, for five weeks. Ms Craigie could not remember his name, but a man running the Salvation Army let them stay there over Christmas and New Years Eve. They stayed within the Salvation Army premises but outside.

31. [71]

    According to Ms Craigie, they left sometime in the middle of January because they obtained temporary accommodation in Lismore. During the time they lived at the back of the Salvation Army building, they made some friends who were Aboriginal in Ballina at the caravan park across from the beach.

32. [72]

    On one of the nights whilst staying at the Salvation Army premises, a woman came there to sleep. Ms Craigie did not know the woman and she remained there for only about five minutes, during which time she had a cigarette with Ms Craigie. According to Ms Craigie, the woman was an elderly lady, shorter than Ms Craigie, with black hair.

33. [73]

    While they were smoking, they were alone and then the woman’s partner came around the corner. He was swearing and telling her to get up, and said, “Let’s go”. They both walked away, and the man was screaming at the woman.

34. [74]

    Ms Craigie testified that she and Mr Turnbull moved to South Lismore the following day.

35. [75]

    The morning after the interaction with the man and woman, Ms Craigie and Mr Turnbull called the Department of Housing (sic) at 9am. They left all of their belongings at the Salvation Army premises when they left. They informed Mr Leadbetter, the person seemingly in charge of the Salvation Army, that they had temporary accommodation and that they would leave their belongings there in case they were put back in Ballina.

36. [76]

    Asked if Mr Leadbetter had told them that they could not leave their property there indefinitely, Ms Craigie said he had not. Ms Craigie and Mr Turnbull left for Lismore about lunchtime, catching a bus. They did not return to the Salvation Army to collect their property.

37. [77]

    Mr Turnbull testified to the facts in question. He had moved to Ballina at the end of 2022. He testified that while they were waiting for a house to be repaired, they stayed at the back of the Salvation Army for a few weeks before moving into temporary accommodation in Lismore.

38. [78]

    On one particular night, Mr Turnbull woke up due to a couple arguing. They needed a place to stay so Ms Craigie and Mr Turnbull offered them a place to stay, namely, to share the passageway with them, but they left. He had not met the couple before; it was dark when they arrived; and he never learned their names. The couple were there for only five to ten minutes.

39. [79]

    Mr Turnbull had been asleep on the side of the building between the Salvation Army and the Council Chambers in a covered area that was enclosed by a fence, generally referred to in the proceedings as the children’s play area. It had soft flooring.

40. [80]

    The man and woman approached the fenced area from the carpark, which is at the rear of the Salvation Army premises adjoining Holden Lane. Mr Turnbull corroborated that the couple, having been offered space at the side of the premises with Mr Turnbull and Ms Craigie, walked off. While the man was saying things to the woman, he could not hear anything that the man was saying.

41. [81]

    Mr Turnbull and Ms Craigie moved to their next accommodation the next morning after calling the Department of Housing and receiving temporary accommodation at Lismore.

42. [82]

    As a consequence of evidence to which the Court will shortly discuss, it was submitted that the events to which Ms Craigie and Mr Turnbull attest occurred before the night of 2 January 2023. The rationale for such an approach was that the belongings that were left behind by them were not noticed on the morning of 3 January 2023.

43. [83]

    If that were the case, the couple to whom Ms Craigie and Mr Turnbull referred would not have been the accused and the deceased. While the theory is an interesting one, it is far more probable that the couple were the deceased and the accused. First, the absence of evidence relating to the belongings of Ms Craigie and Mr Turnbull in the passageway on the morning of 3 January 2023 may result from a number of quite different factors. Simply, people may not have noted or noticed the belongings in the area. Further, Mr Leadbetter, who gave evidence in the proceedings, may have cleaned out the belongings at a very early hour of 3 January or on 2 January.

44. [84]

    It is far more likely that it was 2 January 2023. Mr Turnbull and Ms Craigie each gave evidence that they rang the Department of Housing (as they called it) at 9am the next morning, waiting for the office to open. It is not suggested that they rang from the side passage to the Salvation Army building. If they were waiting for the Department to open for business hours, which was the effect of the evidence, then it could not have been on 2 January 2023, because that was a public holiday. Nor could it have been on either 31 December 2022 or 1 January 2023, because that was the weekend.

45. [85]

    I am not suggesting that emergency housing may not be contactable over the weekend or out of business hours, but it is clear from the evidence that the business hours of the persons whom Mr Turnbull and/or Ms Craigie contacted were ordinary opening hours. Further, there is no suggestion of any other couple meeting the description provided, who sought and/or obtained a place to sleep in the passageway.

46. [86]

    While the demeanour of Mr Turnbull was more polished and impressive, one must be careful to draw inferences as to reliability or truthfulness from the appearance of witnesses, particularly where that appearance does not relate to the manner in which questions are answered. I accept the evidence of Ms Craigie, and I draw the inference that the couple in question were the accused and the deceased. However, it is hardly a matter that is crucial to the findings in this case other than it is evidence of the relationship between the deceased and the accused, about which there is abundant evidence otherwise.

47. [87]

    As to the relationship between the accused and the deceased, some of the evidence has already been the subject of discussion in these reasons but evidence was also adduced from Nicole Bennett. Ms Bennett came to know the accused and deceased at Reflections Caravan Park in Ballina where they all stayed after the floods in 2022. Ms Bennett knew the couple for a couple of months and became good friends with the deceased, according to Ms Bennett, because of the way in which the deceased was being treated.

48. [88]

    Ms Bennett testified that the accused would “be going off, yelling” at the deceased every couple of days. She could not now recall exactly what he said, but recalled it was abusive.

49. [89]

    On 3 January 2023, Ms Bennett recalled ringing the accused and cycling to see the couple at the Tamar Street bus stop. She and the deceased went into the Op Shop, and she bought a dress for the deceased, before returning to the accused who was putting their belongings at the back of the Salvation Army. I understand “the back” of the Salvation Army to be the passageway at the side of the building and between the Salvation Army building and the Council’s “flood” building.

50. [90]

    She recalled the accused giving the deceased $40 to go Op shopping. She did not recall the accused giving the deceased a kiss but accepted that was what she said occurred in the statement she gave to police on 5 January 2023 and did not dispute that it had occurred. She simply did not remember it.

51. [91]

    Ms Bennett gave evidence, of which there is CCTV footage, that the couple moved their belongings from the caravan park to the Salvation Army area via taxis in a couple of trips. Ms Bennett saw the accused loading their belongings into the taxis at the caravan park at a time before she rode over to Tamar Street. The accused, Ms Bennett said, went back and forth to get the rest of their belongings.

52. [92]

    The last time that Ms Bennett saw the accused and deceased was at the side of Salvation Army building with their belongings and they were “just standing there”. When Ms Bennett last saw the deceased, on 3 January 2023, the deceased had a black eye.

53. [93]

    Exhibit J contains a number of statements tendered by consent of the parties from persons who were not required for cross-examination. Joel Parker was a security guard stationed at Reflections Caravan Park and provided a statement on 6 January 2023. He knew the accused and deceased as a couple at the caravan park, and they were there before Mr Parker started as a security guard there.

54. [94]

    He described the relationship between the accused and the deceased, whom he referred to as Rob and Kimmy, as “quite loving” and he would see the accused with his arms around the deceased, having a giggle and laugh. He described them as acting a bit like teenagers. He does remember a couple of occasions only when he would hear yelling coming from the accused about which he thought very little.

55. [95]

    Mr Parker described the accused as probably being an alcoholic. Most times that he would see the accused and talk to him, the accused would be drinking or would be drunk. On most days the accused passed out on a chair at the front of his caravan.

56. [96]

    Before the Court is CCTV footage of the accused and deceased at the reception area of the Comfort Inn Motor Inn. This was at 12.14pm on 2 January 2023. They arrived by taxi and unloaded various belongings.

57. [97]

    The CCTV footage shows them speaking to someone who, I infer, worked at the motel and then leaving again with all of their belongings in another taxi at 12.34pm. The conversation between one or other of the couple and the motel employee is not before the Court and is not particularly important but I assume they sought to check into the motel and could not.

58. [98]

    That which is more important is that there is no direct evidence as to where the deceased and accused spent the night of 2 January 2023.

59. [99]

    There is also CCTV footage (or in taxi camera footage) and a statement in Exhibit J of Peter Lang. Mr Lang is a taxi driver who drove for Ballina Taxis and had done so for about ten years.

60. [100]

    At 7.30am on Tuesday, 3 January 2023, his shift started and at 10am he was parked at the taxi rank. He saw the deceased and accused. He described the deceased “struggling with her mobility” and seemed to struggle to step up to the gutter in order to sit at the bus stop. The accused did not help her.

61. [101]

    At 11am, Mr Lang was allocated a job by radio and picked up the accused, whom he recognised from the earlier sighting earlier. He described the accused as being a person who looked like he had been in the sun quite a bit, looked to be between 65 and 70 years of age, was fairly tall, looked a bit unhealthy, but did not smell and was “neat enough”.

62. [102]

    Mr Lang drove the accused to the caravan park, loaded up about 15 garbage bags and a couple of suitcases, all of which were wet and smelt like wet socks, and drove them to the Salvation Army building in Holden Lane. During the course of the journey, the accused told Mr Lang that he had been evicted from the caravan park and, “it wasn’t my fault, there were five people involved in the fight… No one is going to pick on my wife, and I defended her… when I was evicted security threw all my stuff out of the RV and into the rain”.

63. [103]

    Tracey Walsh saw the accused and the deceased between 12pm and 1pm on Monday, 2 January 2023. Ms Walsh is a volunteer at the Bargain Centre on 77 Tamar Street, Ballina, which is a second-hand shop. She noticed the accused walking along Holden Lane, back and forwards - walking between the Salvation Army building and the Council Chamber. When the accused walked back towards the Salvation Army building, Ms Walsh noticed the deceased standing on Holden Lane and saw her walk into the back of the Salvation Army building.

64. [104]

    Prior to that, at 6.45am, Mr Stuart Roach, [14] saw the deceased either in the drive through covered area or the adjacent car park, facing Holden Lane. The deceased was alone, walking. She looked unkempt and possibly homeless.

65. [105]

    Mr Roach works for Ballina Shire Council, rides a bike to work and leaves the bike in the car park behind what is described as the “flood building”, the building to the south-east of the Salvation Army building, being the building next door to the Salvation Army building along both Tamar Street and Holden Lane. [15] He described the deceased wearing a floral dress with bits of purple, pink and white, possibly shin length. This is the same dress depicted in the CCTV footage that the deceased was wearing on 2 January 2023 and, it seems, the same dress in which she was found on 4 January 2023.

66. [106]

    Having noticed the female, Mr Roach did a U-turn on his bike in the carpark next to the Salvation Army carpark and noticed a male at the entrance to the Salvation Army building from the Salvation Army carpark area on Holden Lane. The male was talking to the female, but he could not hear anything that was said.

67. [107]

    As Mr Roach waited to cool off before entering the Council building, he noticed the time was 6.48am. He went in to have a shower and on exiting the building did not see either the male or the female.

68. [108]

    At about 5.30pm on 3 January when Mr Roach was leaving work, he noticed a makeshift clothesline with towels and plastic bags on the ground underneath the clothes line. He also saw the deceased, being the same woman he had seen in the morning, in the rear carpark of the Council property and she was talking to someone but he was unaware to whom the deceased was talking.

69. [109]

    There is CCTV footage of each of the deceased and the accused during the course of 3 January.

70. [110]

    During 3 January, the accused and Chris Daley exchanged phone calls and text messages. There were five voice calls during the day, and at about 6pm, the accused sent a text message to Mr Daley reading, “if I called U would I ever waste yr time?”.

71. [111]

    Counsel for the accused suggested to Mr Daley during the course of cross-examination that Mr Daley and the accused were involved in a drug transaction. Mr Daley denied that proposition, but the number of calls and their frequency, together with the message which has been quoted leaves a significant suspicion that such was the case. If it were the case, it matters very little in the scheme of these proceedings, except that it may explain some aspects of reluctance by Mr Daley in the evidence he gave.

72. [112]

    Just after the message which was the combination of a series relating to Mr Daley and the accused meeting up at the hotel, the accused was seen on CCTV footage entering the beer garden of the Australian Hotel. He was wearing green cargo shorts and a white t-shirt, which was the outfit he had been wearing in the taxi that morning and was eventually found with significant blood stains.

73. [113]

    The accused left the beer garden at 6.25pm and walked in the direction of the Salvation Army.

74. [114]

    At 7.03pm, Chris Daley made a call to the triple zero emergency number, from outside the Council Chambers on Tamar Street. The call is in evidence. He had just passed by the Salvation Army Building on Tamar Street and, in his evidence adduced in the proceedings, was “slowly putting along”. He was travelling slowly because he was taking his dog for a walk and the dog was trotting beside him.

75. [115]

    In the call, Mr Daley relevantly said, “There’s a man bashing the hell out of his woman at the back of the Salvation Army in Ballina. … Yeah, I’m just letting you know there’s a woman getting bashed behind Salvation Army in Ballina”. There was some unfortunate confusion relating to the description that it was “at the back” or “behind” the Salvation Army building to which these reasons will refer.

76. [116]

    In his oral evidence, despite being pressed, or perhaps because he was, Mr Daley said he could not see anything; he only heard it. A photograph of the Salvation Army building from Tamar Street discloses that the gate to the side passage is capable of being seen through.

77. [117]

    Nevertheless, and despite his description on the emergency call, Mr Daley maintained that he only heard it, but it sounded like a man bashing the hell out of his woman. Mr Daley did not recognise either one of the voices. Nor could he hear what the man was saying, but it sounded like forceful murmuring.

78. [118]

    Mr Daley did not recall the text message or the phone calls and did not recall seeing the accused in the beer garden of the Australian Hotel on the evening of 3 January 2023. He did recall that he had seen the accused on the street and had said hello.

79. [119]

    Mr Daley did not give his name on the emergency call as he did not want to be involved but felt it was necessary to give a “heads up”. In cross-examination, Mr Daley not only denied supplying any illicit drugs to the accused but made it clear that he did not touch methadone, the relevance of which is presumably to avoid any involvement in the findings in the toxicity report.

80. [120]

    In the incident which Mr Daley referred to as a man bashing a woman, he heard the woman shout “stop” once or twice, or perhaps three times. He maintained that he did not see anything but heard an argument and heard “a man getting rough with a woman saying ‘stop’”. He could not tell how far inside the timber gates the man and woman were located.

81. [121]

    I accept that at 7.03pm a man was bashing a woman in the passageway at the side of the Salvation Army building where, eventually, the deceased was found. I doubt that Mr Daley only heard the events, but ultimately it matters not. I accept that what he observed was properly described in the triple zero call as a man bashing a woman.

82. [122]

    About 20 minutes later at 7.20pm, Ms Lesley Hudson-Moon observed a woman through the fence from Tamar Street. Ms Hudson-Moon worked at Australia Post and provided a statement to police on 5 January 2023.

83. [123]

    On 3 January 2023 at about 7.20pm, Ms Hudson-Moon was walking her dogs on the footpath in Tamar Street in a westerly direction, which, according to Exhibit C and the maps in evidence, is in truth a north-westerly direction along Tamar Street towards Moon Street. Ms Hudson-Moon walked past the Council Chambers and passed the Salvation Army building.

84. [124]

    When she passed the slatted fence that divided the passageway from Tamar Street, Ms Hudson-Moon noticed a woman lying on the ground and she heard a man grumbling and swearing. She yelled out, “Are you – are you okay, mate?”, to which the man replied, “Yeah”. However, in evidence, it was more a groan and gruff noise than a word that was indicated by the witness. Ms Hudson-Moon felt “a little unease” and left.

85. [125]

    Ms Hudson-Moon marked her location and movements on a photograph on which she drew, in stick figure form, the woman that she saw behind the gate. [16]

86. [126]

    Ms Hudson-Moon explained that she could see the head and body of the person lying flat. She did not know what the person was lying on. Ms Hudson-Moon thought that the person was either lying face down or on her side because she could see her back and hair.

87. [127]

    The person’s back was bare, and her buttocks and legs were covered. There was no movement from the person. The person was probably half a metre or one metre from the gate and her head was closer to the building on the other side than the Salvation Army premises. The building on the other side was a reference to the flood building of the Council.

88. [128]

    Ms Hudson-Moon could see a man who looked like he had been sitting down or crouching near the woman’s feet and was trying to get up. He was grumbling and swearing. She had heard the grumbling while walking along the footpath. The man went silent as soon as Ms Hudson-Moon called out to him to ask if he was okay.

89. [129]

    The volume was loud enough for Ms Hudson-Moon to hear it while walking on the footpath and the tone was distressed. The man was a couple of metres from the fence towards the feet of the person lying down. She saw the back of his head as he was facing away. The time of day in what was effectively the middle of summer was such that at that time it was light, and it did not usually get dark until after 8pm or 9pm.

90. [130]

    In cross-examination, Ms Hudson-Moon could not say whether the man was on different bedding or set up in a different sleeping place a couple of metres away from the woman. She did recall that the man was “a little bit in front of the woman” and was not lying down.

91. [131]

    Referring to her statement, the witness agreed that she had stated that the man was on a different bed or bundle of blankets. Ms Hudson-Moon did not move after he stood up.

92. [132]

    Ms Hudson-Moon said she could see the woman under the gate and the man she could see through the slats in the fence. She did not notice any blood around the woman.

93. [133]

    Ms Hudson-Moon said, in re-examination, that she was drawn to the area because of the man groaning while getting up and he responded to her question after that. Ms Hudson-Moon was hesitant about moving too close to the fence because of the situation.

94. [134]

    Senior Constable Makings read a statement he had prepared. He provided reasons that the Police were delayed in answering the call at 7.03pm about the bashing of the female. At 7.55pm Senior Constable Makings drove past the Salvation Army carpark and building in Holden Lane. He looked into the carpark and saw nothing.

95. [135]

    He was looking in the carpark because he had been told that the bashing was occurring at the rear, back, or behind the Salvation Army building. Senior Constable Makings could not see beyond the fence, which was like a pool fence, separating the carpark from the passageway in which the deceased was found.

96. [136]

    Senior Constable Makings did not alight the car and did not look into the passageway. Nor did Senior Constable Makings notice any property in the passageway and conceded that he could not see beyond the fence. The time at which Senior Constable Makings drove down Holden Lane for this purpose was 7.55pm.

97. [137]

    Between 5pm and 5.30pm on 3 January 2023, Ms Sue Blakey saw what I infer was the deceased chasing after a male who was about 50 metres up the road. [17] The woman had a limp. The male was walking on Holden Lane towards Moon Street. Ms Blakey saw the woman walk out of the rear of the Salvation Army carpark and she was yelling “John” which she yelled a few times. I accept that Ms Blakey may have misheard the name, and it may have been “Rob”. When the name was called out, the male put his arms up in the air and kept walking away.

98. [138]

    The female was a bigger woman, but Ms Blakey could not see her face. Ms Blakey did notice that the woman found it hard to walk quickly and was limping.

99. [139]

    I turn then to the evidence of the two persons who, on 3 January 2023, were working for the Salvation Army. They are Mr Leadbetter and Ms Magnay.

100. [140]

     Ms Brigitta Magnay worked as a volunteer at the Salvation Army in Ballina. She provided a statement to police on 5 January 2023 about the events of 3 January 2023. She was working that day, and it was her first day back after the Christmas/New Year break. She worked normally from 9.30am until 4pm, but on that day she worked from 1pm until 6pm.

101. [141]

     She noticed a couple of homeless people staying outside the Salvation Army building in the undercover area of the church. She recalled a meeting in which she and Mr Leadbetter went outside to speak to them. Ms Magnay recalled that it was about 1pm and they, being Salvation Army staff, had been told by the Council that they could not have homeless people staying there.

102. [142]

     Mr Leadbetter, according to Ms Magnay, told them that they had to move on. It was a man and a woman about middle aged. The woman was about the same height as Ms Magnay and Ms Magnay spoke mostly to her. The man’s voice was slurred, and it smelled like they had been drinking alcohol. Ms Magnay, in oral evidence, made it clear that she had smelled beer before, and it smelled like beer. Ms Magnay recalled that the man had an accent. The couple had a lot of belongings.

103. [143]

     After being told to move on, the man was very angry and was very abusive in his language. He said to Mr Leadbetter that he should be able to stay there and that they were not doing any harm. The man kept talking for about 15 minutes. He was talking loudly and swearing, while the woman was very quiet. The woman said to Ms Magnay that she was sorry and that they would go. The man told the woman that it was her fault. He was very angry and loud.

104. [144]

     Ms Magnay and Mr Leadbetter remained outside for 30 minutes talking to the couple, before they went back inside the building and locked the door. The last time Ms Magnay saw the man and woman, they were still in the courtyard. She did not notice any bruising on the woman’s face.

105. [145]

     In cross-examination, Ms Magnay stated that Mr Leadbetter had told her that he had already spoken to the couple earlier in the day. She was not aware of any other people staying in the same area outside the Salvation Army premises. There were other people staying there regularly in the past, up to some weeks ago, but she could not recall whether there was a couple who stayed in the same area on or just before 2 January 2023.

106. [146]

     Ms Magnay recalled that both the man and woman were slurring their words on 3 January 2023. She did not remember seeing any bottles of alcohol. When asked whether it was possible that what she smelt on the couple was not alcohol, but because they had not showered, she said that the smell of alcohol was “quite distinctive”. She had the impression that it was the smell of beer. While Ms Magnay does not have experience detecting the smell of beer on people who are intoxicated, she has had experience of being in the presence of people who had been drinking. Ms Magnay does not drink.

107. [147]

     Ms Magnay did not recall whether the man had said to Mr Leadbetter that they would like to leave their property there for the short time and they had organised storage. She did recall that Mr Leadbetter was going to help the couple move their belongings the next day. Ms Magnay agreed that it was possible that she may have perceived that the man was angry because he was talking in a loud voice. The man was taller than her, and Ms Magnay is about five foot seven, but she did not think the man was over six foot.

108. [148]

     On 3 January 2023, it was Ms Magnay’s first day back at work, as stated. The Salvation Army closed over the Christmas break from 23 December 2022, and she did not know if it had opened on Monday, 2 January 2023.

109. [149]

     Peter Leadbetter was, effectively, in charge of the Salvation Army, relative to others in that building. In December 2022 and January 2023, Mr Leadbetter usually attended the premises on Tuesday where he picked up bread and distributed it.

110. [150]

     Mr Leadbetter was volunteering on 3 January 2023, and he spoke to a police officer on 4 January 2023 about events that took place the day before.

111. [151]

     Mr Leadbetter could not recall what time he commenced working on 3 January 2023. He recalled that Ms Magnay was also volunteering on that day together with another volunteer who was helping pick up toys and bread.

112. [152]

     The accused and deceased introduced themselves to Mr Leadbetter when they came in from Holden Lane. He had first seen them in the children’s play area (the area with the soft flooring). In the conversation, Mr Leadbetter learnt from the accused that they had been put out of their caravan and were looking for somewhere to put their belongings temporarily. They had a shopping trolley with them and Mr Leadbetter did not see what was in it.

113. [153]

     Mr Leadbetter told them at the time that, “we didn’t really like people camping up the side of the building or at the back of the building because we’ve had people stay there in the past and – you know, without permission, and they made a lot of mess, and we ended up – ended up having to clear it up”.

114. [154]

     Neither the accused nor the deceased said anything in reply, according to Mr Leadbetter. Mr Leadbetter noticed that the deceased had a black eye, and she did not seem “all that well”. The conversation lasted about 15 minutes and Mr Leadbetter returned inside. He did not notice where the accused and deceased went.

115. [155]

     Mr Leadbetter saw the accused and deceased later that day. The deceased was sitting on the edge of the garden outside the gated area and Mr Leadbetter brought a chair for her. The accused was not there.

116. [156]

     Sometime in the early afternoon, Mr Leadbetter saw the accused and deceased on the concrete area at the side of the building with a lot of clothes. The accused said that “they were going to get a van the next day because he’d arranged for a storage shed for their belongings” and Mr Leadbetter offered to do it for free with his box trailer. The accused agreed. The conversation occurred in the carpark area. Mr Leadbetter could not recall whether Ms Magnay or the other volunteer were there with him.

117. [157]

     The accused went inside the premises to charge his phone and picked it up later. The building was locked between those occasions. Mr Leadbetter had left the premises and returned when it was still light outside. He then gave the accused his phone back. Mr Leadbetter then left the premises and did not see where the accused and deceased went.

118. [158]

     Mr Leadbetter visited some friends in East Ballina that evening. He called into the Salvation Army premises on his way back. It was about 9.30pm. Mrs Leadbetter corroborates that they went to friends and returned home via a stop at the Salvation Army.

119. [159]

     When they arrived at 9.30pm, Mr Leadbetter testified that it was dark, and he parked in the disabled carpark. As a consequence, the lights from his car would have shone down the passageway where the deceased and accused were staying and where their belongings were located. He turned his main lights off and left the parking lights on and alighted the car. He called out to the accused and thought he heard the deceased calling out to the accused. He also thought he heard a sound that was not a word coming from the deceased.

120. [160]

     He testified that his hearing was all right in January 2023. Mr Leadbetter called out to the accused again and thought he saw a dark figure standing in the concrete area. The figure sounded like the accused to whom he had spoken earlier in the day and the manner of speaking was “quite aggressive and yelling and threatening”.

121. [161]

     Mr Leadbetter was expecting the accused and deceased to be there that evening because they had all their belongings there. Mr Leadbetter then went home and when he returned to work in the morning, police were in attendance.

122. [162]

     In cross-examination, Mr Leadbetter agreed that his memory at the time of making the statement on 4 January 2023, is as good if not better than it was at the time he was giving evidence. He maintained that the first interaction with the accused and the deceased was the morning of 3 January 2023.

123. [163]

     Mr Leadbetter was asked about a young couple that had stayed at the side of the Salvation Army building the week before who had left a mess. The woman was Aboriginal. The male was big and quite aggressive too. Mr Leadbetter was required to clean up broken Christmas decorations, like glass baubles. The couple left some property behind and threatened Mr Leadbetter after he told them that he would leave their property out the front.

124. [164]

     Mr Leadbetter spoke with the accused in a normal manner. Before the nighttime the accused did not get angry, and he appeared sober. The deceased appeared quite docile and mentally or cognitively a bit slower or not quite normal. She did not appear intoxicated. Mr Leadbetter could not recall whether either of them were slurring their words during the day.

125. [165]

     Mr Leadbetter went on a bread run and spoke to the accused and deceased after returning from his bread run. The couple explained that they had put their property out because it was wet, and they were trying to dry it. This was the context for the conversation about taking the property elsewhere the next day. Mr Leadbetter did not agree that there was an understanding between them that the accused and deceased would stay the night as there is a contrary Salvation Army policy.

126. [166]

     Mr Leadbetter was shocked at the change in the demeanour of the accused when he returned in the evening. When the accused yelled back in an aggressive or threatening manner, Mr Leadbetter formed the opinion that the accused may have been drunk. This was based on the change in demeanour. He did not perceive any aggression between the accused and the deceased at the time. He also did not perceive any need to call police or that there was any threat to anyone.

127. [167]

     To the extent that there is inconsistency between Ms Magnay and Mr Leadbetter, I prefer Ms Magnay. First, 3 January 2023 was Ms Magnay’s first day back at work. She could not have been mistaken about the date.

128. [168]

     Secondly, as Ms Magnay started at 1pm, she would have more readily recalled that the meeting with the deceased and accused occurred shortly thereafter. Ms Magnay did not drink and may, for that reason, have noticed the smell of beer more readily than Mr Leadbetter.

129. [169]

     Thirdly, and more fundamentally, it was clear from the evidence of Mr Leadbetter and his demeanour that he was unreliable as to times, dates and details. Whereas Ms Magnay was much better informed on the question of details, times and dates.

130. [170]

     It is notorious that human memory will merge the details of different meetings occurring in quick succession. Overall, to the extent that there is inconsistency between Ms Magnay and Mr Leadbetter, I prefer Ms Magnay and accept her version of the meeting just after 1pm on 3 January 2023.

131. [171]

     As to other matters, there are a number of comments that need to be made. First, the reference by Mr Leadbetter to the cleaning of Christmas baubles in an area that has soft flooring and is generally referred to as the “children’s play area” is likely to be a reference to cleaning the Christmas baubles either immediately after Christmas or New Year’s Eve. The likelihood that Mr Leadbetter would allow glass or hard plastic to remain on the floor of a children’s play area for any length of time, given his nature, is remote. It may well be that the Christmas baubles had nothing to do with Mr Turnbull and Ms Craigie.

132. [172]

     Secondly, as to the cleaning up of the belongings of Mr Turnbull and Ms Craigie, Mr Leadbetter may have performed that task even before Mr Turnbull and Ms Craigie moved from the side passageway. As the belongings were moved only to the front of the premises, it is possible that there was thought to be nothing untoward by either Mr Turnbull or Ms Craigie about the movement of the goods within the Salvation Army premises.

133. [173]

     Lastly, Ms Magnay was speaking predominantly to the deceased. It may well be that the discussion with the deceased was quite separate from the discussion involving Mr Leadbetter. The testimony of Ms Magnay was, at least in part, to the effect that the accused was aggressive towards the deceased. Further, the aggression at 9:30pm from the accused may have been, if it were the case, that the accused had become aware that the deceased had died and di not want Mr Leadbetter to become aware of the situation.

134. [174]

     The only other comment that is necessary in relation to the evidence of Ms Magnay and Mr Leadbetter is that, at 9.30pm, when Mr Leadbetter called out to the accused and down the side passageway, having shone his headlights down the passageway when he arrived, the deceased did not respond at all to Mr Leadbetter. Mr Leadbetter said that he heard what he thought was the deceased calling out to the accused, but it was not said with any conviction. Indeed, Mr Leadbetter made clear in his answer to whether he heard the deceased calling out that he “might be wrong”. It was not a word, but some kind of noise which he was incapable of emulating.

135. [175]

     As to the difference between Ms Magnay and Mr Leadbetter about the meeting, again, it does not seem to be crucial. If it is relevant to anything, it is relevant to the accused’s mood and possibly the relationship between him and the deceased. But in truth, the relationship between them is not particularly controversial.

136. [176]

     It seems fairly clear that the relationship was a turbulent one. It was a relationship in which there were moments of care and closeness, and other times significant violence perpetrated by the accused against the deceased. It is also clear that the mood of the accused could change dramatically and over a very short period of time. It is more than merely possible that the accused was aware by then that his partner had died and was anxious about discovery or as to what he should do.

137. [177]

     Some evidence was adduced of a telephone call between the accused and the deceased relating to what seemed to be either an alibi or evidence of innocence relating to a different and earlier charge. The telephone call was made by the accused from prison, and therefore, recorded.

138. [178]

     At the end of the phone call, the accused said to the deceased, if she did not organise that which he had asked her to do, he would kill her. I am unwilling to take that phone call into account in determining the relationship between the couple, nor the state of mind of the accused. It seems to be a less than serious comment and not one which I take to be, in truth, a threat to kill.

139. [179]

     Other than the evidence already outlined, there were a number of police officers who were called to attest to what occurred at the police station at about 12.45am on 4 January 2023. While there was cross-examination about the details of the conversation, the difference between them seemed to be insignificant.

140. [180]

     I accept that the accused came to the police station to report the death. There was an exchange as to whether the accused was reporting for bail, and it is unclear whether that comment was flippant. It was certainly made before anyone was aware of the death of the deceased.

141. [181]

     Police officers then accompanied the accused to the scene in the side passageway of the Salvation Army building, the extent of which was recorded on bodycam and available to the Court. Evidence of what occurred at the police station was adduced from Senior Constable Andrew Stewart, Constable Daniel Pyett, Senior Constable Makings, who, as stated, had responded at 7.55pm to the report of a bashing, and Senior Constable Leigh Blundell.

142. [182]

     Body worn video, as earlier stated, was used thereafter to record the interaction between the accused and police. The accused directed the police to the side passage of the Salvation Army building and to the body of the deceased. During the course of the conversations, Senior Constable Stewart said to the accused that the police “were called to a domestic incident here a couple of hours ago”, to which the accused replied that, “there was no domestic incident”. It was then put to him that there was screaming heard coming from the area and the accused said, “Yes, we had an argument”. The argument, according to the accused, was three hours prior, this conversation occurring approximately at 12.45am on 4 January 2023, or just after.

143. [183]

     After the statement about the argument, Senior Constable Stewart warned the accused that he did not have to say or do anything, that it may be recorded and may later be used in evidence, which the accused understood. Thereafter, Senior Constable Stewart asked the accused about the blood on his shirt and his hands, to which the accused replied that it was his blood and that he bruised easily. Senior Constable Stewart remarked that there were no cuts on him.

144. [184]

     The accused was asked what the argument was about, but said he could not recall. He was also asked about the blood on the deceased’s face and how that came about, to which the accused replied that he did not know. The same answer was given in relation to bruising around the cheekbones and her eyes. At that point, Senior Constable Stewart took the commendable course of bagging the accused’s hands so that they could be forensically analysed later.

145. [185]

     The accused was asked again about the blood on his shirt and stated that he did have a couple of cuts on his hands and was asked about marks on his knuckles and replied that he had been working hard all day, which was a reference to the moving of his property and clothing.

146. [186]

     The accused also said that he did not know what time the deceased had passed away and was asked what he did after he realised that she was deceased, and he replied that he had “walked out here and came to the police station and reported it”.

Expert witnesses

1. [187]

   Crime Scene Officer Nicole Greenway is attached to the Lismore Crime Scene section and provided a statement dated 18 November 2023, which annexes 260 photographs. [18] There is also a computer-assisted draft diagram of the Salvation Army premises. [19] The diagram in Exhibit C is annexed to these reasons.

2. [188]

   CSO Greenway attended the crime scene at 5.05am on 4 January 2023. She photographed items and conducted presumptive tests at the site, which were later the subject of confirmatory tests for blood. She and Sergeant Wicks took swabs to send for DNA analysis.

3. [189]

   The statement of CSO Greenway was provided at a time when some of the findings were only interim. By agreement between the parties, those findings have been updated.

4. [190]

   In accordance with the usual practice, markings were placed in the area to record from where particular items were taken or seen. As can be seen by an examination of the annexure to this judgment, markings A, B, C and D are in the carpark off Holden Lane outside the fence to the soft-floored area. There are no relevant items in the soft-floored area under the awning, also called the children’s play area.

5. [191]

   There is a fence between the children’s play area and the concreted area in which the deceased was located. Moving roughly from north to south, from Holden Lane to Tamar Street, there is reference in the annexure to a “Coles” trolley and there is the marking E on the gatepost of that separating fence. There is then a cluster of markings F, G, H, I and J around air conditioning unit 1; nothing around air conditioning unit 2; behind air conditioning unit 3 was located a doona with blood stains; and east of that area, the deceased was located and there are markings M, K and L.

6. [192]

   Markers A, B and C are positions of passive blood drips in the carpark outside the fenced area and are the blood of the deceased. Marker D is irrelevant as it is a blood stain from Mr Turnbull.

7. [193]

   Markers A to D relate to photographs 81 to 90 of the crime scene photographs and markers A, B and C are passive blood drips measuring 2cm, 1.5cm and 1 cm in diameter respectively.

8. [194]

   Marker F is a blood stain on the northern most shutter on the Salvation Army building wall. The blood stain is approximately 2cm long and it is the blood of the deceased.

9. [195]

   Marker H was unable to be profiled by DNA because the sample was at too low a level but is a passive blood drip on the concrete of approximately 1cm in diameter. Marker J is the side of the air conditioning unit, a tissue, found on the ground, and a small blood stain on the wall. The blood is the blood of the deceased in each case.

10. [196]

    Marker K positions blood stains near the deceased’s body over a total area of 130 x 130 mm and these are the blood stains of the deceased. Marker L is a black Nokia phone from which no DNA result was obtained or available.

11. [197]

    Marker M relates to blood stains on the fence, seen at crime scene photographs 119 to 122 and is approximately 17 mm in length. The deceased is the major contributor of the material but there is also a minor contributor from whom no DNA could be extracted because it was too low for comparison purposes.

12. [198]

    As earlier stated, the deceased’s hands were also swabbed. They can be seen at photographs 37 and 11. Blood was found on both thumbs and all fingers, which is the blood of the deceased, and the accused is unable to be excluded from the DNA as a minor contributor on three fingers. The backs of the hands and palms were not tested for blood but consist of a DNA mix of the accused and deceased.

13. [199]

    The swab from the deceased’s chest and neck was not tested for blood but the DNA was a mix of two. The deceased was the major contributor. The deceased’s dress was significantly stained with blood on both the front, back and on the arms. There are a significant number of photographs of the dress both from the crime scene and from the autopsy photographs.

14. [200]

    The blood stains to the front of the dress are all of the deceased except that shown at crime scene photograph 246 which is a mixture of the accused and the deceased, and that shown at photograph 252 which is only the accused. The blood stains to the back of the dress are all of the deceased.

15. [201]

    Other swabs were taken of the accused’s hands and feet, but these were not tested for blood. The DNA returned a mix profile of both the accused and the deceased.

16. [202]

    The accused’s white t-shirt with a black fox motive was swabbed and there was found to be blood at the red stain that was approximately 100 x 90 mm. The DNA is a mix of at least two individuals, being the deceased and the accused.

17. [203]

    The olive-green cargo shorts, which the accused was wearing on 3 January 2023, but was not wearing in the police station when he reported the death of the deceased, had blood stains on the front and the back. As to the front of the shorts, there were five blood stains, only one of which was the blood of the accused. [20]

18. [204]

    Further, photograph 219 shows the deceased’s blood plus a minor contributor which was unsuitable for comparison. All of the other stains were only of the deceased. On the rear of the shorts there were six blood stains two of which were unsuitable for comparison and all of the others were identified as the deceased.

19. [205]

    At Marker G on the diagram there was a yellow umbrella which had blood stains. Photograph 189, being segment A1, is the blood of the accused while the other six blood stains were all of the deceased.

20. [206]

    The white doona that was found behind air conditioning unit 3 had the blood of the deceased on it plus an unknown individual on one side, and on the other side, there were four blood stains, one being of the accused and deceased that was mixed, two being of the accused and one being of the deceased.

21. [207]

    While CSO Greenway was prepared to express an opinion about some of the drops as being a “passive blood drip”, she readily admitted that she was not an expert in the interpretation of blood stains but is capable of describing their shape, size and distribution.

22. [208]

    It is possible, according to CSO Greenway, that the deceased was injured and standing or moving in the area of the carpark or vice-a-versa. However, CSO Greenway did not find any evidence of further blood staining in the carpark.

23. [209]

    CSO Greenway was unable to give evidence of how old the blood stains were, for which there is no available test. CSO Greenway confirmed that no blood stains were found under the deceased on the concrete or anywhere else.

24. [210]

    A Temazepam bottle with four tablets was found in the accused’s shorts.

25. [211]

    The Crime Scene Officer could not comment on how the blood came to be deposited on the accused’s shorts, on the umbrella, or, it seems, on any item. CSO Greenway confirmed that she could not age the blood and therefore blood stains could have been deposited on different occasions on the umbrella, on the doona or on the grey thongs found at the scene. The blood on the grey thongs, which was confirmed as blood, was not the subject of DNA analysis. There was no analysis of the blue pyjama pants seen in the photographs of the scene.

26. [212]

    CSO Greenway could not recall whether she or any of her colleagues found any alcohol, alcohol packaging or evidence of alcohol consumption in the crime scene. She agreed to the proposition that the various blood stains were different in appearance.

27. [213]

    Plainly, given the findings of DNA in relation to the doona and other items, which disclosed the DNA of third and fourth persons, the DNA and/or blood could have been deposited at various times.

28. [214]

    Before dealing with the evidence of the two pathologists, it is necessary to point out some preliminary facts.

29. [215]

    First, Dr Cala was the pathologist who conducted the post-mortem examination. Professor Duflou did not.

30. [216]

    Secondly, Professor Duflou, at one point, left open the possibility that some of the injuries to the face and, for example, the nose, were a development of the injuries sustained on 26 December 2022. However, no witness who saw the deceased on 3 January 2023, prior to the accused and/or police seeing her in the laneway either alive or dead, noted any facial injuries other than the minor injury displayed in the photographs in Exhibit B. Therefore, as a matter of fact, I reject any notion of a development of wounds received on 26 December 2022.

31. [217]

    Thirdly, no first responders attempted CPR. According to the accused in answer to the questions from the police, he did not suggest that he attempted CPR. As a consequence, there is no evidence that anyone attempted CPR and, indeed, there is evidence that no one did attempt such a course. The ambulance officers and police made that clear in relation to their conduct and the description by the accused of his conduct excludes any attempt at CPR.

32. [218]

    Fourthly, first responders commented that the body was “cold to the touch”. Professor Duflou suggested that this was an unreliable method of assessment.

33. [219]

    No doubt that is generally correct. It is, however, the only assessment that the Court has. The body of the deceased was out in the open at the height of summer in Northern New South Wales. The assessment that the body was cold to the touch was made by persons who are familiar with the feel of a dead body.

34. [220]

    Professor Duflou suggests that the body temperature remains stable for the first two hours after death and thereafter cools at the rate one half to one degree per hour. If the body were cold to the touch, and we are not now referring to hands or feet, then the likelihood is that the deceased had, at that time, been deceased for at least three hours and probably more. That calculates the time of death at some time before or at 9.45pm on 3 January 2023.

35. [221]

    Fifthly, the accused was not wearing his green shorts when he arrived at Ballina Police Station to report the passing of the deceased. There are two possibilities associated with that circumstance together with the amount of blood on the green shorts.

36. [222]

    Either the accused changed his shorts immediately before travelling to the police station, or he changed them some time shortly after the injuries were inflicted on the deceased but before he decided to report the death to police. It may be that the injuries were inflicted but the accused had not realised that the deceased had died and reported to police only after he realised the situation. However, there is no evidence as to when the shorts were taken off and in what circumstances.

37. [223]

    Sixthly, it is certain that the injuries were inflicted at a location in the passageway other than where the deceased was lying when she was found by police. If anything else were the case, the deceased would have bled and there would have been blood on the concrete under and/or around the deceased. There was not.

38. [224]

    Further, given the amount of blood on the dress of the deceased, the inference must be that the blood on the back of the deceased had dried or was not in a position to smear the concrete floor by the time the deceased was in that final position, either lying on her front or back.

39. [225]

    Lastly, neither the police nor any first responders did any act which would have caused the buckle injuries to the ribs. Given that CPR was not attempted by anyone, it must be accepted that the buckle injuries, having been caused after death, were as a result of the accused moving the deceased either from another position or by rolling her over. Other than the reference to the buckle injuries, to which I will come in the evidence of the expert pathologists, none of the foregoing depends upon or is affected by the evidence of the pathologists.

40. [226]

    As earlier stated, Dr Cala performed the autopsy. Professor Duflou accepted that the autopsy was performed competently and appropriately. Dr Cala and Professor Duflou differed as to some of the conclusions that were reached.

41. [227]

    Dr Cala’s initial report is in evidence. [21] Professor Duflou’s report is also in evidence. [22] Dr Cala produced a supplementary report which commented on the opinions expressed by Professor Duflou. [23]

42. [228]

    There are photographs taken at the autopsy, which is normal practice. The crime scene photographs of the deceased in situ show the deceased lying face up on a plastic garbage bag inferentially used for the transportation of clothes and other household goods.

43. [229]

    Photographs 95, 96 and 97 show the face of the deceased front on, from the left side and from the right side respectively. Given the earlier comments in these reasons that there was no development, on the evidence, of the bruising seen in the photographs taken on 27 December 2022, the difference between the state of the face of the deceased on 3 January 2023 and 27 December 2022 is, to say the least, dramatic.

44. [230]

    Photograph 31 shows the feet of the deceased in situ and to the right of her feet a medical kit, prescriptions in a folder, a bandage, a mobile phone and track pants. If the medical kit and bandage were used to tend to the deceased or put there for the purpose of tending to the deceased, the tending must have been envisaged to be done by a person who was not the deceased.

45. [231]

    It would be almost impossible for a person in the condition of the deceased, without reference to the injuries, to reach the medical kit and bandage at her feet: impossible from a supine position; impossible from a prone position; and if not impossible, then extremely difficult given the deceased’s general physical condition, from a sitting position.

46. [232]

    The results of the examination performed on autopsy reveal that the deceased was a 64-year-old female whose semi-naked body was located behind a building in Ballina. The post-mortem scan showed right inferior orbital contusions and right upper temporal contusions, calcified coronary arteries and early aortic valve calcification, gallstones, anterior upper rib fractures and old healing left sided rib fractures. The scan was performed and part of a radiology report, which is also in evidence.

47. [233]

    I now summarise the first report of Dr Cala. The external examination of the body showed, as do the photographs to which reference has already been made, recent bruising to the mid face region, but also to the left mandibular (lower jaw) region and the front of the neck. Various other bruises of varying ages were on the trunk, arms and legs. Some of the arm and hand bruises may have been caused by being grabbed or physically held or restrained, given their size, shape and anatomical location.

48. [234]

    The internal examination showed extensive bruising across the entire face, particularly the right side in the region of the maxilla (cheek bone). There was focal bruising on the anterior surface of the right side of the thyroid cartilage, associated with the fracture of the base of the superior cornu.

49. [235]

    The cause of this injury may have been from focal neck compression which was severe enough to fracture part of the thyroid cartilage. Alternatively, a blow to the front of the neck may have caused this injury. Petechial haemorrhages (tiny dot-like haemorrhages) were not present on the eyelids or elsewhere about the face. Their presence can often be a marker of neck compression.

50. [236]

    The overall pattern of injuries on the face and head was indicative of a sustained assault, with numerous (unknown number) inflicted blows causing bruises, abrasions and lacerations. There was no evidence of skull fracture.

51. [237]

    Subsequent neuropathological examination showed minor areas of acute traumatic subarachnoid haemorrhage on the surface of the brain in three separate areas. There was no evidence of brain swelling or of herniation of any internal structures of the brain, indicating, according to Dr Cala’s first report, that death occurred before these changes could occur. There was an old left thalamic infarction measuring 10 x 2 mm.

52. [238]

    Upper bilaterial buckle type rib fractures were noted but these appear not to have been due to CPR, which was not performed. These fractures may have been caused by a blow or blows to the upper chest. There was no significant haemorrhage in association with these fractures.

53. [239]

    The coronary arteries were calcified but appeared patent. There was an old spontaneously closed ventricular septal defect just beneath the aortic valve, an incidental finding. There were numerous jet-black gallstones within the gallbladder.

54. [240]

    Toxicological analysis showed no alcohol in the blood or vitreous humour. Methadone was detected in blood at a low level of 0.08 mg per litre. Oxazepam was detected in blood at a level less than 0.005 mg per litre. Temazepam was detected in the blood at 0.006 mg per litre. Salicylic acid (aspirin) was detected in the blood at less than 5 mg per litre. In Dr Cala’s opinion, drug toxicity has played no role in this woman’s death.

55. [241]

    As Dr Cala stated in his report:

56. [242]

    The report concludes that Dr Cala will recommend that the cause of death be recorded as CRANIOFACIAL TRAUMA. There is then a summary of post-mortem findings, which I do not recite in full.

57. [243]

    The port-mortem examination found dried blood identified on the face, hands and the medial aspect of the right foot. There was dried blood in the hair of the deceased and there was no evidence of medical intervention.

58. [244]

    The head and neck injuries were specified as involving the region of the mid face from the left ear across the upper cheeks to involve the eyes, the entire nose, the right inferior jaw region, the right ear had extensive red-purple bruising in an area approximately 180 x 80 mm associated with soft tissue swelling from bruising especially of the right ear and cheek. There was a 10 mm length laceration on the right lateral eyebrow.

59. [245]

    There was a 10 mm diameter purple bruise lateral to the left eye; and an L-shaped speckled bruise on the right cheek of 40 x 30 mm. There was a 50 x 30 mm bruise overlying the left side of the mandible (jaw) 60mm to the left of the midline; a 20 mm diameter bruise in the left lower outer forehead; 60 mm below the chin at the front of the neck across the midline was a faint line of linear red bruising of 100 x 15 mm; on the right side of the chin was a line of speckled bruising of 30 x 5 mm; just below the lower lip at the midline was an area of faint bruising 20 mm diameter with two 1 to 2 mm diameter abrasions; and on the inner upper lip at the midline were numerous small bruises and abrasions in an area approximately 30 x 5 mm.

60. [246]

    The injuries to the head and neck were extensive.

61. [247]

    The body was also described in terms of bruising and, importantly, there was overlying the lateral aspect of the left clavicle (collar bone) in the supraclavicular fossa a speckled red-purple 20 mm diameter bruise. That is noteworthy because it and the injury to the shoulder blade otherwise received little attention during the course of the examination and cross-examination of either Dr Cala or Professor Duflou.

62. [248]

    There was also bruising to the right side of the upper chest, further bruising to the right upper chest to the right of the midline and above the level of the nipples; a 40 mm diameter bruise as well; a bruise on the right upper outer buttock and speckled bruising, 60 x 50 mm on the right outer scapular area.

63. [249]

    The left arm was also bruised. The main bruises were at or near the wrist and midway along the upper arm. There were bruises on the fingers; on the left thumb; on the left distal forearm just above the wrist; as stated, on the medial aspect of the left mid forearm 120 mm below the elbow; a bruise on the extensor aspect of the left mid forearm; 40 mm diameter bruise on the posterior aspect of the left upper arm just above the elbow; and a purple punctate area of bruising on the posterior left upper arm extending towards the back measuring 40 x 30 mm.

64. [250]

    The right arm had a number of bruises: the collection of mottled purple-red bruises on the postero-medial aspect of the right upper arm 80 x 40 mm; a faint 20 mm diameter bruise 30 mm above the wrist in the medial aspect of the right forearm; a 30 x 20 mm faint purple bruise on the lateral aspect of the right upper arm 100 mm below the shoulder; a red 20 mm diameter bruise on the lateral aspect of the right forearm 30 mm above the wrist; a faint 20 x 15 mm bruise on the medial aspect of the right upper forearm; and three red 5 mm diameter bruises surrounded by mottled purple bruising 50 x 40 mm on the anterior aspect of the right mid forearm. There was an abrasion on the left knee and an abrasion just above the left knee, together with a bruise in the medial left upper shin. I do not repeat the injuries to the right leg.

65. [251]

    As to the brain injuries, there was total area of bruising that measured approximately 110 mm in diameter. There was also a similar thick haemorrhage on the left side of the scalp from the left ear to the vertex, measuring approximately 100 x 110 mm diameter. There were no fractures of the skull which was of normal thickness. The dura was intact and there was no extradural or subdural haemorrhage.

66. [252]

    There was focal subarachnoid haemorrhage on the surface of both cerebral hemispheres. Limited external examination showed no gross neuropathological abnormalities and no herniation. There was a fresh thick haemorrhage across the entire mid-face but more so on the right side from the right ear to the nose and from the lower right maxilla to the right orbit around the eye in an area approximately 120 x 60 mm. There was also a focal haemorrhage in the left mid-face from the left ear to the lateral left orbit in an area approximately 80 x 50 mm and there was focal bruising over the left mandible 30 mm in diameter.

67. [253]

    There was 30 mm diameter area of haemorrhage medial to the upper lobe of the right side of the thyroid gland, overlying the base of the sternothyroid muscle, the thyroid cartilage and the cricoid cartilage. The hyoid bone was intact and normal. There was a basal fracture of the right superior cornu of the thyroid cartilage with surrounding haemorrhage and the carotid arteries showed no atheroma (fatty deposits causing thrombosis).

68. [254]

    Dealing with the chest, the only remarkable aspects were that there were “bilateral buckle-type fractures of upper ribs”. There were older healing fractures of the left fourth, fifth and sixth ribs and there were no abnormal collections of fluid or adhesions in the pleural cavities. The trachea and major bronchi were unremarkable. There was bloody fluid mixed with brown mucoid fluid in the trachea.

69. [255]

    The coronary arteries were patent along their lengths but there was significant calcific atherosclerotic narrowing in the left anterior descending and circumflex coronary arteries, each greater than 50%.

70. [256]

    Sections were made of the ventricle which were unremarkable and there was no evidence on inflammation, acute ischemia or old infarction. However, the sections of the coronary vessels showed significant narrowing of at least 50% due to atherosclerotic plaque formation.

71. [257]

    The toxicology report was outlined, and no alcohol was detected. As earlier stated, there was 0.08 mg per litre of methadone; less than 0.005 mg per litre of oxazepam; less than 5 mg per litre of salicylic acid; and 0.006 mg per litre of temazepam. No amphetamines, cannabinoids, cocaine metabolites or opiates (other than the methadone) were detected.

72. [258]

    Benzodiazepines were detected and the LC QTOF MS Screen confirmed the presence of the drugs detected otherwise, as would be expected.

73. [259]

    Even though Exhibit T, the supplementary report of Dr Cala was part of the Crown case, it is a response to the report of Professor Duflou and it is more logical to deal with the report of Professor Duflou [24] before dealing with the supplementary report of Dr Cala and the oral evidence of each.

74. [260]

    Professor Duflou, who, like Dr Cala, is a renowned expert in pathology and autopsy, recites the background and medical history of the deceased and the events of 26 December 2022. He recites the events of 3 January 2023, albeit somewhat incorrectly, but not in a manner that would, on its face, deprive the report of its validity.

75. [261]

    Professor Duflou summarises the autopsy findings and, in referring to the CT scan, summarises the injuries as bruising below the right eye and over the right upper temporal region; an incidental likely tumour to the right parotid gland (a salivary gland below the ear); calcification of coronary arteries and aortic valve; and bilateral buckle type fractures of upper ribs consistent with rigorous CPR, and older healing fractures of left fourth, fifth and sixth ribs.

76. [262]

    Professor Duflou summarises the external injuries, which have otherwise been summarised in these reasons, although Professor Duflou gives significantly less detail, and I infer that he considered the other detail was insignificant. He also referred to the bruising in the right upper chest, overlying the left clavicle, on the right buttock and on the right scapula. He also refers to the bruising on the limbs which has already been summarised and the internal injuries which, I emphasise, includes the brain injuries from the report of Associate Professor Buckland.

77. [263]

    Under the heading “Negative trauma observations”, Professor Duflou repeats that there are no petechial haemorrhages, no facial bone or skull fractures, no lesions within cranial cavities and no evidence of brain swelling or herniation. Professor Duflou also repeats the trachea and bronchi findings, including the finding of a mixture of blood and brown mucoid fluid in the trachea.

78. [264]

    Professor Duflou notes the calcific atherosclerotic narrowing of the left anterior coronary arteries, each greater than 50% and, mild patchy atherosclerosis of the basal arterial vasculature. He also summarises that there were areas of thin acute subarachnoid haemorrhage, maximum 10 mm diameter, involving right lateral orbital gyrus, right inferior temporal gyrus and left middle orbital gyrus; confirmed on microscopy. He had already mentioned that there was no brain swelling or herniation.

79. [265]

    Professor Duflou, like Dr Cala, referred to the old area of cystic cavitation involving left thalamus which was confirmed as an old infarct on microscopy and certain degenerative changes. Professor Duflou repeated the toxicology findings. Professor Duflou then summarised, albeit in less detail than has been the summary in these reasons, the findings or opinions of Dr Cala.

80. [266]

    Professor Duflou expresses the opinion that “Dr Cala has performed a highly competent and detailed autopsy which has been documented to a high standard with comprehensive reporting of naked-eye findings and microscopy…. All necessary autopsy-based investigations have been performed”. Professor Duflou notes that he has not personally examined the deceased. He described the injury to the face and head as “in the main typical of interpersonal blunt force violence, and not those expected solely from one or more falls”.

81. [267]

    Professor Duflou agrees with Dr Cala that “the overall pattern is that of a sustained assault with numerous inflicted blows causing bruises, abrasions and lacerations, but no skull fracturing”.

82. [268]

    Professor Duflou also notes the presence of aspirin (salicylic acid), presumes that it is for the purpose of stroke prevention, and expresses the opinion that, as a consequence, the severity of force applied to the deceased’s head was likely not more than moderate in amount, “using a semi-arbitrary scale of trivial-mild-moderate-severe-extreme”.

83. [269]

    The assessment he makes of the force applied to the deceased’s head is, in Professor Duflou’s opinion, supported by the absence of significant bleeding over the surface of the brain. Professor Duflou, after repeating that there was no identifiable brain injury, expresses the opinion that a force that was sufficiently significant to be considered sufficient to cause death from blunt force head injury would ordinarily give rise to fracturing facial bones and potentially of the base and vault of the skull, together with considerable bleeding over the surface of the brain in the form of potentially extradural and subdural haematomas and much more extensive subarachnoid blood. If the assault alone caused death, then Professor Duflou would have “expected to see secondary effects of head injury, such as brain swelling and potentially various forms of herniation (or shifting) of brain tissue”.

84. [270]

    At [22] of Exhibit 1, Professor Duflou summarises the opinion of Dr Cala that despite the absence of traumatic injury to the brain and secondary effects from trauma, Dr Cala considers that the cause of death is craniofacial trauma, and that the absence of brain abnormalities is because death occurred before any traumatic changes could have become apparent.

85. [271]

    After expressing some doubt as to what the abnormalities that would have developed would be, Professor Duflou expresses the view that “a much more likely alternative explanation for a lack of large bleeds over the surface of the brain or various forms of haemorrhage within the brain is that there was no injury to the brain which would reasonably be expected to develop such abnormalities after a delay”. [25]

86. [272]

    Professor Duflou accepts that axonal injuries have been shown to take 30 or more minutes to develop and therefore a survival time of a minimum of 30 minutes would be required to see these abnormalities in the brain. The opinion is sourced.

87. [273]

    Professor Duflou also suggests that localised areas of axonal injury to the brain would not be expected to cause sudden death from brain damage. Although, he accepts that there are rare reports of sudden death in persons in that circumstance and without there being observable traumatic brain injury, but such deaths appear to be “strongly associated with significant alcohol intoxication”. There was no alcohol detected in the deceased.

88. [274]

    He describes the sudden death associated with such studies as sometimes termed “commotio medullaris” but can also be termed “post-concussive apnoea”. Professor Duflou concedes there is very little research evidence for this condition and on autopsy there are usually no identified abnormalities in the brain no matter how detailed the examination may have been.

89. [275]

    The theory for commotio medullaris is that the trauma to the base of the brain is a trauma that affects that part of the brain that regulates the heart and/or breathing and even though the brain injury would be unremarkable, the trauma causes the patient to stop breathing or the heart to stop. The theory, as I understand or infer, has not been proved. [26]

90. [276]

    Professor Duflou dismisses post-concussive apnoea because there is no evidence of severe alcohol intoxication. However, given that the mechanism by which the trauma causes death is not proved, such a dismissal may or may not be appropriate, particularly if there were drug issues instead.

91. [277]

    Professor Duflou notes the absence of fractures to the face and skull and therefore infers that there is unlikely to have been significant bleeding into the air passages, which were not described as obstructed by blood or other material on CT scanning. Further, the lungs and stomach were not described as containing blood. Professor Duflou concluded “that airway obstruction by blood or other fluids is unlikely as a mechanism of death following blunt force injuries to the head and face”. [27]

92. [278]

    Professor Duflou concludes that “although blunt force head injury/craniofacial trauma may have caused death in this case, this would be a most unlikely outcome given the pathological processes identified, and in my opinion should not be given as an unequivocal cause of death”. [28]

93. [279]

    The opinion of Professor Duflou then deals with the neck injuries and other injuries, which I do not extract or summarise.

94. [280]

    Professor Duflou then deals with natural disease. He recites that the deceased had a number of medical conditions, including at least two prior strokes. One of the witnesses suggested that there were two strokes. The evidence seems to suggest that there had only been one prior stroke, but, in my view, nothing turns on that issue and the physical evidence on autopsy disclosed only one.

95. [281]

    Professor Duflou also noted the deceased’s moderately advanced coronary artery disease and that only one stroke was identified on neuropathological examination. He disagrees with Dr Cala’s opinion that the coronary artery disease is “mild”.

96. [282]

    Professor Duflou then expresses the opinion that “[n]either the strokes nor the coronary artery disease as described are expected to have caused death in this case, but it is possible that the deceased’s prior strokes may have contributed to unsteadiness on her feet, and noting her persistent cognitive and communication deficits after the strokes, it is possible these may also have contributed to events leading up to her death”. [29]

97. [283]

    Professor Duflou then deals with the toxicology and noted the presence of methadone, the benzodiazepines (oxazepam and temazepam) and salicylic acid (aspirin). Professor Duflou expresses the view that the oxazepam and temazepam are most likely metabolites of diazepam (brand name Valium) and that the level of these substances is low. They would not be expected to have resulted in death due to overdose either individually or if taken together.

98. [284]

    Professor Duflou notes that both methadone and benzodiazepines are able to be obtained legally only by prescription but are often or sometimes obtained illicitly. This is a well-known factor for anyone who deals in the criminal law.

99. [285]

    Prescribed methadone, while it can be used as a painkiller, is often used as a substitute for heroin. Because methadone has a longer half-life and attaches to the same receptors in the body as heroin, it satisfies the craving for heroin without, in prescribed quantities, causing a “high”. However, in higher quantities than ordinarily prescribed it can also be used to give the effect of any other opiate.

100. [286]

     Dealing with the effect of the aspirin or antiplatelet agents, usually used for stroke prevention and the prevention of coronary thrombosis, Professor Duflou expresses the opinion that they increase the amount of bleeding from any given sight and delay effective blood clot formation, which the body uses to halt bleeding. Many forms of intracranial haemorrhage, according to Professor Duflou, can be expected to be larger and “develop faster” [sic] in a person treated with aspirin than if they were not so treated.

101. [287]

     Ultimately, under the heading “cause of death”, Professor Duflou states that the “cause of death in this case is not straightforward”. He notes the multiple blunt force injuries and that there is no pathological evidence of brain damage of any type which can reasonably be expected to result in death and only limited evidence of possible compressive force being applied to the neck and no direct indications of death being due to a drug intoxication or a natural disease. Professor Duflou would express the view that the “cause of death” is “unascertained”.

102. [288]

     The Supreme Court, in civil proceedings, now utilises concurrent evidence for experts as standard practice. The practice generally discloses far less difference between the experts than might otherwise appear from an initial reading of their respective reports.

103. [289]

     The practice has not been utilised in criminal trials. There are obvious reasons why that is the case. First, there is the burden of proof issue and the necessity for the Crown to complete its case before the defence makes any decision as to whether a case will be presented. That is so even in circumstances where, in accordance with the rules, the defence is required to serve expert reports prior to the trial where such expert reports are to be utilised.

104. [290]

     The second reason is that evidence in conclave generally requires the judicial officer to be more involved in the questioning, which may or may not be an appropriate course when there is a jury trial. Notwithstanding or as a result of the excellent cross-examination by both the Crown and Mr Watts, the level of disagreement between the two experts is not great. There are differences but they are, largely, on issues of detail. It is unfortunate that the experts were not in a position to be able to provide the Court with a joint report and give evidence in conclave.

105. [291]

     Dr Cala was asked to provide comment on the report of Professor Duflou. [30]

106. [292]

     Exhibit S is a report dated 29 April 2025 in which, as stated, Dr Cala comments on the opinions expressed by Professor Duflou. Dr Cala expressed the view that, in his initial report, he expressed the opinion that the cause of death was craniofacial trauma and explained that this meant that the deceased “died as a result of the effects of trauma to the head and face”.

107. [293]

     As to the mechanism of death, and, in particular commotio medullaris (or post-concussive apnoea), its existence is possible notwithstanding the failure at autopsy to demonstrate physical evidence. Dr Cala describes it as “a functional condition diagnosed during life by observing an affected person not breathing due to trauma to the brain stem/medulla”. As a consequence of that cause, the subsequent autopsy findings may be nil or minimal.

108. [294]

     Dr Cala accepts the opinion expressed by Professor Duflou that the amount of brain bleeding (subarachnoid haemorrhage) “would not be expected to be fatal” and other mechanisms to account for death are likely to have occurred. Dr Cala expresses the view that there may be an act of smothering/suffocation to account for gum injuries, but that cannot be proved and there are other possible causes for the peri-oral (around and within the mouth) injuries at autopsy.

109. [295]

     They may have been caused by blows to the mouth region, particularly where dentures are present. Dr Cala cannot comment on whether the deceased fell onto a mattress and remained in that position with an impaired airway. Nevertheless, he cannot exclude an element of positional asphyxia. Nor can he prove it. Like Professor Duflou, Dr Cala does not expect that the effects of the old stroke, based on the amount detected on neuropathological examination, would cause significant mobility issues or cognitive deficits.

110. [296]

     After extracting the passage, extracted above from [42] of Exhibit 1, Dr Cala accepts that the mild subarachnoid haemorrhage would not be considered fatal pathology but reflects head trauma. He also noted that, while the amount of bleeding on the brain was mild, the location of the bleeding sites was such that “backward-forward” movement of the brain has occurred.

111. [297]

     There is very significant scalp bruising bilaterally, indicating multiple blows to the head have occurred and the amount of force used to inflict the head injuries would be at least moderate but may have been severe. Dr Cala notes that multiple blows to the head and face were demonstrated at autopsy and, while Professor Duflou does not consider the force “extreme”, Dr Cala notes that “extreme force” is a term generally reserved for cases such as trauma from motor vehicle or train fatalities.

112. [298]

     Dr Cala expresses the view that the effect of aspirin would not lead to excessive bleeding following trauma. The toxicology testing did not reveal any other anticoagulant medication. He agrees with Professor Duflou that the “cause of death is not straightforward”.

113. [299]

     Dr Cala expresses the opinion that the exact mechanism of death is unclear and there may have been an element of natural disease associated with the assault. However, the amount of coronary artery narrowing, on Dr Cala’s view (and on Professor Duflou’s view), was not severe.

114. [300]

     Further, Dr Cala agrees that the effects of the neck injury do not appear severe but discusses the possibility that the craniofacial trauma, in a person with acutely fractured larynx and coronary artery narrowing resulted in a cardiac arrest and her subsequent death.

115. [301]

     Dr Cala does not agree that the cause of death is “unascertained”, which he says is generally reserved when the cause of death is utterly unknown and expresses the opinion that, “but for the assault, this woman would not have died however the mechanism of death is unclear”.

116. [302]

     Lastly, Dr Cala expresses the view that there may have been a contribution from natural disease, but he cannot be sure of that circumstance. Nor can he speculate as to the effects from smothering/suffocation and/or positional asphyxia, and there is no evidence that any of it occurred.

117. [303]

     Although this was a judge alone trial and the reports of each of the experts were before the Court, there was a degree of reiteration in evidence-in-chief of the opinions expressed in the report. This is understandable.

118. [304]

     Dr Cala was asked about the bruising around the deceased’s eye in photograph 96, to which comment has been made already. He was asked whether the bruising was a “natural development of the black eye”. I have already concluded, based on other evidence, that it was not.

119. [305]

     Nevertheless, Dr Cala expressed the opinion that it was evidence of a fresh assault and said that the “injury around the left eye in December was really just around soft tissue surrounding the eye, but on – in photograph 96, there’s quite a lot more bruising and swelling, with other injuries that weren’t apparent in that photograph that – from December”.

120. [306]

     Dr Cala expressed the view that photographs 96 and 97 (being evidence of that which Dr Cala saw at the examination) show further bruising towards the left ear, down the left jawbone to the right eye and to the right cheek. He also describes swelling to both the right ear and the area just underneath the earlobe going to the top of the neck. There was a 1 cm laceration to the right of the right eyebrow and Dr Cala agreed that wounding to the head and face “can generally result in quite copious bleeding from even quite small wounds”.

121. [307]

     Photograph 95, according to Dr Cala, shows a faint line of linear bruising below the chin and beneath that area, there was “focal bruising on the anterior surface of the right side of the thyroid cartilage and a fracture of the base of the superior cornu”. The fracture is part of the thyroid cartilage that protrudes a bit further than the rest of the cartilage.

122. [308]

     Dr Cala’s report expresses the opinion that the cause for that injury may have been focal neck compression or a blow to the front of the neck, the latter being favoured because it was apparent from the linear mark that there had been some type of application of force in that area. Dr Cala expressed the opinion that it could have been the handle of the umbrella, but he did not think it would be strangulation. He could not exclude that the side of the hand or some other object could have caused the injury. While noting that the bone in the larynx is quite substantial and not flimsy, Dr Cala could not quantify the degree of force needed to create such an injury. The injury would not incapacitate the deceased from vocalising in some form.

123. [309]

     Dr Cala reiterated that the hard punches to the face may have caused the three minor subarachnoid haemorrhages in the brain and although there was quite substantial bruising on the back of the deceased’s head, he could not say that the subarachnoid haemorrhages were caused by such a blow, because such a blow is generally much less forceful than when a person falls and hits the back of their head, causing coup and contra-coup injuries.

124. [310]

     There was discussion by Dr Cala of the possibility of restraint injury and some of the bruising that was, in Dr Cala’s opinion, indicative of restraint around the left and right wrist regions, together with the possibility of the bruising of the upper right arm.

125. [311]

     He agreed with Professor Duflou that the buckle injuries to the ribs are consistent with CPR, but was of the understanding that CPR did not occur. On the findings of the Court, that understanding is correct.

126. [312]

     The Crown put some scenarios to the witness as to the mechanism of death, including: the craniofacial trauma stopping the brain working before swelling took place; positional asphyxiation; and the combination of craniofacial trauma, an acutely fractured larynx and coronary artery narrowing. Dr Cala remained of the opinion that the craniofacial trauma could have stopped the brain working before swelling.

127. [313]

     The survival period for axonal injury to be determined physically on post-mortem needs to be, according to Dr Cala, “several hours”. Dr Cala accepted that positional asphyxiation may have contributed to the deceased’s death as there was some blood and mucoid fluid in the airways that could have compromised her ability to breath normally. While he does not exclude positional asphyxia, Dr Cala cannot prove it based on autopsy findings.

128. [314]

     Dr Cala expressed the opinion that craniofacial trauma in a person with acutely fractured larynx and coronary artery narrowing could have resulted in cardiac arrest and death. In any of the scenarios, Dr Cala is of the view that craniofacial trauma to the face and neck is a substantial contribution to death.

129. [315]

     Dr Cala could not say with certainty when the force may have been applied; it may have occurred over a short period of time but quite violently or during the two-hour cycle with repeated assaults. The fact that the deceased was found at 12.45am and cold to the touch did not alter that opinion.

130. [316]

     Dr Cala estimated that during summer and in a location with “pretty high” ambient temperatures, it may take three or four hours for the body to cool.

131. [317]

     Lastly, Dr Cala said that there was no evidence of any newer infarction in the brain which may have been from a stroke. The thalamic infarction found at autopsy was years old. There were also no fatty deposits in the carotid artery or anywhere else.

132. [318]

     In cross-examination, Dr Cala was taken to the photographs of the deceased in Exhibit B and asked to compare the injuries depicted in those photographs with the injuries seen on examination at autopsy. Dr Cala expressed the opinion that the injuries were significantly worse at autopsy.

133. [319]

     Further, Dr Cala did not consider the injuries from 26 December 2022 to have any relevance to the cause of death on 3 January 2023. He strongly disagreed with the proposition that all of the bruising in the photographs on autopsy may be attributable to the earlier injury. He did however agree that some of the injuries could be related. Dr Cala was not provided with information relating to the earlier injuries at the time of doing the post-mortem examination.

134. [320]

     During cross-examination, Dr Cala also expressed the view that the internal examination of the face showed extensive bruising across the entire face and caused him to conclude that the overall pattern of injuries to the face and head was indicative of a sustained assault. Notwithstanding that opinion, Dr Cala agreed that the earlier injuries or their presence were relevant to know in his assessment of what sort of assault the deceased may have been subjected to on 3 January 2023.

135. [321]

     Dr Cala’s description in his first report of the injuries seen at autopsy included the earlier injuries. However, a number of the injuries are plainly more recent. Dr Cala agreed that if there were a blow to the head on an earlier occasion, his description of the blow incurred and evident at autopsy would include the earlier incurred blow and it would not be relevant to the cause of death.

136. [322]

     Dr Cala continued to express the opinion that a fall or falls could not explain the constellation of injuries observed (which is consistent with the comments of Professor Duflou). However, some of the injuries may be explained by a fall or falls, particularly the fresh abrasion on or above the left knee.

137. [323]

     Asked about medical reports relating to the significant cognitive deficit and mobility issues suffered by the deceased prior to her death, Dr Cala indicated that the effect of the old stroke led him not to expect significant mobility issues or cognitive deficits, but this was an example of the limitations of that which can be revealed by post-mortem examination.

138. [324]

     Dr Cala did not see any evidence of injuries that would cause a limp or mobility issue, but it is not an area that is regularly examined at post-mortem. There was nothing obvious in the lower limbs that made him think that the deceased might walk with a limp and there was no internal examination of the lower limbs.

139. [325]

     Asked about a report from Lismore Base Hospital describing the deceased as having suffered an “acute” left thalamic infarction, Dr Cala explained that “acute” in that context means happening now, in the last 24 to 48 hours. In that sense, “subacute” is somewhat older. Asked about medication recorded in discharge documents from Ballina District Hospital, Dr Cala suggested that this was standard for someone who had suffered a stroke, as is the presence of salicylic acid in the toxicology report.

140. [326]

     Dr Cala agreed that a person taking aspirin is likely to bleed more than the same person if not taking aspirin, but it would be very unusual for that internal bleeding to cause bruising within the body other than in the gastrointestinal tract. If such a person, being a person taking aspirin, was the subject of a blunt force trauma it could cause greater bleeding, but that varies with the individual and it is likely to be slight or moderately more. He agreed that it is standard advice before surgery that a person should cease to take aspirin approximately ten days before the surgery.

141. [327]

     Dr Cala agreed that the lack of significant haemorrhage in association with buckle fractures to the ribs is consistent with the fractures having occurred after death because there was no appreciable bleeding in association with them.

142. [328]

     Dr Cala agreed that he did not address in his supplementary report the lack of evidence of axonal injury. He agreed there was no evidence on autopsy or on brain examination of axonal injury.

143. [329]

     When further questioned about the axonal injury or defuse traumatic axonal injury and the time it would take before becoming apparent on physical examination, Dr Cala said he was referring to traumatic axonal injury and expressed that if somebody were to die from a traumatic axonal injury immediately, and a brain examination were done, there may be no evidence of the axonal injury obvious to the pathologist. “Survival of around one to two hours is generally necessary for pathological changes to become apparent”, he said.

144. [330]

     Dr Cala explained that axonal injury occurs when there is movement of the brain within the skull, usually a rotational turning to one side or the other of a rapid and very forceful type. Dr Cala referred to [23] of his subsequent report which referred to the location of the subarachnoid haemorrhages indicating backward-forward movements of the brain.

145. [331]

     Nevertheless, Dr Cala agreed that the blunt force trauma occasioned three minor subarachnoid haemorrhages and there was no further brain injury observed because no further brain injury was occasioned. He did not agree that the deceased survived for several hours after the injury but accepted that the deceased remaining alive and moving around the laneway for a couple of hours was consistent with neuropathology report and the post-mortem results.

146. [332]

     Dr Cala did not disagree with Professor Duflou’s explanation for the absence of swelling that the injury to the brain may have been sufficiently minor for such swelling never to have occurred from the injury that was inflicted. Dr Cala disagreed that the deceased suffered no defuse axonal injury as a result of the assault because the force of the assault was not sufficient to cause axonal injury.

147. [333]

     Dr Cala agreed that the minimum survival time of 30 minutes or more was needed for axonal injury to manifest and also agreed that the period of 30 minutes is generally accepted by the pathology community.

148. [334]

     Concerning commotio medullaris (or post-concussion apnoea), Dr Cala described it as a mechanism of death which is a brain injury characterised by a sudden, fatal cardiorespiratory arrest following a mild to moderate blunt force head injury, particularly in the presence of heavy alcohol intoxication. Dr Cala accepted that it is a possibility in this case, but he could not prove or disprove it.

149. [335]

     He did not agree with Professor Duflou that it was impossible for death to have occurred in this way because of the absence of alcohol. While alcohol intoxication was common in cases of accepted commotio medullaris, Dr Cala was not prepared to exclude it absolutely just because the deceased was not alcohol intoxicated.

150. [336]

     The bruising, according to Dr Cala, and other trauma around the back of the head was inconsistent with a fall because Dr Cala described the injuries as being “closer to the bottom of the skull, and that’s an unusual location for a fall because of the prominence of the back of the head which usually takes the brunt of the injury”.

151. [337]

     Questions were asked relating to positional asphyxia. Dr Cala reiterated that he had not said in the supplementary report that there was an obstruction of the airway.

152. [338]

     He noted that there was material in the airway and that it was soiled. He did not agree with Professor Duflou’s view that airway obstruction by blood or other fluids is unlikely as a mechanism of death.

153. [339]

     Dr Cala did not include a soiled airway as a possible contributor in the post-mortem report because he could not say exactly where the material in the airway came from, and the material did not obstruct the trachea. The material, in his view, came down from the back of the throat and from the face generally, from the injuries that bled into open spaces such as the airway, and into the trachea.

154. [340]

     As for methadone, Dr Cala described the methadone level found in the deceased’s blood as low. He agreed that methadone could have unpredictable effects on individuals, one factor being whether the individual has developed a tolerance to opioid drugs over time and methadone can have adverse effects such as sedation, stupor or respiratory depression.

155. [341]

     Dr Cala was cross-examined as to a book entitled “Toxic Drugs and Chemicals in Man” by Randal C Baselt, with which work Dr Cala was familiar. One of the tables in the report identified a range of methadone fatalities where the blood level of methadone on post-mortem ranged from 0.06mg/kg through to 3.1mg/kg. Dr Cala agreed that the range encompasses the reading in this case.

156. [342]

     Dr Cala was referred to records from Lismore Base Hospital which showed the deceased overdosed on an illicit drug in 2019 and was treated with naloxone. Dr Cala said that he is not in a position to determine whether the methadone had a significant effect on the deceased, but he is of the view that it is unlikely to have directly caused the death, although not impossible. It is theoretically possible that the combination of methadone, oxazepam and temazepam could have had sedating effect and effected balance and the likelihood of falls. The combination could also have made the deceased more prone to respiratory depression and/or cardiac arrest.

157. [343]

     Dr Cala reiterated his opinion that the cause of death was craniofacial trauma which produced a number of effects on the deceased. When asked to elaborate on those effects, Dr Cala referred to the lack of good health, internal bleedings from injuries to her head and face, external injuries with blood loss, the soiled airway, the possibility of commotio medullaris, and a small to moderate amount of coronary artery disease which may have provoked a cardiac rhythm disturbance.

158. [344]

     Dr Cala agreed that he had not mentioned blood loss in either his first or supplementary reports. He could not estimate how much blood would have been lost and he did not think that the deceased “bled out”.

159. [345]

     Dr Cala refused to agree that it was possible that the deceased died of other causes without craniofacial injuries contributing substantially or significantly to the death. Rather, he stated that “but for the injuries to her head and face, I don’t think this woman would have died at the time she did”. [31]

160. [346]

     In oral evidence, Professor Duflou agreed that there was more extensive bruising and possibly abrasion on the left side of the fact than there is in the photographs of the deceased of 27 December 2022. He did not think that the bruising and abrasion could be explained on the basis of the progression of the injury but that there are additional injuries superimposed on the prior injury of 27 December 2022. Professor Duflou was not asked about the injuries to the righthand side of the face in this respect, which are plainly additional to that which is evidenced in the photographs of 27 December 2022.

161. [347]

     The age of an injury cannot be gleaned from the colour of the bruise. There is, in this case, no yellow discolouration which can suggest a bruise of at least 18 hours old and, also, colour changes in bruises is assumed to stop at the time of death.

162. [348]

     As earlier stated, Professor Duflou agreed with Dr Cala that the injury to the neck is more consistent with a blow than to strangulation. The blow could have been inflicted by an object like an umbrella or with the side of the forearm along the ulnar up to the little finger. He could not favour one explanation over the other.

163. [349]

     Professor Duflou also agreed that the bruising to the right upper arm and to the forearms could be from restraint or, in the case of one of them, possibly two, putting an arm up to prevent being struck. Professor Duflou volunteered that the bruising on the right upper arm could be a bruise that occurred as a consequence of moving the deceased after death, although there is no scientific research on which to base such an opinion.

164. [350]

     Professor Duflou opined that the buckle fractures are consistent with performance of CPR at or about the time of death. There is an assumption that bruising stops at the moment of death, but he has seen bruising develop and extend during the conduct of an autopsy. Professor Duflou did not express an opinion to the converse. In other words, no opinion was expressed that if there were no bruising, the injuries could have been inflicted prior to death.

165. [351]

     Aspirin may or may not have an effect on the capacity and extent of bruising that occurred at or about the time of death. Professor Duflou did not know.

166. [352]

     Professor Duflou attested that it is “very difficult to make that [body temperature] determination simply by touching the body or by feeling the surface of the skin”. Nevertheless, there is usually a plateau in temperature for the first two hours or so after which there is loss of about half a degree to a degree per hour. A person could still feel cold to the touch but there would not be an appreciable decrease in core body temperature until after a few hours.

167. [353]

     In relation to the brain injuries, Professor Duflou maintains his opinion with which Dr Cala agreed, that the lack of swelling, herniation and axonal injury were consistent with the trauma inflicted not having caused any such injury. He repeated that commotio medullaris is extremely uncommon and, in his opinion, unlikely given the zero-blood alcohol level and that one of the witnesses heard the deceased moan after 9pm sometime. A reasonable explanation of no axonal injury at port-mortem is that there simply was no axonal injury.

168. [354]

     Professor Duflou was asked about the inconsistency of passive drip stains of blood to the possibility of commotio medullaris. The response was that, in certain circumstances, it could be inconsistent. The problem is that the only definite injury causing the shedding of blood externally was the laceration to the eyebrow and the injury that caused injury to the base of the brain and hence possibly commotio medullaris could have occurred after the laceration to the eyebrow. While commotio medullaris is, in the opinion of Professor Duflou, unlikely as a cause of death in this case, it is a possibility.

169. [355]

     Questions were asked about the “blockage” to the airway. Professor Duflou suggested that an airway that was soiled but not obstructed is not unusual.

170. [356]

     Further, the Professor could see no indication in the reports of internal bleeding such as from the sinuses. “Looking at the internal photographs, [32] the airways appear quite patent and if there had been inhalation of foreign material into the airway, you would expect to see it in the post-mortem”.

171. [357]

     As to the injury to the larynx, the Professor accepted that there could be circumstances where an injury to the larynx could affect breathing, but none of those circumstances were present in the deceased. There might have been pain and a diminution in the ease of breathing, but not an inhibition to the breathing itself that would contribute to death.

172. [358]

     Further, Professor Duflou dismissed blood loss from the craniofacial trauma as a cause of death. He did note that it can be very difficult to assess at a post-mortem how much blood has been lost.

173. [359]

     Professor Duflou continued to stress that the only shedding of blood occurred from the right eyebrow. However, he did concede that there could have been bleeding from the nose. In any event, the amount of blood loss is limited. There were no collections of blood in the chest cavity and no collections of blood from bruising. The subarachnoid haemorrhage is negligible in terms of the amount of blood involved.

174. [360]

     There are other signs that would be evident if death occurred from blood loss. They include insufficient blood within the blood vessels, pallor of the organs and discolouration of the body.

175. [361]

     Professor Duflou was asked for his opinion on Dr Cala’s evidence that the head injuries acted with the deceased’s pre-existing coronary artery disease to provoke death. Professor Duflou responded that considering the information in Dr Cala’s report, the coronary disease is “at least moderate”, rather than minor. Indeed, Professor Duflou continued and referred to it as “significant heart disease”.

176. [362]

     Professor Duflou could not exclude the possibility of a cardiac arrhythmia given the coronary artery disease and the taking of methadone which is known to be arrhythmogenic. Methadone has the effect of causing arrhythmia in some persons, but it is not inevitable and is relatively uncommon. It can cause death.

177. [363]

     In referring to methadone, Professor Duflou was taken, as was Dr Cala, to the textbook and expressed the view that methadone is particularly dangerous at the beginning of the methadone maintenance program.

178. [364]

     Professor Duflou was referred to the records from Lismore Base Hospital relating to the treatment of the deceased for a drug overdose in 2019. [33] The deceased was treated with naloxone in the ambulance and in the hospital, and Professor Duflou explained naloxone is used to treat opioid overdose and, given her response, notwithstanding that she suggested she had taken “crack” (methamphetamine or cocaine), it is likely that she had taken an opioid because she would not have responded as she did to naloxone if she overdosed on either methamphetamine or cocaine.

179. [365]

     Professor Duflou suggested that, if there is no history of tolerance or habitual use of opioids, a relatively low level of any opioid including methadone can cause respiratory depression. Once you start developing respiratory depression, it can be progressive or it can resolve by itself, depending on the circumstances of the individual case. It could certainly occur in this case, according to Professor Duflou.

180. [366]

     There is also the presence of benzodiazepines which, while individually were not at a high level at all, could make the respiratory depression effect of the methadone greater. The added problem with methadone is that it can have cardiac effects quite separate from the respiratory effects. Such cardiac effects are more common in people who are not habituated to methadone but who are early in the program or in taking methadone.

181. [367]

     Professor Duflou did not think that the pre-existing disease suffered by the deceased had any possible involvement with methadone toxicity as a cause of death. However, later in his evidence, that seemed to alter a little. I will come to those comments shortly.

182. [368]

     As to the question of the possibility of a fall, Professor Duflou expressed the view that the injuries to the back of the head were equally consistent with a fall as with an assault and described the concept of “the hat brim line”, above which injuries are likely to be due to assault and below which injuries are likely due to falls. However, this expression is a statement of statistics, not medicine. It is similar to saying, on seeing a person who has died, that most deaths occur from a heart attack therefore it is probable the person had a heart attack. The foregoing is obviously hypothetical and not necessarily accurate.

183. [369]

     The point that Professor Duflou was making is that most assaults to the head are occasioned by a downward motion to the top of the head. It says nothing about how the assault, or an assault, occurred in any particular case. Thus, if a person is assaulted to the head with a baseball bat, by swinging the baseball bat horizontally to the back of another’s head, the position of the injury could be anywhere on the back of the head. Nevertheless, the physical evidence of the injuries to the back and side of the head could, on Professor Duflou’s view, be the result of a fall.

184. [370]

     As to Dr Cala’s opinion, but for the injuries to the face and head, the deceased would not have died when she did, Professor Duflou expressed the view that it was a possibility that the craniofacial injuries contributed to death and a possibility they did not. The deceased, he said, could have died with no role played by the craniofacial injuries.

185. [371]

     In cross-examination, Professor Duflou was asked about positional asphyxia and dismissed it as a real possibility “because most people can breathe while face down on a mattress”. Of course, in this scenario, there was no mattress.

186. [372]

     Rather, it is a real possibility that the deceased was lying on plastic through which the Professor conceded people could not breathe. Nevertheless, even in relation to a mattress, a person could be further compromised by being face down because of difficulty with breathing and the added effect of methadone.

187. [373]

     As to the 2019 overdose, Professor Duflou was unaware of any blood tests to determine the nature of the drugs ingested in 2019. The Professor could not say whether the deceased had a tolerance or not to opioids in 2019 or afterwards. Such a tolerance depends more on how frequently the drug is taken rather than how much of the drug is taken. The deceased could have used any opioid, including methadone, and responded as she did to the naloxone.

188. [374]

     Professor Duflou stated that methadone was a possible cause of death. This would be so especially if there was no history of habitual use. Cross-examined about the study in the textbook, Professor Duflou did not know how the 59 people in the study were distributed between 0.06 and 3.09 (the extremes in the study). He does know the mean and the median, which, on his analysis, would mean that there were more people under 0.28 than above it who died from methadone overdose.

189. [375]

     As to the coronary artery disease, Professor Duflou reiterated that the deceased’s condition was at least moderate and certainly not mild. He accepts that, on its own, it did not cause death.

190. [376]

     However, he made clear that any physical or mental stress, possibly including the application of numerous blows to the head, would increase the chance of sudden death due to the heart disease. This is particularly so if someone has occlusions that are 50% or greater in their arteries, as well as low normal left ventricular systolic function, abnormal heart septal wall function and mild diastolic dysfunction. It would also be exacerbated by the ingestion of methadone.

191. [377]

     Professor Duflou agreed that the pattern of a sustained assault with numerous inflicted blows causing bruises, abrasions and lacerations but not skull fracturing is evident from the post-mortem. He also agreed that it is a possibility that those injuries, combined with the pre-existing heart disease, could create an arrhythmia and kill the deceased and that possibility could be a substantial contributing cause to her death. [34] Questions were asked of the blockages or partial blockage in the airways and the effect of the neck injury and its cause. Ultimately, Professor Duflou agreed that whatever be the mechanism of death the craniofacial trauma may have been a substantial contribution to the cause of death. [35]

192. [378]

     It is also possible, according to Professor Duflou, that the craniofacial injuries may not have contributed to the cause of death. Professor Duflou did not describe the bruising and swelling and lacerations to the right eyebrow as severe head injuries because they did not represent a risk of life. Further, they did not cause any damage to the brain of any significance. Further again, there are no fractures of facial bones, which would be an indicator of force.

193. [379]

     Lastly, in relation to Exhibit Z, Professor Duflou expressed the opinion that there is ample evidence that people prescribed methadone can and do die from the methadone alone.

194. [380]

     It is necessary to deal with the study to which each of the experts were referred cited in the textbook. [36] The textbook refers to a study and cites it without independently confirming its accuracy. The study is Exhibit Z. [37]

195. [381]

     The study is of drug addicts who had died in Copenhagen city and were analysed for methadone in 1981 and 1989. In 1981, 94 cases were analysed of which 16% were found positive for methadone, and in 1989, 70 cases were analysed of which 37% were positive for methadone.

196. [382]

     Methadone alone was found to be the cause of death in 50% more cases in 1989 than in 1981.

197. [383]

     A drug addict is defined, for the purposes of the study, as a person who abuses opioid and/or analeptics and/or hallucinogens. Persons who have been prescribed the drugs primarily for the treatment of illnesses and have then become drug abusers were not included in the study.

198. [384]

     Only half of the drug addicts found positive for methadone had been under a methadone treatment program. The most frequently occurring other substances were morphine and benzodiazepine. Alcohol was found in 30% of cases.

199. [385]

     Of the methadone positive drug addicts, in 1981, there were fifteen of which six are said to have died from methadone alone. In 1989 there were twenty-six of which fifteen were said to have died from methadone alone. There were three and six in 1981 and 1989 respectively who died from a combination of methadone and other drugs or narcotics.

200. [386]

     The figures on which counsel relied (and on which the experts commented) in dealing with methadone concentrations derive from Table No 2 in the study. It is described in the following way:

201. [387]

     The purpose of the study was a comparison of methadone concentrations in living and dead addicts. Nevertheless, of the 59 persons who had died, with no blood alcohol content, the median was 0.28 mg/kg, the first quartile was 0.19 and the third quartile was 0.43. The mean was 0.43, the minimum was 0.06 and the maximum 3.09.

202. [388]

     Each of the figures was in milligrams per kilogram. Blood is denser than water (depends on an individual’s conditions, but about 5%). One kilogram of blood is slightly less than one litre of blood, but not enough to be significant. As already stated, the methadone concentration for the deceased was 0.08 mg per litre, which, converted to accommodate the density of blood (a factor of 1.05), is approximately 0.084 mg per kilogram.

203. [389]

     Each of Dr Cala and Professor Duflou accepted that as a consequence of the study and figures in Table 2, a person could die with 0.06 mg per kilogram methadone concentration. But the purpose of the study is a comparison with the living addicts. It says nothing about the person or persons who died.

204. [390]

     What is clear is that 0.084 is less than half of the first quartile, so we are talking about a study of 59 in which one or possibly two persons died with a concentration of less than 0.084. We simply do not know. Nor are we aware of what the circumstances were of the person who died at 0.06 mg per kilogram.

205. [391]

     Thus, while it is true that theoretically a person could, and a person has, died from a concentration of methadone which is less than that consumed by the deceased, a death at that concentration is exceptional and, as the experts make clear, most probably relates to a person who has not before taken opioids of any sort on a regular basis or not methadone.

206. [392]

     We know, from the medical records, that the deceased had no known allergies. She was not allergic to opioids, including methadone.

207. [393]

     We also know, or the experts have deduced, that the overdose in 2019 was as a result of the use of opioids. The experts have deduced that because of the effect of the naloxone on the deceased’s then difficulties.

208. [394]

     There is no evidence of when, on or before 3 January 2023, the deceased consumed methadone. We are simply in the dark in that respect.

209. [395]

     We know that the deceased consumed opioids in 2019 and we know that the deceased consumed opioids (methadone) prior to her death. The necessary inference is that the deceased was a user of methadone and/or other opioids.

210. [396]

     There is no suggestion and certainly no evidence that the deceased was a naive user of methadone and every reason to presume that the use of opioids in 2019 continued until the present and explains the presence of the methadone. On the figures in Exhibit Z, even without knowing the circumstances of the persons who died with very low levels in their blood, being those dead drug addicts with a concentration of less than or equal to 0.08 mg per litre, it would be quite exceptional for the deceased to have died from the methadone alone.

211. [397]

     Further, given her previous use of opioids, the conclusion of the Court is that the deceased, on the evidence, is far more likely to be an experienced opioid user. The deceased was mixing in a drug environment, including with the accused.

212. [398]

     The inference of drug environment is significant: the accused acting in such a way as to warrant arrest and initial refusal of bail for drug dealing; [38] the number of phone numbers that included the deceased’s involvement; and the conversations on 3 January between the accused and Mr Daley. In those circumstances, the inference that the accused was involved in drugs on an ongoing basis between 2019 and 2023 is drawn. Thus, an inference that the deceased was not a naive user of opioids or methadone is available and drawn and, in that circumstance, it is most unlikely, and not reasonably possible, for the methadone to be the sole cause of death.

Consideration

1. [399]

   Throughout the above analysis, the Court has thought to make a number of comments as to that which is available on the evidence in the proceedings. It is necessary to comment a little on the evidence of the expert pathologists and the extent to which it is said to be different.

2. [400]

   Each of them, on the basis of the findings in Exhibit Z, suggest that it is theoretically possible for a person with a concentration of 0.08 mg per litre of methadone in their system to die from the methadone. Each of them expressed the view, or implies it, that the person would need to be a new user of methadone or opioids and/or a naïve user of methadone or opioids.

3. [401]

   Each of the experts makes clear that the craniofacial injuries would not, of themselves, result in death. Each of them makes clear that the brain injuries, in so far as they are evident, would not result in death. Each of them expresses the view that there is no physical evidence of a recent stroke or one immediately prior to death.

4. [402]

   The differences between the experts are mostly definitional. Professor Duflou says that axonal injury manifests after a minimum of 30 minutes. Dr Cala agrees with that and makes clear that, in his experience, one ordinarily needs a couple of hours. There is no inconsistency between those two opinions.

5. [403]

   Each of them also expressed the view that there is greater than 50% occlusion of the vessels of the heart and each of them makes clear, of itself, that would not cause death. Pathologists on autopsy often determine the “cause of death” by a process of elimination and inclusion. If there is an obvious mechanism by which the person died, e.g. a bullet wound or knife wound to the heart, the mechanism is relatively easy. Where, as here, the medical reason for the death is not as clear, a process of elimination occurs. It is necessary to deal with the use of terms.

6. [404]

   Doctors and lawyers sometimes utilise the term “cause of death” in very different ways. Similarly, the term “mechanism of death” can be used in two very distinct ways.

7. [405]

   The pathologists in this case often utilised the term “cause of death” to mean the medical reason that death occurred. As earlier stated, in law, the cause of death is any operating and substantial cause of death. If a person is thrown off a balcony of a 20-storey building, the person may die from a heart attack on the way down or die from the injuries sustained when the person hits the ground. These are medical causes of death. In law, the cause of death is the act of the person who threw the deceased off the balcony.

8. [406]

   In relation to the mechanism of death, this can mean the physical mechanism of death (hereinafter, to the extent necessary to refer to it, referred to as “the physical mechanism”) being the mechanism by which the injury that caused the death was inflicted. In contrast, the medical mechanism of death (hereinafter “the medical mechanism”) refers to that which was earlier described as the pathologists’ “cause of death”. An illustration will suffice.

9. [407]

   A deceased may have died from brain injuries sustained. Such is the medical mechanism of death. The brain injury may be inflicted either by a series of assaults to the head or a fall down some stairs, each of which, if it were found, would be the physical mechanism of death.

10. [408]

    Neither the physical mechanism nor the medical mechanism of death is an essential finding on a homicide charge. It is a helpful finding, but not essential.

11. [409]

    Thus, if a person disappears and the body is never found, the perpetrator may still be found guilty of murder, notwithstanding that the physical mechanism of death or the medical mechanism of death is unknown. Such a case may be difficult to prove, but it is theoretically possible and has occurred.

12. [410]

    The issue was discussed by the Court of Criminal Appeal in R v PL. [39] Spigelman CJ said:

13. [411]

    The injury evidenced in the photograph taken on 27 December 2022 was, by comparison with the state of the accused at the time of her death, quite minor. It was an assault that occasioned actual bodily harm. [40] But the severity was nowhere near as significant as the injuries that were evident at the time of death.

14. [412]

    The relationship evidence establishes that the relationship between the accused and deceased was volatile and often violent. It is unnecessary to utilise tendency evidence, and the evidence establishes that the relationship between them was one in which, from time to time, the accused engaged in domestic violence against the deceased. Some of that violence must have been serious. The inference available from the circumstances surrounding the non-attendance of the deceased at her daughter’s engagement and/or wedding suggests that the accused, who admitted the deceased’s non-attendance was “his fault”, had engaged in violence such that the deceased was not able or not willing to appear publicly.

15. [413]

    The evidence of the deceased’s sister, of her daughter, and of those that knew her establishes that the accused was not only violent but also controlling of the deceased in their relationship. While the deceased had a blackened lower eyelid on 27 December 2022, there was no further development of any injury associated with the assault of 26 December 2022.

16. [414]

    By the time the body was examined, the deceased had injuries evidencing multiple blows to the head, both the face and back of the head, the neck and other parts of the body. The injuries have been recited earlier.

17. [415]

    Professor Duflou suggests, even qualifying the injuries by the possibility of development of the injury already sustained on 26 December 2022, that there were multiple blows which cannot be counted and a minimum of five to the face. The calculation did not include the redness in the bridge of the nose nor the significantly greater bruising in the left cheek bone. Each of the pathologists express the opinion that there were numerous blows, which cannot be counted. The damage inflicted was serious.

18. [416]

    I accept Mr Daley’s evidence that at or about 7.03pm, a man was bashing a woman in the side passage of the Salvation Army. Leaving aside any fanciful suggestion, that man must have been the accused, and the woman must have been the deceased.

19. [417]

    It is not clear whether that was the only assault on the night or whether there were subsequent assaults. It matters very little.

20. [418]

    We know the attitude of the accused to being homeless. We know that attitude from the telephone conversation from prison with the deceased. The Crown relied upon the telephone conversation for the threat to kill, which I have treated not as a serious threat, but the telephone conversation also shows an attitude to being homeless, which no doubt impacted the accused.

21. [419]

    The accused and the deceased were rendered homeless by the floods in Lismore. They were provided temporary accommodation in a caravan park. They were ejected from the caravan park because of the violence of the accused. I suspect, consistent with one of the conversations that is recorded, that the accused blamed the deceased for his violence and their ejection.

22. [420]

    It matters little. Motive may render more rational the conduct of people but does not prove guilt. Lack of motive, if proved, may cast serious doubt on guilt.

23. [421]

    No one other than the accused had a motive to bash the deceased. It cannot be seriously suggested that the bashing of the deceased did not occur at the hand of the accused. There may have been other motives. There were statements by the accused that their relationship had finished, and the deceased should be collected, but I am not convinced that those statements, even though reiterated on 22 December 2022, were made at a time that was relevant to this incident or made to be taken seriously. It may be that the deceased proposed move to Melbourne is consistent with a split.

24. [422]

    The totality of the events that occurred in the side passageway of the Salvation Army on the night of 3 January 2023 are known only by the accused. However, it is not appropriate to draw inferences from the failure of the accused to give evidence. [41]

25. [423]

    It is for the prosecution to prove its case beyond reasonable doubt. Nevertheless, the inference that it was the accused who assaulted the deceased is irrefragable and there is no rational or reasonable inference available to the contrary.

26. [424]

    The events prior to 3 January 2023 are not particularly important in the determination of the matters before the Court. Nevertheless, the deceased was seen throughout 3 January 2023 without any additional injuries. This includes the descriptions by Ms Magnay and Mr Leadbetter. While the deceased walked with a limp, the CCTV footage of the deceased does not show her to be particularly unstable.

27. [425]

    As stated, a bashing occurred at approximately 7.03pm. I also accept that at 7.20pm Ms Hudson-Moon saw the deceased lying on the ground motionless.

28. [426]

    Some attention was paid during the course of submissions as to whether the deceased’s back was truly bare or whether the pot plants at the slatted gate may have given that impression. It is fair to say that one would not ordinarily describe the deceased’s skin as dark or brown. However, the colour of her bare back was not the subject of evidence.

29. [427]

    It may well be that the back was not bare, and that Ms Hudson-Moon’s vision of the deceased’s back was obstructed by the pot plants or other items. Nevertheless, I accept that the deceased was not lying on her back because all that could be seen under the gate of the deceased’s head was her hair. As a consequence, she must have either been lying on her side facing towards Holden Lane or lying on her stomach. Ms Hudson-Moon suggests that she may have been lying on a tarp, which may describe the plastic bag that was under the deceased when the police arrived. There was no movement or sound from the deceased at 7.20pm.

30. [428]

    Unfortunately, the attendance of the police at 7.55pm is unhelpful, because of the misunderstanding as to the location of the “bashing”. The police were unable to see past the fence dividing the children’s play area from the carpark and did not investigate that area.

31. [429]

    The only other mention of the deceased was that Mr Leadbetter thought he may have heard the deceased call out, but Mr Leadbetter concedes he may have been wrong.

32. [430]

    While I do not consider that the precise time of death is particularly important in these proceedings, I do not consider the description of Mr Leadbetter of hearing what he thought might have been the deceased at 9.30pm reliable. It is likely that the deceased died at or about 7.20pm. She may well have been deceased when Ms Hudson-Moon saw her. But it may be that she died just after 9:30pm.

33. [431]

    The circumstance that there are passive blood drips at various points in the crime scene does not affect the finding that the assault was the cause of death. A sustained assault of that kind will invariably occur over an extended area; a victim is unlikely to stand still.

34. [432]

    Further, the description of the reaction of the accused to the question asked by Ms Hudson-Moon is consistent with a theory that, after being assaulted, or during the assault, the deceased collapsed onto her knee and died and the accused moved her to where she was eventually located and, not realising that she was dead or about to die, thought to administer first aid.

35. [433]

    He was positioned, according to Ms Hudson-Moon, near her feet and crouched. This was where the unopened medical kit was located.

36. [434]

    Whether the accused moved her to the eventual location or merely rolled her over, when he did move her or rolled her over, she was already deceased, and the movement caused the buckle injuries to the ribs. It is noteworthy that it seems one of the prior assaults had injured her ribs on an earlier occasion and those ribs had commenced to heal. The deceased must have ceased bleeding by the time she was located where the police found her, otherwise there would have been blood where she was lying.

37. [435]

    What then happened is a matter that only the accused can say. He may have thought about how he would deal with the issue; he may have slept. The accused had returned from the pub and, inferentially, had either been drinking or consuming drugs. In either case, it would explain a requirement to sleep.

38. [436]

    There are other explanations for the medical mechanism of death, but once one assesses the possibility of death by methadone alone as fanciful for a person who, on the inferences I draw, has and had used opioids and methadone over some years, the most likely medical mechanism of death is that suggested by Professor Duflou and Dr Cala. Professor Duflou suggested that, given her serious heart condition (over 50% occluded arteries), the stress of being bashed and/or the numerous blows to the head and neck is “the kind of thing that could substantially contribute to a cardiac arrythmia which combined with the coronary artery disease led to death”. [42]

39. [437]

    The contribution of methadone to that process, on the expert evidence of Professor Duflou [43] and Dr Cala, depends very much on the circumstance that the deceased may have been a naive user of methadone. I do not accept that as a reasonable hypothesis.

40. [438]

    However, it may be that the arrhythmogenic attributes of methadone were also a contributing factor, even for a regular user. Ultimately, the question the Court is required to determine in relation to the cause of death is whether there is a reasonable hypothesis that the severe assault inflicted by the accused had nothing to do with the death of the deceased and its timing. Once one excludes the deceased as a naïve user and therefore a methadone overdose as not a reasonable possibility, the expert evidence points irresistibly to the assault being an operating and substantial medical mechanism of death. Frankly, not to draw the inference that the assault was an operating and substantial cause of death would contradict common sense and human experience.

41. [439]

    The above conclusions result in the Court being satisfied of elements (a), (b) and (c) of the elements of both murder and manslaughter. Without in any way being flippant, the deceased is dead, the assault by the accused was a deliberate act of the accused, and the assault and injuries inflicted by him were an operating and substantial cause of death. It is necessary to deal with intention.

42. [440]

    As earlier stated, the accused needs to possess the requisite intention at the time that the assault occurred. The fact, assuming for present purposes it is the fact, that the accused regrets the death of the deceased does not impact upon the possession of that intention.

43. [441]

    In a wholly different context, dealing with the interpretation of a statute and the use in that statute of the word “intention” Gageler J (as the learned Chief Justice then was) said:

44. [442]

    Judges instruct juries that intention is a familiar word and carries its ordinary meaning. It may be inferred or deduced from the circumstances of particular acts and those acts may themselves provide the most convincing evidence of intention. Where the result is the “obvious and inevitable consequence” of a person’s act and the act is done deliberately, one may readily conclude that the act was done with the intention of achieving that result.

45. [443]

    Death was not the “obvious and inevitable consequence” of the assault by the accused of the deceased. Nor, to use the words of Gageler J, was it the “reasonable consequence” of the assault. The Crown does not seem to rely upon an intention to kill.

46. [444]

    The accused has made no admission as to his intention. The question arises as to whether the Court can infer from the assault an intention to cause grievous bodily harm. The injuries are serious. The injuries are far more serious than any injury that occurred on 26 December 2022. There is no doubt that the assault caused grievous bodily harm, but that does not answer the question as to whether the accused had the subjective intention to cause grievous bodily harm.

47. [445]

    There is no doubt that the assault was intended to cause harm; it was intended to cause serious harm. The issue is not whether there was an intention to cause serious harm but whether there was an intention to cause grievous bodily harm or really serious injury. In my view, the injuries inflicted were “really serious”. However, I am not satisfied beyond reasonable doubt that the accused intended to inflict really serious injury.

48. [446]

    I do accept that the accused intended to inflict an injury that was significantly worse than the injury inflicted on 26 December 2022. There may have been a number of reasons for that: the anxiety and depression at being homeless; the irrational blame on the deceased in relation to that circumstance; the fundamental disempowerment suffered by the accused at the time. Yet, notwithstanding the seriousness of the injuries inflicted, those injuries, of themselves, would not have caused death and were not serious enough to be able to cause death, by themselves. Of course, the accused was aware of the perilous health condition of the deceased, but the Crown has not proved that he subjectively considered her health when inflicting the injuries.

49. [447]

    Notwithstanding the view I have that, in all probability, given the seriousness of the injuries, the accused intended to cause grievous bodily harm, I am not satisfied of that factor beyond reasonable doubt. Another reasonable possibility inconsistent with the accused possessing such an intention exists. I do not find element (d) in relation to murder satisfied to the requisite standard.

50. [448]

    Having come to that conclusion, the accused must be found not guilty of murder. However, the assault was an unlawful and dangerous act which a reasonable person in the position of the accused would have realised exposed the deceased to an appreciable risk of serious injury. I find the accused guilty of manslaughter.

Orders

1. [449]

   The Court reaches the following verdict and makes the following order:

   1. (1)

      On the charge that, on 3 January 2023, at Ballina in the State of New South Wales, the accused, Robert Karl Huber, did murder Lindy Lucena contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), the Court finds the accused not guilty.

   2. (2)

      On the charge that, on 3 January 2023, at Ballina in the State of New South Wales, the accused, Robert Karl Huber, did unlawfully kill Lindy Lucena, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), the Court finds the said Robert Karl Huber guilty as charged.

   3. (3)

      The Court will list, after consultation with the parties, a sentencing hearing in relation to Counts 1 and 3 on the indictment.