Chatimba v R

1. [1]

   FREE JA: I agree with Sweeney J.

2. [2]

   N ADAMS J: I have had the advantage of reading the judgment of Sweeney J in draft. I agree with the orders proposed by her Honour. Having regard to the evidence I am not satisfied that the verdict was unreasonable for the reasons provided by his Honour.

3. [3]

   SWEENEY J: Nathan Chatimba, the applicant, was found guilty of the murder of Peni Apikotoa, on 6 April 2021, after a trial by jury before Wright J. He seeks leave to appeal against his conviction on the sole ground that the verdict was unreasonable and unable to be supported by the evidence.

4. [4]

   He requires leave to appeal because his appeal was filed out of time. The Crown opposes him being granted leave because of the delay in pursuing the appeal. I will deal with that issue later. The essence of Mr Chatimba’s appeal is that the Crown did not negative beyond reasonable doubt that when he inflicted stab wounds upon the deceased he did so in self-defence.

5. [5]

   The test to be applied in an appeal asserting an unreasonable verdict was stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The Court must make its own independent assessment of the evidence, paying regard to the jury’s role in determining guilt, and the jury’s advantage in having seen and heard the witnesses, and decide if the jury’s verdict was open on the whole of the evidence.

The evidence in the trial

1. [6]

   Mr Chatimba stabbed the deceased in the vicinity of the home of Cassandra Sanders. Her evidence in the trial, in summary, was as follows.

2. [7]

   Mr Chatimba and Ms Sanders had been in a relationship, which had ended in January 2018. They had two young children together. In the evening of Saturday 11 August 2018 Mr Chatimba arrived at Ms Sanders’ home to collect his older daughter to take her to his place overnight. While Mr Chatimba and Ms Sanders were discussing arrangements for him to see his daughters, Ms Sanders’ phone rang. She did not answer it. The name of the caller was displayed on the phone. It was Benni, Ms Sanders’ name for the deceased. Ms Sanders had met Benni (Mr Apikotoa) through Mr Chatimba as the two men had worked together. She was friends with Benni. (In referring to Mr Apikotoa as Benni in recounting Ms Sanders’ evidence I mean him no disrespect).

3. [8]

   Mr Chatimba saw that Benni was calling Ms Sanders. He was angry and asked her if the Benni calling was the Benni he knew. She confirmed it was. He asked why his friend was calling his “ex-missus” and not him. He asked Ms Sanders if she was “seeing” Benni, and if the children were Benni’s. Ms Sanders told Mr Chatimba that she was just friends with Benni and the children were his.

4. [9]

   Mr Chatimba called the deceased from Ms Sanders’ phone and asked him why he was calling his “ex-missus” and suggested there was something going on. The deceased laughed at that suggestion. Mr Chatimba and the deceased argued on the phone. Mr Chatimba told the deceased to come and the deceased said he was coming. Mr Chatimba wanted Ms Sanders to call the deceased with the phone on loudspeaker but she would not do so. Mr Chatimba called the deceased on loudspeaker and asked him not to come. Ms Sanders said Benni could hear that she was upset and said it was too late, he was coming.

5. [10]

   Mr Chatimba kept trying to have Ms Sanders call the deceased. She said he threw the phone at her head and she sustained an injury to her cheekbone (which was visible in photographs taken by police the next day and exhibited in the trial). Ms Sanders began to cry and asked Mr Chatimba why he did that. He said he did not know and she thought he said he was sorry.

6. [11]

   After the phone calls finished Mr Chatimba was in the house with their older daughter. Ms Sanders was holding their younger child, a baby. She asked Mr Chatimba not to fight, in part because she feared losing her children to “DOCS” (Department of Community Services). They had a dispute over whether she should put a child’s car seat in his car or hers.

7. [12]

   There was a box in the hallway containing kitchen utensils. Ms Sanders heard Mr Chatimba going through the box. (The significance of this is that on the Crown case Mr Chatimba took the knife with which he stabbed Mr Apikotoa from that box.)

8. [13]

   Ms Sanders and Mr Chatimba were outside still disagreeing about whose car she should put the child seat into. She saw Benni coming up the driveway. She said Benni stopped just before the gate. He said nothing, just stood there. Mr Chatimba was holding his older daughter. He handed her to Ms Sanders and walked to just past the gates where Benni was.

9. [14]

   Ms Sanders went towards the front door. Before she closed the front door Mr Chatimba had approached Benni and she could hear words exchanged in a “tone” and they were fighting.

10. [15]

    She saw what appeared to be Mr Chatimba throwing downward punches at Mr Apikotoa. He and Benni were fighting; there was an altercation. She saw what appeared to be punches from Mr Chatimba, about twice she thought, then she went inside and shut and locked the door. She was crying and the children were crying and screaming.

11. [16]

    She said she was not sure how much time passed but it did not seem that long when she heard a loud knocking or bashing on the door and Mr Chatimba was saying “let me in”. She opened the door and stepped backwards. Mr Chatimba was standing in the doorway with a knife. He was holding it up and there was blood on the bottom of the knife. He walked towards her holding the knife.

12. [17]

    Ms Sanders said she did not see what happened to the knife. Mr Chatimba walked away a few steps then came back. He was trying to take their older daughter from her and she was resisting him. Mr Chatimba was able to pull the child from Ms Sanders’ hold. He got into the car he had driven there in and drove off with his daughter on his lap.

13. [18]

    Ms Sanders said before Mr Chatimba left she asked him what he had done, or why, and was Benni okay, and he said “I did that for you”, “I killed somebody for you”.

14. [19]

    She stayed outside in the driveway holding her younger child and crying. The neighbours asked her if she was alright. Police arrived and spoke with her.

15. [20]

    While police were there Mr Chatimba kept calling her and telling her to come and collect their older daughter. She told him police were there. He said her children would be taken from her.

16. [21]

    In cross-examination Ms Sanders agreed that Mr Chatimba and the deceased worked together in scaffolding and were friends.

17. [22]

    She said that in about October 2017 Benni and a person named Alyce came to her house because she had told Alyce that there had been some domestic violence from Mr Chatimba. She said Alyce told her that Benni said to Mr Chatimba that if he hurt or touched Ms Sanders again he would come and “sort him out like a man”. Ms Sanders did not hear Benni say that to Mr Chatimba.

18. [23]

    She did not recall Mr Apikotoa saying on the phone to Mr Chatimba “you’ve got enough enemies” or “press the button” (to end the call). She said Mr Chatimba was “egging on” Mr Apikotoa to come by continuing to accuse him of something going on with Ms Sanders.

19. [24]

    She said Benni asked if she was alright and said he was coming. She asked him not to come. He said something like “I’m sick of it. I just want to sort it out”.

20. [25]

    She agreed that when she was first asked by police at her home on the night of 11 August 2018 from where Mr Chatimba obtained the knife she said she did not know.

21. [26]

    She agreed that in her first statement to police made on the night of 11 August she did not refer to seeing Mr Chatimba and Mr Apikotoa fighting. She agreed that in the conversation with police at her home she said she did not see the two men fighting. She maintained in her evidence at trial that she saw them fighting. She said she was upset and in shock at the time she spoke to police on the night of 11 August and when she made her first statement that night because it was a traumatic event.

22. [27]

    She agreed that in her second statement made on 24 August 2018 she said she saw the two men “got into a bit of a punch up”. She said she did not see any punches coming from Mr Apikotoa. She saw “straight away” two downward punches from Mr Chatimba.

23. [28]

    She agreed that in the first conversation with police on the night of 11 August and her first statement made that night she did not say that Mr Chatimba had said “I killed somebody for you”. She agreed in her first statement she said Mr Chatimba did not say what happened. She said she did her best on the night given what had happened, which was traumatic for her. She agreed that in her second statement of 24 August she said when Mr Chatimba came into the house holding the knife with blood on it he said “I just stabbed someone for you; I did that for you.”

24. [29]

    She said Mr Chatimba said both “I stabbed someone for you” and “I killed someone for you”.

25. [30]

    She said she believed Benni came to her place to see if she was alright because he was worried.

26. [31]

    She said on the night of 11 August she feared losing her children to DOCS because there had been a violent incident at the house.

27. [32]

    I note that when the phone calls occurred between Mr Chatimba and Mr Apikotoa, Mr Apikotoa was drinking at a hotel nearby. I will deal with the evidence of witnesses who observed him at the hotel, because it was the defence case that Mr Apikotoa left the hotel angry and went to Ms Sanders’ home intent on assaulting Mr Chatimba.

28. [33]

    Mr Apikotoa was at the hotel from about 2:15PM until about 6:20PM.

29. [34]

    Nathan Drummond, the hotel duty manager, knew Mr Apikotoa from the hotel, and knew him as a nice person who never caused any trouble at the hotel. He had never seen Mr Apikotoa violent in the hotel or grossly intoxicated.

30. [35]

    Mr Drummond was on duty at the hotel on 11 August 2018, and arrived at about 5:30PM. He saw Mr Apikotoa, and spoke to him after a while. When he first saw him he seemed a bit distant and he was repeatedly messaging on his phone. When Mr Apikotoa left he seemed to be leaving abruptly and a little bit upset. He said he was fine, he had to go and see a friend and he would be back shortly, or in an hour or so. Mr Drummond did not observe Mr Apikotoa to be intoxicated.

31. [36]

    Karren Grant was at the hotel on 11 August 2018. She knew Mr Apikotoa. She saw him on the phone, after which he said he had to go somewhere to help a friend out. He said everything was fine. He left the hotel. His mood had not changed from calm. He did not appear highly intoxicated or aggressive or angry.

32. [37]

    Ms Grant’s husband Darren Morrisby was at the hotel on 11 August 2018 and saw Mr Apikotoa. Mr Apikotoa was on the phone talking to somebody. After the phone call he said the person was having a problem and he was worried about the kids. He said he thought the friend’s ex was coming over to bash her. When Mr Apikotoa left he seemed fine and not intoxicated.

33. [38]

    Rachel George gave evidence that on 11 August 2018 she was in a relationship with Mr Apikotoa. On that day she was working at the hotel. She finished work at about 4PM and had a drink with Mr Apikotoa and his friends. She and Mr Apikotoa had plans to go out to dinner. She went home to prepare to go out. Mr Apikotoa rang her and said some other people were coming to dinner. She became annoyed because she had thought it was just the two of them. He became annoyed by her attitude and told her not to come to dinner. Afterward she attempted to contact him by calls and text messages. He answered once. He seemed a little upset. He told her to “fuck off”. That was not how he usually spoke to her. He seemed angrier than he normally would be. She said he was not a violent man.

34. [39]

    Andrew Folan was part of the group at the hotel. He said when Mr Apikotoa left the hotel he seemed fine and not intoxicated. He did not know him to be aggressive.

35. [40]

    Another witness Cameron Lewis saw Mr Apikotoa at the hotel on 11 August. He said he did not appear intoxicated. He did not know Mr Apikotoa as an aggressive person.

36. [41]

    There was CCTV footage from the hotel which showed Mr Apikotoa at the hotel. In the footage he did not appear intoxicated. As he was leaving he shook hands with people he had been sitting with and he did not walk hurriedly as he walked through the car park.

37. [42]

    David Lindsay was a friend of Mr Apikotoa. He was at the hotel on 11 August and saw Mr Apikotoa there. They agreed to have dinner that night. At about 6PM Mr Lindsay went home to obtain a jacket for dinner and then went back to the hotel and picked up Mr Apikotoa and they began to drive to dinner. As they were driving Mr Apikotoa’s phone rang and he answered it. Mr Lindsay could hear a girl and a man in the background and a “lot of commotion” going on, though Mr Apikotoa’s phone was not on loudspeaker. He could not hear the words being said, but it sounded like a fight was going on and the girl was in distress. The male voice on the phone sounded angry. The female voice sounded scared.

38. [43]

    Mr Apikotoa said “Put him on the phone, where are you?” and to call the police. He sounded concerned and a bit angry himself. His voice was fairly loud.

39. [44]

    When the phone call ended Mr Apikotoa asked if they could go back to St Clair because he had to help someone, a friend. He said “this girl’s in trouble”.

40. [45]

    They drove for 2 to 3 minutes to St Clair with Mr Apikotoa directing. When Mr Apikotoa got out of the car he put his wallet, phone, keys and sunglasses in the back seat of the car.

41. [46]

    Mr Lindsay drove off, as Mr Apikotoa had told him to do, then he drove back and parked and waited.

42. [47]

    He heard sirens. Someone came to his car window and asked if he had dropped someone off there. He drove off and went home. He said that was because he did not know what was going on and did not want to be a part of it. Before he left he saw a police car drive into the street. He thought Mr Apikotoa might have done something wrong because he had seemed very angry.

43. [48]

    In cross-examination Mr Lindsay said Mr Apikotoa was yelling in an angry tone when he was on the phone. He said to a male on the phone something like “If you do anything to her I’m going to get you.” When Mr Apikotoa got out of the car he did not appear to be in a hurry.

44. [49]

    Mr Apikotoa was reported in the autopsy report to have a blood alcohol level of 0.186g/100ml.

45. [50]

    Shane Stonestreet gave evidence that he lived in the house next door to Ms Sanders.

46. [51]

    On the evening of 11 August 2018 he was at home. His mother said there was a fight outside, so he went outside to about halfway down his driveway. From there he had a view looking down the street. There was nobody obstructing his view. He saw Mr Chatimba, whom he knew to say hello to, chasing someone down the road. He did not know the person being chased. When he first saw Mr Chatimba he was halfway in the cul-de-sac chasing the man who was backpedalling away, running backwards with his hands up. Mr Stonestreet demonstrated the man’s hands as raised at right angles to the elbow, level with his head. When he first saw them the two men were a metre away from each other. A little further down the cul-de-sac there is a streetlight and on that night there were bins near the streetlight. He saw a reflection of a knife under the streetlight. Mr Chatimba was holding the knife. As Mr Chatimba was chasing the man Mr Stonestreet saw a flash of light and a swinging motion, which he demonstrated with his right hand made into a fist, bent at the elbow and swinging downwards. The man stumbled back over the bins and Mr Chatimba turned. At the same time Mr Stonestreet turned around and went inside. He said when Mr Chatimba was swinging the knife he was swinging it towards the male and they were right next to each other. The man was facing Mr Chatimba with his hands up and backpedalling. Mr Stonestreet saw Mr Chatimba swing the knife at least twice. He said it was a silver bladed knife and he demonstrated the size, which was estimated as 25cm.

47. [52]

    Mr Stonestreet said the distance between where he was standing and the streetlight was about 50m. He went inside and locked the doors. At some stage he came out of his house when they heard the car (which Mr Chatimba had driven to Ms Sanders’ place) speed off. When he went outside he was talking to the neighbours and they were trying to look for the man. They saw blood trails on the road. Someone called out where the man was and by then the police had already arrived.

48. [53]

    A video recorded interview between police and Mr Stonestreet was played to the jury. It was in similar terms to his evidence-in-chief. I have watched that video recording. It demonstrates that the cul-de-sac was not very big and the distance from the end of the driveway of Ms Sanders’ place to the bins was not a long distance. Mr Stonestreet gave his account in the video recording in a straightforward manner.

49. [54]

    In cross-examination Mr Stonestreet initially said that his mother’s car and his car were not parked in the driveway on the night of 11 August 2018. When shown photographs said to have been taken on the night he agreed the photo showed his mother’s car and his car parked in the driveway. He agreed that was how the cars were parked at the time he saw the fight. There was also a third vehicle, a ute, parked next to the driveway. He said Mr Chatimba was charging, or running, until he reached the bins, which took about 4 to 5 seconds, and he saw the knife raised for about 1 or 2 seconds .

50. [55]

    He said after the car sped off and he came outside he was talking to the husband of his neighbour, Muna Haddad. Ms Haddad’s husband did not tell him what he had seen. He had no other discussions with any other neighbours about what they had seen or what had happened that night.

51. [56]

    Sara Lord, Mr Stonestreet’s partner, gave evidence that at about 6:20PM on the evening of 11 August 2018 she was outside at her car when she heard Ms Sanders and Mr Chatimba fighting. She heard Ms Sanders saying loudly “just stop, just stop, just leave it”, and she heard the door slam shut. Later in the evening Sarah Stonestreet, Shane Stonestreet’s mother came and said “They’re fighting”. That was about half an hour after she had heard the noise at the neighbour’s house. They went outside. Shane went further than she did. She could hear a scuffle. Then Shane said somebody had a knife. She went inside, obtained her phone and called 000.

52. [57]

    Sarah Stonestreet gave evidence that on the evening of 11 August 2018 when she was unloading groceries from her car she heard Ms Sanders say “Stop it Nathan”. Later that evening, while inside, she heard someone arguing from next door. She heard a male voice say “Do you want to have a go?” and there was a scuffling noise. It sounded like two men arguing. The arguing was intensifying and she told her son “They’re fighting”. She went to call 000.

53. [58]

    In cross-examination she said that the words “Come on, do you want to have a go?” were said in a loud voice. She heard sounds of a scuffle, a physical fight. She said when Shane came back into the house he said he had seen somebody with a knife. She agreed that in the transcript of the 000 call, in answer to the operator’s question “So did he actually see a knife?” she said “He didn’t actually see it but there’s people fighting out there”.

54. [59]

    Muna Haddad gave evidence that she lived next to Ms Sanders’ place (on the other side from the Stonestreets). She said on 11 August 2018 at around 6:15PM she was at home resting when she heard a noise from outside, a female voice crying and screaming, coming from the home of the next door neighbour whom she knew as Cassie. She went into her hallway and heard a female voice screaming. She looked outside her front door and saw Mr Chatimba standing about 5m away in her driveway. He said “call the ambulance, I stabbed my brother-in-law”. He was holding a knife above his head, which she demonstrated as above her shoulder at her own head height. She called 000. Then she walked outside and saw a silver car with an orange stripe take off very fast. Before the car took off she heard Ms Sanders screaming “my daughter, my daughter, my daughter”.

55. [60]

    Police identified a blood drip trail which began where the driveway of Ms Sanders’ home at No. 7 connected to the cul-de-sac and finished at the residence, No 1, where the deceased was found on the front veranda. The blood was analysed and identified as the deceased’s.

56. [61]

    Police found in a box in the hallway of Ms Sanders’ home a knife, about 30cm in length, silver, with what was believed to be blood on the tip and blade. It was the Crown case that Mr Chatimba had taken the knife from that box and returned it to the box after the stabbing.

57. [62]

    Dr Istvan Szentmariay, the forensic pathologist who conducted an autopsy of Mr Apikotoa, gave the following evidence, and part of a report he had prepared was tendered. Mr Apikotoa had six stab wounds, including a superficial cut on the back of his right hand, a superficial cut over the dorsal ulnar aspect of his right hand and other superficial wounds. Two of the stab wounds were on his upper left chest, one on his left shoulder, one on his inner left forearm, one over the lateral aspect of his right forearm, and one on the back of his right wrist. One of the chest wounds, numbered wound 2, estimated at 6cm deep, involved cutting an artery in two, and it being a vessel relatively close to the heart it bled significantly. Dr Szentmariay said this was one of the wounds that caused Mr Apikotoa’s death. The stab wound on the front of the left shoulder, numbered 3, estimated at 7.5cm deep, involved a partial cutting of a major artery running from the heart. That wound contributed to Mr Apikotoa’s death. The stab wound on the inner aspect of Mr Apikotoa’s left forearm, 2cm deep, and the stab wound on the inner right forearm, 8cm deep, were both nearly vertical and both involved injury to the soft tissue but no damage to arteries. The stab wound over the back of the right wrist exposed the underlying tendon and soft tissues.

58. [63]

    Dr Szentmariay said that sharp injuries to both forearms, the back of the right wrist and the back of the right hand, were “defensive type” injuries, by which he meant the injuries were inflicted when the deceased tried to defend himself, not “typical attack type injuries”.

59. [64]

    In cross-examination Dr Szentmariay agreed that the numbers he gave to the stab wounds did not indicate the order in which the wounds were inflicted, which he could not determine by examining the deceased’s body.

60. [65]

    He agreed with an opinion expressed by forensic pathologist Professor Duflou, that no more than moderate force was required to cause sharp force injuries in Mr Apikotoa. He agreed that none of the stab wounds involved the knife coming into contact with bone. He understood that the knife used was 33cm long, with a 20cm blade.

61. [66]

    He agreed that from the depths of wounds 1 to 3 and that the knife did not hit any bone structures, the causation of those injuries could be consistent with the accused jabbing the knife forward in a way to keep someone away from him and retracting it.

62. [67]

    He was asked about an opinion of Professor Duflou’s that it was possible that the injuries were “classic defensive injuries”, sustained when a person attempts to defend themselves by putting up their arms in a defensive posture, and

63. [68]

    He agreed that injury number 4 might be consistent with an arm moving forward in an offensive manner as well in a defensive manner. When asked if injury number 5, near the elbow, to the back of the forearm could be consistent with someone moving their arm forward in an offensive manner and being struck with a knife he said “I would have to stretch my imagination, but I would say yes, you know, but I am really stretching myself.”

64. [69]

    He was asked about injury 6, to the back of the wrist “… if someone is moving their arm forward and there is a knife between them and the person they tried to hit, that might cause a cut?” He said:

65. [70]

    Dr Szentmariay agreed that the superficial cuts to the hand were more consistent with “classic type defence injuries” by someone warding off a knife.

66. [71]

    He agreed that a person may not feel pain immediately and it was a possibility that Mr Apikotoa could have continued to throw punches after stab wounds 1, 2 and 3 were inflicted, if he was throwing punches. He agreed it was possible that Mr Apikotoa could have run about 95m (from No. 7 to No. 1) after the two fatal stab wounds were inflicted.

67. [72]

    In re-examination Dr Szentmariay said the extent to which a knife may penetrate the body may depend on a number of factors, including the sharpness of the knife, the width of the blade, the clothing worn by the deceased and the dynamic interactions between the two people in an altercation, such as if the deceased person is moving away from the knife as the knife is thrust towards him that may impact on the depth at which the knife penetrates his body.

68. [73]

    Professor Johan Duflou, forensic pathologist, gave evidence in the case for the accused. He said the degree of force required to cause injury number 1 was dependent on the sharpness of the tip of the knife. Once the tip of the knife penetrates the skin, the other structures within the body provide no greater resistance than skin, unless the knife strikes bone. The knife will have greater difficulty going through thick clothing. The other matter determining the force required to cause an injury is the relative movements of two people involved in an altercation. If a pointed knife goes through skin and soft tissue, probably at most a moderate degree of force is required.

69. [74]

    In wound 2 Professor Duflou said that the knife moved through soft tissue and muscle and did not strike bone or was not stopped by bone. The depth of those two injuries was consistent with a knife with a 20cm blade not fully penetrating the body and a reason the knife stopped was because it was either withdrawn or the person who was stabbed moved away. The wounds would not exclude the deceased attempting to strike the accused and the accused making a stabbing motion trying to keep the deceased away. The wounds are consistent with someone striking out and withdrawing the knife rapidly without applying full force to the forward motion of the knife.

70. [75]

    Professor Duflou said it would be reasonably possible for someone with wounds 1, 2 and 3 to travel up to 96m after being stabbed. A person may or may not realise immediately that they have sustained a stab wound. They may or may not feel immediate pain. Long term the deceased’s wounds would have been painful. He could not say how much pain the deceased experienced.

71. [76]

    A blood alcohol level similar to that of the deceased can have an anaesthetic effect. He could not say to what extent the deceased was anaesthetised by the alcohol he had consumed.

72. [77]

    He said the wounds on the deceased’s right forearm are possibly both offensive and defensive injuries. Defensive wounds may occur if the deceased had been stabbed while putting his arms up in a defensive posture, or the deceased may have tried to punch the person holding the knife stationary while the deceased’s hands and arms moved. There are some defensive wounds which are quite characteristic but these wounds could have occurred in either scenario. He could not say if the injuries on the deceased’s hand and wrist were occasioned as a result of offensive or defensive actions of the deceased; both are possibilities. Physical altercations are highly dynamic, making it almost impossible to determine the precise mechanism of an injury.

73. [78]

    The injury on the back of the deceased’s left shoulder did not indicate whether or not he was struck from behind. It could have been caused by a slicing motion across the back or the top of the shoulder.

74. [79]

    He did not disagree particularly with the evidence of Dr Szentmariay.

75. [80]

    In cross-examination he said that it is difficult to tell from the deceased’s wounds how the wounds were inflicted. He said it was certainly possible that the deceased’s injuries were classic defensive injuries sustained while he attempted to defend himself by putting his arms up in a defensive posture. However it is also entirely possible that such injuries were sustained as a result of the deceased using his arms and fists in an offensive way.

76. [81]

    He agreed the term “moderate amount of force” is inexact.

77. [82]

    A pharmacologist, Michael Robertson, gave evidence in the defence case. He said at a blood alcohol level of the deceased’s, cognition would be adversely affected. He said alcohol may induce aggression and violence in a susceptible individual and is particularly likely in people with aggressive tendencies and often with a history of alcohol-related aggression. He could not say with certainty how alcohol specifically affected the deceased.

78. [83]

    There were agreed facts in the trial which the accused relied on as demonstrating a tendency of the deceased. The Agreed Facts were that on 17 September 2015 the deceased was drinking with friends at the Blue Cattle Dog Hotel and acted aggressively towards a man in the car park whom he knew. He spoke to him aggressively then punched the man in the mouth, causing the man to fall backwards onto the ground. As the man sat up the deceased punched him again, to the forehead. He pleaded guilty to an offence of assault. The accused relied on that evidence as indicating a tendency on the deceased’s part to engage in violent confrontations after consuming alcohol at the hotel.

79. [84]

    Katherine James was in a relationship with Mr Chatimba in August 2018. She gave evidence that after Mr Chatimba left their home on 11 August to go to Ms Sanders’ home to collect his children, he called her and said he was going to put the children in the car and come home but he had received a call from Benni and Benni was coming over. She said she told Mr Chatimba not to do anything, not to “fight with him”, just “put the kids in the car and come home”.

80. [85]

    She said a short time later she rang Mr Chatimba. She heard Ms Sanders’ screaming and Mr Chatimba knocking on the door telling her to open [it]. She could not recall anything more about that conversation.

81. [86]

    At some stage after that phone call Mr Chatimba arrived home, with his daughter. Mr Chatimba told her that Benni hit him and almost hit his daughter. He told him to stop and he did not. He said Benni took off and he told his neighbours to call an ambulance. She said Mr Chatimba seemed shocked; he was very quiet and distant. She said she told Mr Chatimba to take off the Rabbitohs jersey he was wearing because it had blood on it. She put it in the washing machine.

82. [87]

    She said Mr Chatimba had never been violent towards her and was not, in her assessment, a violent man.

83. [88]

    In cross-examination she said that in a phone call with Mr Chatimba on 11 August he said he was coming home but he had a problem, that Benni had called and was “going off” on the phone and he said he was coming over.

84. [89]

    She said when Mr Chatimba got home he told her where he had been hit by Benni when he was holding his older daughter. He showed her an injury to his eye and she took a photo of it.

85. [90]

    At 2:20AM on 12 August, a police officer took photographs of Mr Chatimba at Penrith police station. The photographs were exhibits in the trial. The officer noted when she took the photographs that Mr Chatimba had no visible injuries to his face, hands or arms. Detective Sergeant Fokes, who interviewed Mr Chatimba on the night of 11 August, also saw no injuries on his face.

Mr Chatimba’s interviews with police

1. [91]

   Mr Chatimba participated in two interviews with police, both on 11 August 2018. The first took place at his home and began at 8:45PM. In that interview Mr Chatimba said, in summary, the following. He was dropped off at Ms Sanders’ place to pick up his daughters. Ms Sanders received a phone call from “Benni” [Mr Apikotoa] his mate. He said to Benni:

2. [92]

   He said Mr Apikotoa said “you don’t want to make new enemies”, “just press the button.”

3. [93]

   He said Mr Apikotoa said “put Cassie on the phone” and he said, “if he does anything to you… I’ll come to you right now.”

4. [94]

   Mr Chatimba said he and Ms Sanders started arguing. He was asking her “what’s goin’ on?” and Mr Apikotoa kept ringing. So he decided to leave. He grabbed his daughter to go outside, then realised he could not drive so he rang Katherine [James] to pick him up. As he was waiting for Ms James to pick him up Mr Apikotoa kept on ringing. So Ms Sanders rang him and told him “don’t come here ‘cause we don’t want any trouble here.”

5. [95]

   He said when Mr Apikotoa arrived he came up the driveway. Mr Chatimba was holding his daughter and said “Ben, we’re mates. This shouldn’t be happening.” He told police that he boxed.

6. [96]

   He was holding his daughter on his side and he got “connected right in the eye.” He said “Man, what the hell? What are you doin’ that for? We supposed to be mates.” He said Mr Apikotoa started swinging some more so he ran back inside because inside they were cleaning all around the house. He said Mr Apikotoa was going to grab a knife so he managed to kick him. Mr Apikotoa grabbed the knife first, he was going to grab it, so he kicked it, kicked him, and then Mr Apikotoa started running. Mr Chatimba said “mate, just stop. We need to talk”. He said Mr Apikotoa kept on running, tried to lunge at him again then he “lunged onto me, and yeah, it kind, kind of got in him.” He said when Mr Apikotoa came at him, he was holding the knife in his hand. He did not think Mr Apikotoa would really keep coming. He said Mr Apikotoa kept on running. Mr Chatimba told Mr Apikotoa he was bleeding. He was trying to help him. He kept on running off. So he had to go and knock on the neighbour’s door and said “just please someone ring an ambulance ‘cause, yeah, I just stabbed my friend.”

7. [97]

   He said Mr Apikotoa was “gunna grab [the knife], he grabbed it, so I had to kick him so he can drop it, so I grabbed … then I didn’t think he, he realised I’m holding it.”

8. [98]

   He said “it was an accident, … why would I stab my friend? I’ve known him, that guy for, like, 12 years.”

9. [99]

   Mr Chatimba said he did not go inside (to get the knife). The knife was outside at the front because they were cleaning up the house. He said Mr Apikotoa picked up the knife first. He got the knife away from Mr Apikotoa by kicking him. Then the knife dropped on the grass so he grabbed the knife, told Ms Sanders to take their daughter, he grabbed the knife, he was defending himself because Mr Apikotoa kept swinging. He did not really think Mr Apikotoa would come at him because he was holding the knife. Mr Apikotoa kept on trying to come at him. He came straight onto the knife and it got him he thought in the left shoulder. Mr Apikotoa ran into him twice. Then Mr Chatimba was trying to stop Mr Apikotoa when he was running down the road. Mr Chatimba tried to go down the road and tried to find Mr Apikotoa but could not find him. He asked the neighbours to call the ambulance. He asked them “Can you please call the ambulance? I just hit my friend by accident”. He told the police “it was an accident”.

10. [100]

    Katherine [James] came to pick him up and then he came home.

11. [101]

    He said when he arrived home he tried to ring Ms Sanders to see if his other daughter was alright.

12. [102]

    He said he had to take off the clothes he was wearing because every time he comes home from work Ms James takes his clothes to wash.

13. [103]

    He said he just left the knife at the house. He must have dropped it because he had to make sure Mr Apikotoa was alright, he dropped it when he saw Mr Apikotoa was bleeding.

14. [104]

    At the end of the interview Mr Chatimba asked how Mr Apikotoa was, and the interviewing Detectives told him that Mr Apikotoa had passed away. Mr Chatimba responded “Oh my God ... Are you serious?”

15. [105]

    The second interview took place at Penrith police station and commenced at 10:36PM. The interview was conducted by the same two police officers who had conducted the earlier interview.

16. [106]

    Mr Chatimba said he went to pick up his daughters from Ms Sanders. He drove to her home.

17. [107]

    He said he and Ms Sanders were talking and then the phone rang and she would not pick it up. He asked “Who is it?” and she wouldn’t tell him. So he said “Show me?” and she said “Benni”. He asked “Is it Benni, Benni, my mate Benni?” She said yes. He said “Why would he be ringing you? How did he get your number?” So he started talking to Benni. He asked him:

18. [108]

    He said then Ms Sanders started crying. Then Mr Apikotoa rang again and Ms Sanders answered. Mr Apikotoa said “Oh, if he does anything to you, I’ll be there. I’m coming down now.” He heard that because Ms Sanders took the call on loudspeaker. Mr Chatimba said Mr Apikotoa kept on ringing and he put Ms Sanders on the phone. He could not hear what Mr Apikotoa was saying to her, but he heard her saying to him “Don’t come here because I don’t want to start trouble, ‘cause I have the kids here.” Mr Chatimba said to Ms Sanders “we’re going to lose our kids if you end up, if you keep bringing people in and things keep happening.” He heard Ms Sanders say “No, don’t come Benni. Don’t, we don’t want any trouble here.”

19. [109]

    Mr Chatimba told Ms Sanders that if Mr Apikotoa came there he was going to take his kids and go. She started screaming. So he opened the car door and tried to put his older daughter in and Mr Apikotoa showed up. He knew Mr Apikotoa from scaffolding and had known him for almost 10 years.

20. [110]

    He said he did not think Mr Apikotoa would be aggressive. It was a bit of a shock. He had never been like that with him. He said Mr Apikotoa was “egging” him on to “have a crack.” He said “Going to have a crack?” Mr Chatimba said “Mate really.” He did not want to fight Mr Apikotoa as he was his friend.

21. [111]

    Mr Chatimba was holding his daughter and Mr Apikotoa swung. Mr Chatimba moved out of the way until Mr Apikotoa punched him. Then he told Ms Sanders to take the child.

22. [112]

    He said Mr Apikotoa punched him in the eye and he put his daughter down. He told the interviewing police they probably could not see his injured eye because of his dark skin.

23. [113]

    He said he put his daughter on the ground and told Ms Sanders to take her. Ms Sanders was behind him on the driveway.

24. [114]

    Mr Chatimba said he put his hands up to Mr Apikotoa and said “Please don’t bro. Don’t, let’s not do this.” He said Mr Apikotoa started coming forward towards him and started swinging again. Mr Chatimba said that earlier in the night he was not truthful when he said that Mr Apikotoa had a knife. He said they were cleaning outside, there was stuff outside and he grabbed a knife “over there” because he thought he was going to attack him.

25. [115]

    Mr Chatimba said Mr Apikotoa was advancing with his hands up in the air. Mr Chatimba started moving backwards, he saw the knife and he grabbed it. He said he had made a pallet on the side of the house of things that were being thrown away because they were emptying the house. The knife was on a “white plastic canvas thing”. He had been using it to cut up some rope. It was a “silver kitchen knife”, “sort of stainless steel”.

26. [116]

    He said when Mr Apikotoa started throwing punches at him the knife on the pallet was about 2 metres from him. When Mr Apikotoa kept advancing, Mr Chatimba started moving backwards and he saw the knife and he grabbed it. He said Mr Apikotoa kept on coming. He thought since he was holding a knife Mr Apikotoa would probably notice the knife and would not keep coming. He kept on coming and Mr Chatimba said “Benni mate stop.” He kept on going and Mr Chatimba felt the knife hit something.

27. [117]

    He lunged forward thinking maybe Mr Apikotoa would realise he should not continue. He thought the knife went into Mr Apikotoa, he thought around the shoulder. He was just lunging forward and not looking where it was going. He just felt the knife hit something. He said Mr Apikotoa started throwing punches. Then he touched his shoulder and he was bleeding. Then he started running back. He told Mr Apikotoa to stop, that he was bleeding, but Mr Apikotoa kept running. Mr Chatimba could not keep up with him so he asked the neighbours to call an ambulance. He said to them “I just stabbed my friend. He’s bleeding”.

28. [118]

    He said he did not know how many times the knife connected with Mr Apikotoa; it could possibly have been more than once. He thought he pushed his hand out towards Mr Apikotoa three, four, or five times.

29. [119]

    When asked by the interviewing officer “What options did you have? Could you have just run back inside or could you have got away from him?” He said “Well, I thought so, but then when he punched me, when I was holding my daughter, I thought to myself…” and then he said Mr Apikotoa was faster than him and runs faster than him.

30. [120]

    He said he did not know what he did with the knife.

31. [121]

    He said he then he tried to ring Katherine [James] to pick him up. He said he told Ms James “I think I just stabbed my friend” and “I don’t know where he’s gone”. He said Ms James started crying and told him to call the police. He said that he didn’t know where his phone was and could not ring the police, although he rang Ms James on his phone.

32. [122]

    He said he told Ms Sanders “I stabbed Benni” and she started screaming.

33. [123]

    He said he thought Mr Apikotoa was going back to the pub to get the “rest of the boys” so he put his daughter in the car and drove home.

34. [124]

    He said he rang Ms Sanders and asked her to bring the younger child because he was worried Mr Apikotoa was going to come back to the house with the boys from the pub. He asked Ms Sanders and she confirmed police were at her place. He asked her what she was going to say, did she see what happened. She said she was not going to say anything.

35. [125]

    Mr Chatimba said to police that he thought when he pushed the knife towards Mr Apikotoa he would take a step back, that he would not keep coming, but he kept coming.

36. [126]

    He said after Mr Apikotoa punched him when he was holding his daughter and kept moving towards him, he turned around and there was a knife and he grabbed the knife. He said he did not know the knife was there; he saw it and picked it up. When he picked up the knife and went back to look at Mr Apikotoa he was about a metre away from him.

37. [127]

    Mr Chatimba said he did not think Mr Apikotoa was there to kill him. From the first punch he thought he was intending to hurt him or he was going to hurt his daughter.

38. [128]

    Mr Chatimba said had seen Mr Apikotoa argue with other people on site – “He punched a guy once and he just dropped to the ground”. He said he was not angry with Mr Apikotoa; he just wanted to understand what was going on.

39. [129]

    Detective Fokes said after Mr Chatimba was arrested on the night of 11 August he said “It was self-defence”, and after he was told Mr Apikotoa had died he said “I didn’t mean to kill him”. He said “I had no intention of doing that. I had zero intention of hurting him.”

40. [130]

    In a recorded conversation on 22 August 2019 between Mr Chatimba and Katherine James Mr Chatimba told Ms James he thought the knife was outside. She said to him he had told her the hallway, that he picked it up in the hallway. He said “It was in the hallway. In the drawer. I just found it in there. And then I left it outside. Then, when I didn’t really think he was going to come. So I just left it outside,” he said Mr Apikotoa punched him while he was holding his older daughter. He said “Then he kept coming at me… I went like that, so you can stay away from me.” Then he realised Mr Apikotoa was bleeding and he started running off.

The applicant’s submissions

1. [131]

   Counsel for the applicant submitted that there were no witnesses in the Crown case who witnessed the entire altercation between Mr Chatimba and Mr Apikotoa, that is, there was no direct evidence of the entirety of the altercation. He said Ms Sanders was with Mr Chatimba immediately before the altercation; Mr Stonestreet saw Mr Chatimba pursue Mr Apikotoa down the street. He did not witness the very beginning of the altercation between the two men.

2. [132]

   Counsel submitted that the defence case at trial was that the deceased arrived angry and intoxicated and began punching Mr Chatimba, who picked up a knife, and that the injuries to Mr Apikotoa occurred by Mr Chatimba jabbing the knife forward in an attempt to get Mr Apikotoa to stop, but Mr Apikotoa continued advancing and throwing punches.

3. [133]

   Counsel submitted that a reasonable jury could not have been able to exclude the hypothesis that Mr Chatimba, in inflicting the two fatal wounds, was acting in self-defence because of the following factors in the evidence.

4. [134]

   First, he submitted Mr Apikotoa attended Ms Sanders’ place as the aggressor, intent on assaulting Mr Chatimba. He submitted Mr Apikotoa went to Ms Sanders’ place after the phone conversation with her, to help her or protect her from Mr Chatimba, and “to sort out” Mr Chatimba, that is, to assault him. David Lindsay and Rachel George described Mr Apikotoa as angry and more angry than normal. David Lindsay left the scene because he thought Mr Apikotoa might have done something. Mr Apikotoa’s blood alcohol level may have induced aggression (Dr Robertson), especially when considered with Mr Apikotoa’s “tendency” to be violent, especially after drinking. Mr Chatimba was sober. Mr Apikotoa left his keys, phone, wallet and sunglasses in David Lindsay’s car when he got out of the car to go to Ms Sanders’ place.

5. [135]

   Secondly, counsel submitted that Mr Chatimba was not seeking to fight Mr Apikotoa. He did not want Mr Apikotoa to come to Ms Sanders’ place and told him so on the phone. Although Ms Sanders said Mr Chatimba was angry, including throwing a phone at her, her evidence had significant reliability issues. Mr Chatimba was trying to leave Ms Sanders’ place with his daughter before Mr Apikotoa arrived. He told Katherine James that and said Mr Apikotoa coming to Ms Sanders’ place was a “problem”. Therefore the Crown could not negative that Mr Chatimba did not consider it necessary to defend himself when Mr Apikotoa arrived. Counsel submitted that Mr Chatimba put the knife outside in anticipation of a potential threat. He submitted Ms Sanders heard Mr Chatimba rummaging in the box but did not see him get the knife. Counsel submitted that Mr Chatimba took the knife from inside and put it outside on the pallet, from where he later retrieved it. He submitted Mr Chatimba was not jealous of Ms Sanders talking with Mr Apikotoa; he was unhappy that Ms Sanders had not spoken to him for a time about the children, yet was speaking with Mr Apikotoa.

6. [136]

   Third, counsel submitted there were no witnesses at the moment when the fatal wounds were inflicted. He submitted neither pathologist could determine the order in which Mr Apikotoa’s injuries were inflicted, nor could the blood drip trail. He submitted the expert evidence could not exclude the fatal wounds being struck on Ms Sanders’ driveway. He submitted that Ms Sanders’ account changed in that she did not initially mention to police a fight or a knife. Counsel submitted that if Ms Sanders’ evidence that she saw two downward punches by Mr Chatimba was accepted, that is inconsistent with him being armed with a knife at that point. Counsel submitted that Mr Chatimba arming himself with a knife after an initial physical altercation with Mr Apikotoa is not inconsistent with him considering it necessary to defend himself.

7. [137]

   Counsel submitted that Ms Sanders did not see the critical moment in which the fatal injuries were likely struck. He submitted Shane Stonestreet’s evidence was adversely affected by his line of sight with cars parked in his driveway, his distance from what he was witnessing, the lighting and the short time over which the incident occurred, described by him as 4-5 seconds, and his talking to neighbours before he spoke to police giving his evidence some aspect of reconstruction. Counsel submitted that Mr Stonestreet described a swinging knife, not a stabbing motion. He did not observe when the fatal injuries were inflicted. Counsel submitted that Mr Stonestreet’s evidence cannot exclude Mr Chatimba acting in self-defence, or excessive self-defence.

8. [138]

   Fourth, counsel submitted that the expert evidence supported the inference that Mr Chatimba was acting in self-defence. He submitted both doctors said Mr Apikotoa could have thrown punches and run after the fatal stab wounds were inflicted. Dr Duflou said Mr Apikotoa may not have realised initially he had been stabbed. The doctors said the wounds were consistent with Mr Chatimba pushing the knife towards Mr Apikotoa without much force, and the injuries to Mr Apikotoa’s hands and arms could have been incurred by him acting aggressively, attacking Mr Chatimba.

9. [139]

   Next, counsel submitted that Mr Chatimba’s conduct after the altercation was consistent with his having acted in self-defence. Counsel pointed to Mr Chatimba having told Ms Haddad to call an ambulance, which he submitted showed concern for Mr Apikotoa’s welfare, as did his attempting to assist Mr Apikotoa while he was running down the street. He submitted that Mr Chatimba’s account to Katherine James was consistent with that. He relied on Detective Fokes’ evidence that Mr Chatimba said “It was self-defence” and his response when told Mr Apikotoa had died was “I didn’t mean to kill him”.

10. [140]

    Next, counsel relied on the “so-called absence of injuries” to Mr Chatimba. Counsel submitted there is no objective or scientific support for the Crown’s suggestion in the trial of no injury having appeared on Mr Chatimba’s face in the time for swelling and bruising to have become apparent. He submitted there was a slight reddening to Mr Chatimba’s eye and Katherine James gave evidence of it which was not challenged by the Crown. Counsel submitted the injury to Mr Chatimba’s eye may not easily be seen on his dark skin and submitted that his injury to his eye supported his account that Mr Apikotoa punched him in the eye.

11. [141]

    Counsel submitted that the applicant’s account is not able to be disproved beyond reasonable doubt. Counsel submitted that the Mr Chatimba’s account that Mr Apikotoa said to him “Do you want to have a crack?” is supported by Sarah Stonestreet hearing a similar phrase (“Do you want to have a go?”).

12. [142]

    Counsel submitted that Mr Chatimba’s first interview with police occurred before he became aware Mr Apikotoa had died. After becoming so aware he told police what had actually occurred and did so of his own accord. Counsel submitted his account of the fundamental aspects of the altercation was consistent and not able to be disproved beyond reasonable doubt. That account was that he was confronted by Mr Apikotoa on the driveway as he attempted to leave, Mr Apikotoa punched him in the eye, and he jabbed out with a knife to defend himself and Mr Apikotoa continued to bear down on him. Counsel submitted that Mr Chatimba’s account is also consistent with objective evidence that Mr Apikotoa was the aggressor and instigator of the physical altercation, that Mr Chatimba did not want Mr Apikotoa to attend the property, and that Mr Chatimba was not armed with a knife during the initial altercation. He relied on there being no eyewitness to the blows being struck.

The Crown’s submissions

1. [143]

   The Crown submitted that the jury must have rejected Mr Chatimba’s account that he acted in self-defence and the evidence did not require the jury to accept Mr Chatimba’s account as a reasonable possibility. The Crown submitted that the only evidence about self-defence relied on Mr Chatimba’s account in his interview with police, but all the evidence from other witnesses showed that he was the aggressor. The Crown submitted that Mr Chatimba’s account was riddled with obvious lies, of varying degrees of significance.

2. [144]

   The Crown submitted that Mr Chatimba lied about going to see Ms Sanders to talk about her taking the children away, when she had already agreed that he could take his older child that night and see the other child the next day. He lied about asking Ms James to come and collect him and that he did not know where his phone was to call the police. He lied that Mr Apikotoa punched him while he was holding his child. He lied about the knife being outside, contradicted by Ms Sanders’ evidence of hearing him go through the box in the hallway and his recorded admission to Ms James. He lied in his first interview about Mr Apikotoa having a knife.

3. [145]

   The Crown submitted that the other evidence in the Crown case was capable of proving the offence beyond reasonable doubt, including negativing self-defence. The Crown submitted that there were three areas of evidence central to its negativing self-defence.

4. [146]

   The first was that Mr Chatimba took the kitchen knife outside once he believed Mr Apikotoa was coming over. The Crown submitted one available inference is that Mr Chatimba intended to cause harm to Mr Apikotoa when he arrived at the house. Mr Chatimba’s account that he took the knife outside because he was concerned about what Mr Apikotoa might do is implausible given he had options to leave. Then he used the knife, instead of his fists, when Mr Apikotoa was unarmed.

5. [147]

   The Crown submitted that Shane Stonestreet was an independent, impartial witness with no apparent reason to fabricate his evidence, which was not put to him, or to implicate Mr Chatimba. The Crown submitted he was not prone to exaggeration. The Crown submitted there was no basis to accept the applicant’s contention that Shane Stonestreet’s view was obstructed, which was not specifically put to him, or that his evidence had become tainted or reconstructed by knowing that Mr Apikotoa was stabbed. The Crown accepted that Shane Stonestreet did not see the entire interaction between Mr Chatimba and Mr Apikotoa, but submitted that what he did see, Mr Chatimba charging Mr Apikotoa while swinging the knife as Mr Apikotoa backpedalled away with his hands up, is consistent with Mr Chatimba attacking Mr Apikotoa and entirely inconsistent with his acting in self-defence. The Crown submitted the blood trail was consistent with Shane Stonestreet’s evidence. He submitted the whole event happened very quickly on the objective evidence of the times of phone calls and the times of Closed Circuit Television (CCTV) footage of Mr Lindsay’s car coming to the street and leaving.

6. [148]

   The Crown submitted that there was not a single stab wound to Mr Apikotoa but six, three on the upper left chest and shoulder area, and that the jury could infer from the number and location of stab wounds that Mr Chatimba attacked Mr Apikotoa.

7. [149]

   The Crown submitted that the expert evidence did not support the inference that Mr Chatimba was acting in self-defence, but rather neither doctor could wholly exclude the defence case theory based on the injuries alone. The Crown submitted that “moderate force” is an amorphous term and the knife was being inserted almost halfway into Mr Apikotoa’s body through clothing, which required some degree of intent. The Crown submitted that Dr Szentmariay maintained the injuries were “defensive type injuries” and had to “stretch his imagination” to say they were attacking injuries. The Crown submitted that the injuries and other evidence were consistent with Mr Chatimba running or charging at Mr Apikotoa, while the latter tried to get away.

8. [150]

   The Crown submitted that to the extent it can be found that Mr Apikotoa was angry when he arrived at Ms Sanders’ place, his concern was for her and her children. The Crown submitted it does not follow that Mr Apikotoa was the aggressor or initiated a physical fight by punching Mr Chatimba. The Crown submitted there is no evidence that Mr Apikotoa attended intent on assaulting Mr Chatimba. He did not leave the hotel hurriedly. He was on his way to dinner with Mr Lindsay and only changed direction after the call from Ms Sanders. The Crown submitted that the high point for the applicant’s case is that Mr Apikotoa left his belongings in Mr Lindsay’s car.

9. [151]

   The Crown submitted there was evidence that Mr Chatimba was jealous and angry, being that neighbours heard him and Ms Sanders arguing before Mr Apikotoa arrived, David Lindsay heard an angry male voice and a “commotion” over the phone, Mr Chatimba threw the phone at Ms Sanders’ face and she gave evidence that Mr Chatimba asked her about the children’s father.

10. [152]

    The Crown submitted that Ms Sanders’ evidence should be considered honest although she did not immediately disclose her full knowledge of what had happened, but she gave reasons for that, in that she was distressed and concerned about her children being taken by “DOCS”. The Crown submitted that her evidence was measured.

11. [153]

    The Crown submitted there was no visible injury to Mr Chatimba’s face.

12. [154]

    The Crown submitted that Mr Chatimba’s account that he was surprised by Mr Apikotoa’s aggressive conduct when he arrived was inconsistent with his account of taking the knife outside in anticipation of having to defend himself. The Crown submitted that Mr Chatimba’s account that he obtained the knife from the rubbish pile near the house and he stabbed Mr Apikotoa six times while the latter was oblivious to a large kitchen knife is inconsistent with the blood trail commencing down where Ms Sanders said the fight occurred.

13. [155]

    The Crown submitted that the tendency evidence did not advance Mr Chatimba’s case, in that it was old and was countered by other evidence that Mr Apikotoa was not generally aggressive. The Crown submitted that even if it was accepted that Mr Apikotoa’s intoxication may have impaired his judgement, it does not follow that he initiated a physical fight, or even if he did that Mr Chatimba’s conduct is explained by a genuine belief that his actions were necessary to defend himself from Mr Apikotoa.

14. [156]

    The Crown submitted that the applicant’s submissions considered individual pieces of evidence in isolation, rather than considering the evidence as a whole, on which the jury’s verdict was well open.

Consideration

1. [157]

   The jury were properly directed by the trial judge about self-defence and no complaint has been made about those directions. The jury was told that the Crown must eliminate self-defence by proving beyond reasonable doubt that when Mr Chatimba stabbed Mr Apikotoa he did not do so in self-defence, and that the Crown may do this by proving beyond reasonable doubt either that Mr Chatimba did not believe at the time he stabbed Mr Apikotoa that it was necessary to do so in order to defend himself or that the stabbing was not a reasonable response in the circumstances as he perceived them to be.

2. [158]

   The evidence of Cassandra Sanders was acceptable, plausible and supported by other evidence. Her explanation for why on the night of the stabbing when she spoke to police she did not initially reveal the full extent of Mr Chatimba’s conduct was acceptable, being her fear of her children being taken by child protection authorities if they knew that a violent incident had happened at her home at the hands of the children’s father. The significant aspects of her evidence are Mr Chatimba’s anger about Mr Apikotoa calling her, his demonstrated possessiveness in enquiring why Mr Apikotoa was calling his “ex-missus”, his enquiry of Ms Sanders if Mr Apikotoa was the father of her two children with Mr Chatimba and his throwing the phone at her face, which was supported by the bruising visible on her face.

3. [159]

   She gave evidence that she, not Mr Chatimba, was holding her older child when Mr Apikotoa arrived in the driveway, which credibly contradicted Mr Chatimba’s evidence that Mr Apikotoa punched him while he was holding his older child, which was inconsistent with Mr Apikotoa coming to Ms Sanders’ home because of concern about her safety and her children’s. Her evidence that she saw Mr Chatimba punching Mr Apikotoa was credible, as was her evidence that she heard Mr Chatimba rummaging in the box in the hallway in which there were knives. That was supported by Mr Chatimba’s admission of such in his recorded conversation with Katherine James.

4. [160]

   The blood drip trail from where the driveway to Ms Sanders’ home connected with the cul-de-sac, down the road past the bins where Mr Stonestreet made observations of Mr Chatimba’s conduct, and continuing to the house where Mr Apikotoa arrived in his injured state, was consistent with Ms Sanders’ evidence that the fight she described began at the end of the driveway.

5. [161]

   None of the doctors could say when and where in the street the multiple stab wounds were inflicted on Mr Apikotoa, but that the blood trail began at the end of Ms Sanders’ driveway is consistent with at least some injuries having been inflicted there. Despite submissions on behalf of Mr Chatimba that the downward punches by Mr Chatimba which Ms Sanders described were inconsistent with stabbing motions, I am not so persuaded and the blood trail evidence suggests that some wounds were inflicted there. Similarly, a submission made on behalf of Mr Chatimba that the swinging motion which Mr Stonestreet described observing, when Mr Chatimba and Mr Apikotoa were at the bins under the streetlight, was not consistent with the stab wounds, assumes how the knife was being held at the time of the swinging movement, and stab wounds could well be inflicted by such a motion.

6. [162]

   Mr Stonestreet’s evidence, particularly his calm and matter-of-fact account in the video recording, was credible and persuasive. His evidence of Mr Chatimba charging and running after Mr Apikotoa who was backpedalling with his arms up was believable, consistent with Mr Chatimba being the aggressor, and completely inconsistent with Mr Apikotoa being the aggressor, as were his observations of Mr Chatimba’s swinging downward motion with the knife which he demonstrated, seen under the lights at the end of the street near the rubbish bins. The vertical stab wounds on Mr Apikotoa’s forearms are consistent with Mr Stonestreet’s account.

7. [163]

   Mr Chatimba’s statement to Ms Haddad that he had stabbed someone appears to have been a spontaneous truthful statement, and was inconsistent with his account thereafter that Mr Apikotoa injured himself by running onto the knife held by Mr Chatimba.

8. [164]

   No injury can be discerned on Mr Chatimba’s face in the photographic exhibits, and neither police officer who interviewed him or took a photograph of him saw any such injury. The only evidence of injury to Mr Chatimba’s face came from him and from Ms James, the latter of whom could not be regarded as an independent and impartial witness.

9. [165]

   The evidence of the observations of Mr Apikotoa at the hotel do not support him being angry and leaving in an angry state. Mr Lindsay’s evidence that Mr Apikotoa became angry during the phone call with Ms Sanders when a “commotion” and a male voice could be heard in the background is consistent with his going to Ms Sanders’ home out of concern for her and her children. On all the evidence other than Mr Chatimba’s account, Mr Chatimba was angry, having been overheard by the neighbours arguing with Ms Sanders before Mr Apikotoa arrived, and the aggressor.

10. [166]

    The asserted tendency of Mr Apikotoa to be violent when intoxicated, based on one incident three years before, does not add much to Mr Chatimba’s case of self-defence. But as it was evidence before the jury I will take it into account.

11. [167]

    Ms Sanders’ evidence that she heard Mr Chatimba rummaging in the box in the hallway, where the knife was later found, and his admission to Ms James that he obtained the knife from there, gives rise to the inference that he obtained the knife before Mr Apikotoa arrived at Ms Sanders’ home. Mr Chatimba’s account that he took the knife from inside and took it outside, where he put it on the pallet, in case he needed to defend himself, and obtained the knife from the pallet when he was attacked by Mr Apikotoa, is inconsistent with Ms Sanders’ evidence and the blood trail evidence that the fight began at the end of the driveway, whereas the pallet from which Mr Chatimba said he grabbed the knife after the altercation began was close to the house, not near the end of the driveway.

12. [168]

    Mr Chatimba’s accounts were inconsistent with most, if not all, of the other evidence. The jury were given a Liberato direction about his account. As they were directed and required to do, I put aside his account as not believable, and inconsistent with much of the other evidence in the Crown case.

13. [169]

    The other evidence in the Crown case, to which I have referred above, satisfies me beyond reasonable doubt that Mr Chatimba did not stab Mr Apikotoa in self-defence, and was capable of so satisfying the jury. The jury’s guilty verdict was open to the jury on the whole of the evidence and was not unreasonable.

Leave to appeal

1. [170]

   Although Mr Chatimba has not succeeded in making out his ground of appeal, I should say something about his application for leave to appeal out of time. He relied on an affidavit from his solicitor Abigail Bannister. The jury returned its guilty verdict on 6 April 2021. Wright J sentenced Mr Chatimba on 16 July 2021. A Notice of Intention to Appeal was filed on 19 July 2021. The Notice of Appeal was filed on 27 June 2025.

2. [171]

   Ms Bannister said in her affidavit that on 20 July 2021 an application was submitted to the Legal Aid Commission seeking a grant of aid and assignment for the appeal, which was approved on 26 July 2021. On 28 July 2021 a request was made to the Public Defenders Chambers and a request was made to the court for the transcripts and exhibits from the trial. Further requests were made for such later in 2021. In August 2021 a Public Defender accepted the brief. In April 2022 a brief was delivered to counsel. Requests continued to be made for missing exhibits. In August 2022 a conference was held with counsel who advised informally that the matter had merit. Throughout the rest of 2022 and 2023 enquiries were made of counsel about progress. In February 2024 after further discussions with counsel about other work commitments it was decided to brief other counsel. In February 2024 approval was sought and obtained from the Legal Aid Commission to re-brief the matter. On 1 March 2024 a brief was delivered to the chambers of Mr Kalyk, the counsel who appeared for the applicant before this Court. On 9 December 2024 Mr Kalyk provided a merit advice. On 6 May 2025 Mr Kalyk provided draft submissions. On 27 June 2025 Ms Bannister received a signed copy of final submissions from counsel.

3. [172]

   The Crown opposes the applicant being granted an extension of time, submitting that the four year delay since Mr Chatimba was sentenced was unacceptable and there was no good explanation provided, and it being seven years since the death of Mr Apikotoa, there was ongoing trauma for his sister who was in Court.

4. [173]

   The Crown relied on the comments in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) of French CJ, Hayne, Bell and Keane JJ at [29] about the interests of justice in the review of an old conviction, which may raise consideration of the capacity to hold a new trial that is fair to both parties, including witnesses may no longer be available, exhibits may have been lost and reopening a conviction may occasion stress to the victim, including from the prospect of having to give evidence again.

5. [174]

   At [32] and [33] of Kentwell, the plurality stated that provisions permitting an appeal against conviction are exceptions to finality in the trial and sentencing of offenders and the principle of finality is expressed in the prescription of a time limit within which an appeal or application for leave to appeal may be brought. The interests of justice in deciding whether to permit an appeal or application for leave to appeal to be heard, notwithstanding that it was not brought within time, may pull in different directions, and include the adverse effect on the victim or on the community generally from reopening a concluded criminal proceeding, and the prospects of success of the appeal.

6. [175]

   The delay between the prompt filing of a Notice of Intention to Appeal and the filing of the Notice of Appeal in this matter is unacceptable. The trial was not complex or lengthy; the trial transcript and exhibits provided to this Court were contained in two folders. The lack of attention to the appeal in this matter should not be regarded by practitioners as acceptable. Such a delay is not in the interests of an applicant or the community and in particular, as in this case, the family of the deceased person.

7. [176]

   However, in the interests of finality I would grant an extension of time, grant leave to appeal and dismiss the appeal.

Orders

1. [177]

   Therefore the orders I propose are:

   1. (1)

      Extend the time for filing the Notice of Appeal to 27 June 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.