Meyers v The Queen M4/1997 [1997] HCATrans 149 (26 May 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M4 of 1997

B e t w e e n -

NOEL JOHN MEYERS

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ

TOOHEY J

GAUDRON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 26 MAY 1997, AT 10.18 AM

Copyright in the High Court of Australia

MR R.K. KENT, QC: May it please the Court, I appear on behalf of the appellant. (instructed by Galbally & O'Brian)

MR G.R. FLATMAN, QC: May it please the Court, I appear with MR J.D. McARDLE, for the respondent. (instructed by the P. Wood, Solicitor to the Director of Public Prosecutions)

BRENNAN CJ: Mr Kent.

MR KENT: If the Court pleases, it is the submission of the appellant in this case that a proper assessment of the fact does not identify a basis for the exclusion of an hypothesis consistent with an intention other than the necessary intention for the charge of murder to be made out. This matter was put by the Crown at trial and, subsequently, before the Court of Appeal on the basis not that there was an intention to kill but that there was an intention to cause serious bodily injury.

GAUDRON J: That was an inference that might well be drawn from the horrific injuries and the quite appalling assault that obviously took place.

MR KENT: Yes, your Honour. It is the appellant's submission that - - -

GAUDRON J: In fact you could not draw any other inference, could you, that there was - - -

MR KENT: Well, yes.

GAUDRON J: - - - at least when some of the injuries took place there must have been that intent.

MR KENT: Yes. It was clearly open to the jury to find that at some stage during the course of the event that there was such an intention. It was not necessary that they do so, but it was open for them to do so and we do not contend otherwise from that, but what is contended is that in the circumstances of this case, because the act or acts which caused the fatal injury is not able to be identified, it was not open for the jury to conclude that the act or acts which caused the fatal injury were accompanied by the relevant intention.

GAUDRON J: So your hypothesis must at least go that at some stage there was a change of intention.

MR KENT: Yes, your Honour, but that there could have been a variation of intention throughout the course of the altercation and that that must be something that is open as a hypothesis because one cannot say that in the ordinary affairs and conduct of human beings that there is not a variation or a fluctuation or a change of purpose.

GAUDRON J: So do you posit this having occurred at any particular time during this assault?

MR KENT: No. It is not necessary, with respect, your Honour.

GAUDRON J: It could not have been before it, could it? I mean, it is unlikely to have been before it, is it not, if he continued to savage her in the way that the papers indicate?

MR KENT: Your Honour, the question is whether or not it was continuous, or whether it was intermittent, as to how long it actually took, and there is a great deal of speculation necessary to be able to conclude that there was a sustained and concerted attacked that, at all time, carried with it the one and single intention, and that that really is the difficulty with a case of this nature, and that the contention of the respondent really is based upon a speculative view of the facts as to what the things that were overheard mean and, in conjunction with the subsequent findings as to injury, what is it that they mean. It is analysis of those matters that needs to be undertaken, and it will be seen in - - -

GUMMOW J: You say it needs to be undertaken, but there is no complaint of misdirection, is there?

MR KENT: No.

GUMMOW J: So, is the relevant section 568 of the Victorian Crimes Act?

MR KENT: Yes, your Honour.

GUMMOW J: And the question is unreasonable, and cannot be supported having regard to the evidence. Is that the legal framework?

MR KENT: Yes, your Honour. And we would submit that the principle enunciated in Knight, which was dealing, of course, with the Victorian provision, is applicable, and we would also submit that, as a general proposition, it is fair to say that the question with respect to determining whether a verdict is unsafe or unsatisfactory is effectively the same in all jurisdictions in Australia in any event, albeit that the various statutory provisions may be worded slightly differently.

KIRBY J: I think that is said in Whitehorn, as a constant standard.

MR KENT: Whitehorn, yes, your Honour. And I think it is said in other cases, but certainly it is in Whitehorn, your Honour. We would submit that the situation as was revealed in Knight is indeed appropriate for consideration in this case. We do not say that it is necessary to go and read Knight back to front, nor, indeed, the recent decision of this case, which only came to my attention yesterday, the matter of Cutter - a judgment delivered on 29 April of this year - involves the same considerations, where it can be seen, from a review of the facts, that there is an hypothesis consistent with innocence which cannot be excluded upon the facts.

GAUDRON J: It has to be a reasonable hypothesis though, does it not?

MR KENT: Yes, your Honour, of course. It is tempting in this case, we would - - -

GAUDRON J: I want to know how you make a hypothesis of variation of reasonable hypothesis, a hypothesis of a change in intent from doing really serious injury to, one presumes, doing only slight injury; how you would square the reasonableness of that hypothesis with the ordinary presumptions - and I am not talking about legal presumptions - of continuity where you work on the assumption that things continue until there is some marked change.

MR KENT: With respect, your Honour, the problem about it is that if one goes to the end and looks at the result of this case, it is very tempting to approach the matter by saying there was a sustained and deliberate act, but if one actually - - -

GAUDRON J: But there was an attack, was there not?

MR KENT: There was an attack but there was also - - -

GAUDRON J: And it was a very vicious attack.

MR KENT: This must be borne in mind: the evidence of Dr Cordner puts it thus, that the injuries that he observed, leaving aside for a moment the pulling of the hair, would require moderate force - not that they required severe - - -

KIRBY J: At least moderate force.

MR KENT: At least moderate force, but he is not prepared to say as an expert and a very skilled and experienced expert that you could find that there was severe force other than with respect to the pulling of the hair. It is plain that it was not as a consequence of the pulling of the hair as such that death resulted. It was direct trauma of some kind to the head that caused the brain injury and the fatal injury.

KIRBY J: But he did say that he had never seen a case with such an amount of hair pulled out. Whilst it is true that you could cut these pieces of evidence up and look at them in isolation, I think the reality of human affairs is that the pulling of such an amount of hair never before seen by this forensic expert of great experience is an indication of the level of violence of the attack.

MR KENT: That part of the attack, your Honour, yes. Again, with respect to the evidence of Professor Cordner, in relation to that, the fact that he has not seen that severity of hair pulling might mean, simply, that you could have that sort of severity of hair pulling but they do not end up being seen by Professor Cordner in his role as a pathologist, and I think he more or less agreed to that proposition in the course of cross-examination.

So that again it is tempting perhaps to say because of a man of the eminence and experience of Professor Cordner, with respect to the performance of post mortem examinations, that he has not seen this before, it does not necessarily follow that we can say that this is of such rarity and savagery to indicate that it is open to find, as a general proposition, there was an intention to cause serious injury at the time that the act which caused death was carried out.

TOOHEY J: In the sort of situation that took place here, absent an admission by the accused that he intended to kill or to do grievous bodily harm, it is difficult to see how a verdict of murder would be sustained, on your approach.

MR KENT: That is so, yes. In the circumstances of this case, yes.

TOOHEY J: Yes, so long as "in the circumstances of this case" includes acts of violence over a lengthy period.

MR KENT: Yes, it does. The fact that is a lengthy period of time is of itself a significant factor in the difficulty that there is in saying that it was open to the jury to find the relevant intent accompanying the act which caused death. If, for example, it was clear on the evidence that the injuries that were suffered here, including the fatal injury, all occurred within the space of a minute or two it would probably not be open to argue that it was not open to the jury to conclude that the fatal act itself was accompanied by the necessary intention.

What we have here is, on the evidence, a transaction which took place between the parties, varying in its observation by people from the outside, between 10 and 15 minutes to an hour, an hour and a half. In the course of that, there is evidence of the coming and going, as it were, of the parties with respect to their conflict, their direct conflict between one another. There is the very significant piece of evidence that at some stage the appellant is struck over the head that a plaster-filled pot plant, and that he says - and it is my submission consistently - that he was at the time he was struck in the process of attempting to make a telephone call.

If one assumes that he had been engaged in some attack upon the deceased but that then he goes to use the telephone and whilst his back is turned he is struck at the time of speaking on the telephone, it is open to conclude that he has desisted from his previous violent act, if there were acts before that. One of the difficulties about it is that it is largely speculative as to the overall - let me put that another way. It is difficult to be precise as to the actual sequence of events on anybody's evidence.

TOOHEY J: But it is not speculative that there was an incident that took place over a considerable period of time during which the woman was heard to call out and give indications that she was being attacked.

MR KENT: Yes, that is so, but there is also that evidence and that there is a time within that time frame where the accused is not - - -

GUMMOW J: Wait a minute. It is unsworn evidence, is it not, by your client?

MR KENT: He gave unsworn evidence, but it is not only that, your Honour; it is the material where he spoke to the various police officers at different stages, the first police to arrive. That is evidence of course and it is in a sense spontaneous. It is also supported by the fact that there is blood in the vicinity of the telephone, on the telephone itself, that he does have the laceration to the back of his head. His earnest concern with the police when they first arrived was his demand that they take action to charge the deceased for having struck him over the head. So that it would not be - - -

KIRBY J: He telephoned the police, did he? Was it his call or was it the neighbour's call?

MR KENT: No, his brother on later attending telephoned the police, although there was evidence from the appellant that he telephoned the police himself, but there was no evidence from police that that in fact occurred. There was some discussion at trial about the comments that were made by the learned Crown Prosecutor that this was either a falsehood by the appellant or at least not supported by the evidence. But the fact was that there was no simply no evidence from the police that there was not such a call. He said he made such a call. He also said that he telephoned his brother-in-law, and his brother-in-law supported that, and that he asked his brother-in-law to call his brother. The brother then attended with the appellant's mother at the premises.

So that, there were telephone calls. Presumably it is clear that the telephone call that was made which resulted in the brother of the appellant attending at the scene was at a time after the altercation had ceased. There seems to be no other view open on the evidence than that that was so, and that he reported that she was on the floor and she was faking it, like she had done before, and he repeated that to the police when they arrived.

KIRBY J: I know that you are laying out the facts, and it is important that we understand those. But so that I can have the principle in my mind, the quandary that I have about Knight, which I tried to reflect in Cutter, is that, as Justice Toohey has said, unless you have a plea, then, by definition, you have another hypothesis, and that hypothesis is the hypothesis that is argued upon the jury, and the jury has the advantages of determining this, and I assume that this is what happened in this case; there was the trial, there was the Crown's hypothesis, there was your client's hypothesis, and the jury preferred, according to the standard, without misdirection, the Crown's. Now, how does one find a formula that helps to distinguish the case where there is a hypothesis which the jury has rejected, and that where there is a hypothesis that demands that the appellate court intervene?

MR KENT: Yes. Well, I am going to say something not terribly helpful to your Honour, except that it very much depends upon what the actual evidence is in each individual case. Sometimes it is clear, sometimes it is not. It is my submission that this case is much clearer than the situation in Cutter, and that here one has to look at the actual evidence. The evidence of Professor Cordner is absolutely vital in this regard, and that is that he, as an expert, says this type of injury - the fatal injury - could be caused by a single act of trauma to the head; that that could be caused in a fall and a striking of the head on an object such as a table, or on a floor. The prosecution speculates, it is my submission, that because there was some noises heard, and that there was hair pulled out, that it was open to the jury to conclude that there was a deliberate banging of the head of the deceased against some object. Now, that is just not open.

BRENNAN CJ: No, that is not the question. No question of voluntariness came into it. It is a question of whether when she sustained this injury which caused her death, that is the intracranial injury which caused her death, the act of the accused which put in train the falling or whatever it may have been which caused the intracranial injury was an act that was done with the intention of inflicting really serious harm. That is the question, is it not?

MR KENT: Yes, your Honour, it is and I perhaps expressed myself badly. I short circuited it.

BRENNAN CJ: Yes, you spoke in terms of whether it was a deliberate act or not. It is a question of the intention.

MR KENT: Absolutely, your Honour. If I said that, I did not mean to say that, your Honour, and I apologise.

TOOHEY J: It had overtones of accident almost in what you said a while ago.

BRENNAN CJ: That is right.

MR KENT: Probably because I was short circuiting the matter. If it goes back to this situation, I was just referring to the evidence of Professor Cordner as to the type of trauma that could result in the fatal injury in this case. Now, there is a step further back and that is that it is caused as a consequence of some act of the appellant.

BRENNAN CJ: The majority judgment, it seems to me, subject to anything you have to say, put the question quite precisely and that was in these terms at page 535:

The fatal head injury, and its infliction, were not to be considered in isolation from the other injuries sustained by McNamara and indeed the whole course of events in the applicant's home that night, although the ultimate question for the jury was whether the Crown had proved beyond reasonable doubt that the acts causing death were accompanied by the necessary specific intent.

Now, you would agree with that.

MR KENT: I do agree with that and in that - - -

BRENNAN CJ: The next sentence is this:

The infliction of injuries other than the fatal injuries was to be taken into account by the jury in considering that ultimate question.

You would agree with that.

MR KENT: Yes, I agree with that, with respect, your Honour.

BRENNAN CJ: So the simple issue for this Court to determine is whether or not, having regard to the hypothesis that she hit her head and suffered the intracranial injuries in the way in which she must have done, the act which caused that is to be regarded as necessarily accompanied with the requisite intent, having regard to all the circumstances.

MR KENT: Yes.

BRENNAN CJ: That is a simple question of fact.

MR KENT: It is, your Honour, but what we submit happened was, and if you go on and see what the court did after correctly stating the question, it then effectively made a leap and did not deal with the question of how the evidence was capable of excluding the hypothesis that the act, whichever act it was, was not accompanied by the - - -

BRENNAN CJ: I understand that is the burden of your argument, but the question of fact is a very simple one, is it not?

MR KENT: It is, but there are two stages of difficulty about it. One, the question was not put to the jury in the way that it was correctly put by the Court of Appeal in the passage which your Honour has just read - - -

BRENNAN CJ: Are you raising the question of the sufficiency of the direction?

MR KENT: No, I am not, but I am simply indicating this, that when we get to the question of whether or not one says that the jury had some particular advantage or other in the determination of the facts, there are two reasons, I would submit, why they did not have any distinct advantage over anybody considering the evidence in this case. One, this was not a case of conflicting evidence and determining between conflicts in evidence and questions of credibility. The Court of Appeal discussed the question of some attack on the credit of Mr Cronin that was made by counsel in counsel's address to the jury, but it is my submission it matters not what you make of Mr Cronin's evidence, accepting it absolutely, that you cannot draw the conclusion from that evidence in combination with the other evidence that the alternative hypothesis is excluded and we can deal with that further, but - - -

GAUDRON J: Could we take the hypothesis in time periods. Could we hypothesise that it was the first blow that caused the haemorrhage and that thereafter there was an assault, with the deceased making noises and calling for help? Can we hypothesise that? It that a reasonable hypothesis?

MR KENT: The problem about it is, in breaking it down like that, that it all becomes speculative, and so is the prosecution case, it is equally speculative.

GAUDRON J: Okay. Can we speculate, then - is there medical evidence to say that that is reasonable?

MR KENT: Yes.

GAUDRON J: That the injury could have happened but the deceased could nonetheless have been - - -

MR KENT: Been active, yes.

GAUDRON J: Active, and for a half - - -

MR KENT: Yes, there is evidence of that, your Honour.

GAUDRON J: That she could have been active after the assault.

MR KENT: She could have been active afterwards and that unconsciousness could have set on over a period of some minutes. Professor Cordner is specifically asked about that in the evidence and he says that it does not necessarily follow where you find the type of injury that he found, that unconsciousness would occur immediately and that it could be a matter of minutes and a person could remain active, and I think I am right in saying, could carry out an act of striking someone over the head. What he says is that more severe the injury or the greater the evidence of activity the less likelihood there is that the injury is already sustained. So you have a period where he cannot say for how long a person could remain active. In terms of viewing from his perspective, whether the injury has been - - -

GAUDRON J: The reason I asked this is, it seems to me one might hypothesise, reasonably, one might well - it is possibly, I do not say it is a reasonable hypothesis - but one might hypothesise that there was no intention at the beginning of the fight but that an intention to cause really serious harm developed thereafter.

MR KENT: Developed as the proceedings went on, yes, your Honour.

GAUDRON J: However, it seems to me almost impossible to hypothesise to the obverse, that is to say that there was an intention to cause really serous harm at the beginning and that somehow or other that dissipated into an intention just to - - -

MR KENT: It could, your Honour, in this way. You could start off - - -

GAUDRON J: Just to just shrug her off, as he said.

MR KENT: Yes. It could start off in this way, that there was an intention and that there was physical violence used, that he then desists from it. He then gets on the telephone, gets hit over the head and all he does is push her away at that point, forcefully enough for her to sustain a heavy fall. It is not suggesting that it was not open to the jury to find on the basis of what he said and as to her position she has found on the floor and so on, that he forcefully pushed her away at that point. So that you could have a situation where the earlier intention was a more serious intention and it had dissipated and that particular act which may have caused the fatal injury was not accompanied by any intention to cause serious injury, because you introduce something altogether new into the equation: he is going to the telephone; he is hit on the head.

If you go back a stage and let us say that there was no physical altercation between them before he went to the telephone and that they had been arguing verbally and that she strikes him and then in that situation he pushes her and she falls, gets up again but sustains the serious injury at that point, gets up and thereafter he does something when they both continue their altercation and he may at that point determine to do serious injury, but it is not that activity at that time that causes the death. So that encapsulates, in our submission, the problems that exist in this case.

KIRBY J: But you say there is no issue of credibility within the Whitehorn sense, but was there not - your client says he made this flick and pushed the deceased away.

MR KENT: Pushed, yes.

KIRBY J: But there was the objective evidence from neighbours of hearing three or four thuds which would be consistent with the wall theory, that the deceased - - -

MR KENT: They would be consistent with a whole lot of other things. It is speculative to say that they were acts of - that it actually involved the body of the deceased in any way, your Honour. There is no way you can conclude that, and that is the problem with the reliance that was placed by the Court of Appeal upon Mr Cronin's evidence. For example, it is obvious from the photographs there is a hole in the plaster wall at one point. There is another witness who said the banging he heard sounded like banging on a door - he was a carpenter - and then he said he heard some softer thuds. There is a chair knocked over on the floor. In addition to the vase with which the appellant was struck, there is a pot plant on the floor. There is a small telephone on the floor. There are telephone books on the floor. A tablecloth and place mats are on the floor in a heap near the table in the dining area.

So there are many possible explanations as to what those sounds were and it is just not open to say you can invite a jury by looking at some injuries postulating a theory that the thumps coincided with physical acts that involved the head of the deceased. It is just not open to do so. It is not reasonable to so conclude. That seems to have been the thrust of the way in which the prosecution put its case. They have invited the jury, on the basis of evidence which it was not open to do, to come to the conclusion that there was a coincidence of these sounds with the fatal act. It simply does not follow in this case.

In dealing with the matter, having correctly stated the question in the case, the Court of Appeal does not answer those questions. It says Mr Cronin's evidence is very important. Mr Cronin says, "I heard some thumps and that's towards the end of the altercation", but is it towards the end of the altercation? It may be that an altercation continues but at a level that it is not heard outside. It is not open to assume because various people hear sounds and then no more that at that point the fatal injury had in fact been received. We just do not know the answer to that.

KIRBY J: It says in Whitehorn:

Where a result may have turned wholly or largely upon questions of credibility or upon competing inferences -

then the jury has the particular advantages. Why is this not a matter for trial before the jury? Competing inferences. Was the deceased killed by a flick and a fall and an accident or was the deceased killed by having her head struck against the wall, which was the Crown's hypothesis, confirmed by witnesses who gave their evidence on oath that they heard bangs consistent - some of them were demonstrated apparently orally to the jury - that the jury is in an advantageous position to sort this out.

MR KENT: No, with respect, they are not, your Honour, because with all the goodwill in the world, a juror hearing that evidence has no basis for drawing the conclusion that they were associated with the fatal act. It is simply not open. We have got this situation, if the jury were standing outside a place and you heard a number of banging noises, the evidence of Professor Cordner is that there was - the injuries could represent as few as two events of trauma to the head, but could be three or more. If you go back to the two, and we have got seven banging noises, what are they? And how can you say any of them relate to any injury to the head at all?

BRENNAN CJ: He says one. One decent blow.

MR KENT: One decent blow can cause the fatal injury, but he says as to the bruising, there must be more than one. He says two, three, perhaps more. But, yes, one blow can cause the fatal injury.

KIRBY J: He said something about the bruises on the leg, that they were consistent with a fall. In some stage, it might be helpful - to me, anyway - if you were to direct us relevant to the passage that the Chief Justice identified in 535 to the evidence of Professor Cordner.

MR KENT: Yes, I propose to do that, your Honour. If I can just say this; that with respect to the evidence of findings of other injuries other than the head, Professor Cordner says there are injuries consistent with falling to the floor, such as abrasions to the elbow, for example, and I think on the back of the leg, or the buttocks area. And then, of course, we know the evidence is that she was lying on her back when the appellant's brother arrived and, when the first police arrived, she was then turned onto her side as a first aid resuscitating measure by police officers; but that, the only evidence is that she was seen to be lying on her back. Now, if she is on her back, she can strike her head in the occipital region, and it is that sort of area of trauma about which Professor Cordner speaks as being consistent with the ultimate findings as to the sub dural and sub arachnoid haemorrhages, and the oedema and so forth.

Perhaps if I can deal with the matter in this way. If before going to the evidence of Professor Cordner, if I could deal with a summary of the evidence of the neighbours and I will direct the Court to some passages, but I will not necessarily go and read them out at this point.

BRENNAN CJ: By all means do so, but the evidence of the neighbours shows that there was obviously quite a Donnybrook going on in the house and that there was screaming, yelling and at one stage and perhaps most significantly he was heard to say "I'll fix you, you", undistinguishable.

MR KENT: Trails off.

BRENNAN CJ: So that there was some evidence of a statement made from which an inference of intent could be drawn.

MR KENT: Perhaps, your Honour, but - - -

BRENNAN CJ: Well, could be drawn. In the circumstances said it could be drawn.

MR KENT: Yes, but once again, even if one accepts that - and I am sorry, your Honour, I did not mean to cut across your Honour - there is still the difficulty as to whether or not you can say that the fatal act was carried out with that intention.

BRENNAN CJ: Quite. All that the neighbours' evidence can do is to show that there was such a to-do in the house that when that evidence is combined with the evidence of the injuries which she suffered it would be difficult to resist the inference that at some stage during the proceedings he had the intention which is relevant to the crime of murder.

MR KENT: Yes, we do not seek to argue the contrary to that, your Honour.

BRENNAN CJ: Then all that is relevant to be done, I should have thought, is to deal with the question of whether the evidence of the to-do and the inference that can be drawn as to his intention in the course of that is one which is to be attributed to the specific act which caused the death.

MR KENT: Yes, your Honour.

GAUDRON J: But you do put it somewhat differently, do you not? I mean, you have a specific hypothesis, namely, that there was a particular event at the phone which led to the injuries. You have to - - -

MR KENT: It is one of the possibilities, yes, your Honour, but what one does not have to do - one still has got to - - -

GAUDRON J: I am not too sure that you do not. I mean, if you have got a situation in which the overwhelming inference is that at some point there is an intention to cause serious harm, I am not too sure that you do not have to show some distinct change before any hypothesis of a change in intent is reasonable.

MR KENT: With respect, your Honour, I do not think you do, but I am not uncomfortable with that in any event because it still leads to the same result. One still could not say it was open to convict in the circumstances of this case, but if you go back. One of the problems with it is that really the question that is concerned here with the competing hypotheses or inferences is it is really dealing with the very fact of the burden and standard of proof and that the argument in my submission sometimes gets distracted by referring in terms to competing hypotheses - - -

GAUDRON J: It is all very well to say it is dealing with the burden and standard of proof, but the question now is whether the jury must have entertained - - -

MR KENT: A reasonable doubt, yes.

GAUDRON J: - - - must - could not have formed the view beyond reasonable doubt and that does change the emphasis of it.

MR KENT: It does to some extent - - -

GAUDRON J: And particularly in the context in which you concede that the jury could have reached the view of the required standard that there was at certain times an intention to do really serious harm.

MR KENT: Yes. Well, you see, your Honour, in a factual scenario, Knight's Case has got a similarity there where with respect of one set of charges it is held that Knight has got a specific intent as to a shooting and then another shooting involved in the same incident it is found that it is not open to conclude that he did have that intention. So there is an example of fluctuating - - -

GAUDRON J: Yes, but there was a change there too. In Knight's Case there was - - -

MR KENT: Yes, there was.

GAUDRON J: - - - in the sense that there was a grappling with the gun.

MR KENT: Yes, indeed there was, your Honour, but that nonetheless I simply refer to that factual matter as a recognition that a person once forming a particular intention does not necessarily keep it on until the whole event is completed and they may well vary within the time, but, your Honour, once again, although one can say that it was open to the jury to find that there was at some point an intention to cause serious injury, at what point was it? Was it at the beginning? Was it at the middle? Was it at the end? One simply cannot answer that. You cannot say. If one assumes this, it is open to the jury to say that the act of pulling the hair itself is evidence of that intent, it is possible that an intention to cause serious harm was a specific intention and to cause that harm by the pulling out of hair and nothing else and that a person having done that, each and every one of their other acts may not be accompanied by the same intention.

GAUDRON J: You have got to go beyond saying, "It is possible to form that view." You have got to go to say, "They must have formed that view but rejected the possibility of that intention at some other point." You have got to go to say, "They must have rejected it."

MR KENT: No, they must have rejected; they did not.

GAUDRON J: They should have, yes.

MR KENT: They should have.

GAUDRON J: Yes, must have had a reasonable doubt.

MR KENT: Yes, your Honour, precisely. The difficulty is that because the question was not formulated as specifically as it was by the Court of Appeal, one would have some disquiet about whether the jury, in its verdict, you are able to say, well, it is better for the jury - and it is easier for them to determine this question than it is for us - and then the question is, was it open? If it is a reasonable possibility that there was a variation of intention, where is it on the evidence that the jury can reject that and say, beyond reasonable doubt, that that intention accompanied the relevant act. It is not just a matter of - - -

GAUDRON J: I am not too sure that that is right. Do you not say, where is the evidence giving rise to an hypothesis?

MR KENT: It is an entirety of the evidence, with respect, your Honour.

GAUDRON J: I am not too sure that that is right. I mean, the only evidence giving rise to the hypothesis really, is it not, is the evidence of the appellant of the making of the phone call.

MR KENT: No, with respect, your Honour. The evidence is that over a period of time there were a range of acts that occurred. That follows, not only from the evidence of the appellant but also from the evidence of the neighbours that extend that allowable time of this matter to a period exceeding an hour. If it is not reasonable to say that there was a single and sustained act for over an hour, because one would have seen a lot more injuries and a lot more serious injuries, it is significant that Professor Cordner says - and he regards it as significant with respect to the degree of force used - that there are no fractures; no fractures to the scull, the facial bones or anywhere.

There are effectively no open wounds. There is the abrasion to the elbow which possibly could have produced bleeding, but there are no lacerations such as occur with significant trauma to the scalp, for example. So that what the evidence does disclose is that although it is open to find there are a number of acts of trauma inflicted upon the deceased by the appellant, you cannot say that they were all inflicted with such ferocity that each and every one of them was accompanied by such an intention. One of course has to look at it in combination, because you could have a scenario where somebody starts off to weaken their opponent and the individual blows that they strike themselves are not designed to cause the harm, but the intention ultimately of causing the serious harm exists when those blows are struck.

You can have equally another scenario, where a person gets into an altercation and actually strikes without having an intention of causing serious harm and then the intensity and the level of it increases. So that really this case is a matter of pure speculation as to which point that intention was reached and as to what moment and what act it was that caused the fatal injury. It really is to speculate; it is not a reasoned process.

KIRBY J: You accepted Justice Gaudron's statement of the test that the jury must have had the view that it was inconsistent with the hypothesis of innocence. When one actually looks at the cases some of them talk in terms of a jury could or should, and some of them talk in terms of the principle that the possibility must be excluded as a rational inference.

MR KENT: Yes.

KIRBY J: Where does one find the locus classicus at the formulation of the rule?

MR KENT: The judgment of Justice Dawson in Whitehorn and of the Court in Knight, in my submission, deal with those matters.

KIRBY J: Do not worry, I will - - -

MR KENT: And, of course, your Honour's judgment in Cutter dealt with the question for the appellate court.

KIRBY J: It may be that it is a play on words to move from "must". It may all be the same principle. Indeed, Chief Justice Barwick in Ratten said - - -

MR KENT: Yes, because the expression "ought to entertain a reasonable doubt" equates to "must". But is there a reasonable possibility of an innocent hypothesis? If it is a reasonable possibility, does it follow that the jury ought to entertain a reasonable doubt, unless there is a basis for the exclusion of that other possibility? So that, it perhaps is ultimately a play on words. There is a difficulty about it conceptually, that we have a situation where, for a trial judge to leave a case to a jury, it is left on the basis that there is some evidence upon which a jury could convict, and then we leave it open to the appellate court to say that the evidence was such that they ought not convict, or they must have entertained a reasonable doubt. So, we have moved from the jury question to the appellate question, and there appears to be something of a contradiction between those two things.

BRENNAN CJ: That is the problem with Doney's Case, is it not?

MR KENT: The problem with Doney's Case, your Honour.

BRENNAN CJ: We do not have to re-examine Doney's Case at this stage.

MR KENT: I wish we could, with respect, your Honour.

BRENNAN CJ: Well, that is a view which might find some sympathy in other respects also.

MR KENT: I am not endeavouring to argue it, your Honour.

BRENNAN CJ: No.

MR KENT: But that really does flow from the situation in Doney's Case, where previously a trial judge might have said, "It would be dangerous to convict, and I will direct the jury to acquit, although there is some evidence - prima facie evidence," however you like to express it. But we get to this situation where if one says the jury, in reaching a verdict of guilty, has rejected the hypothesis consistent with innocence, the question then is, was it properly open for them to do that? And how does one express that test? Ought the jury to have entertained a reasonable doubt upon this evidence?

That can then be converted into saying, "Well, I have reviewed the evidence and I say they must have had a reasonable doubt," which, of course, they did not have, but means they ought to have had, and that the hypothesis still remained as a reasonable possibility. It did not become unreasonable or untenable by virtue of some logical thought process based upon a proper consideration of the evidence.

Now, this case, it is my submission, is a case where it is easy for the appellate court to undertake the exercise of a review of the evidence because it is not complicated by the question of engaging in the fact-finding process that a jury often has to in determining between conflicts in evidence; whether a witness' credibility is such that that witness needs to be accepted or rejected. In this case, we would submit that, like in Knight's Case, where it was open in Knight's Case that Knight gave false account of what happened, and an explanation that was not consistent with the evidence. That does not get in the way of, or provide evidence for the purpose of rejecting the other reasonable hypothesis.

Now, even if you look at this case and say the explanation of the appellant does not sufficiently account for the noises that were heard and each and every one of the injuries that were received, does that help in saying therefore it is open to say that an hypothesis that her fatal injury was caused without the requisite intent is excluded?

TOOHEY J: Mr Kent, could I just ask you this? When the matters moved from the Court of Criminal Appeal to this Court - and it is not suggested that there was any misdirection, and it is accepted that the Court of Criminal Appeal posed for itself the correct question - what does the function of this Court or, perhaps, on what footing does this Court then say nevertheless the appeal should be allowed?

MR KENT: It says it on the basis that it is not sufficient for the appellate court to properly state the test; it must properly apply it. It is our submission that it is plain from the judgment here that they did not because, whilst having stated the test, they then simply leapt to say as an assertion, "We find it was open to the jury to so conclude".

TOOHEY J: But does this Court say the Court of Criminal Appeal was wrong?

MR KENT: Yes, it can do that, your Honour.

TOOHEY J: It was not open to them or - - -

MR KENT: Yes, it can do that, your Honour. It was not open because a proper review of the evidence undertaken by this Court demonstrates that that that was wrong.

TOOHEY J: To say it was not open might put a narrower test from your point of view than to simply say that they were wrong.

MR KENT: They were wrong, yes, and plainly they were, in my submission, in this case and therefore the Court can intervene, as it did in Cutter. There is no suggestion in Cutter that the Court stated the test incorrectly, but the majority of the Court said that the test - they did not use this expression but it follows that the review of the evidence indicates that the test was not properly applied, although it was properly stated. That is my paraphrasing of it. I am not suggesting they are the words of the judgment, but that must follow. So that the appellate court must always be alert, that it is not sufficient for it simply to correctly state a test and then not correctly analyse the material.

TOOHEY J: Are you inviting this Court to carry out the sort of independent assessment which the Court of Criminal Appeal was asked to carry out?

MR KENT: Yes, your Honour, and that is supported by what the Court said in Whitehorn, in my submission. At page 689 of Justice Dawson's judgment:

If the verdict in this case ought not be allowed to stand because it is unreasonable or is not supported by the evidence, then the Court of Criminal Appeal in South Australia had power, as does this Court upon special leave to appeal being granted, to set the verdict aside.

So that it is not that a court of appeal can save its judgment simply by correctly stating the test.

KIRBY J: I think that question arises at the special leave stage.

MR KENT: It really does.

KIRBY J: In other words, if they have stated the correct test, why give special leave? It is merely an application of the facts but, once you get through the barrier, then this Court has its functions to perform.

MR KENT: It is my submission that is correct, with respect, your Honour. Once again, I think I am right in saying that the majority - and I think your Honour in your Honour's dissenting judgment - actually referred to that in Cutter. So that we do not, with respect, disagree with your Honour's exposition of the law but only with the result in Cutter - not with the result of the case but with your Honour's conclusion. Your Honour examined this question in depth as to what is - - -

KIRBY J: I am still troubled by the point Justice Toohey raised at the outset, and that is, in every case there are going to be competing hypotheses. It may be that one cannot do any more than to say, "Well, acknowledge the jury's advantages and do not allow speculative or purely hypothetical issues to intrude, look at it practically and respect the jury's right to evaluate the inferences and pay particular regard to the caution that is needed, where there is credibility issues or competing inferences." If you state that may be all you can do is state those generalities and the divisions of the Court in these sorts of cases, including Cutter, illustrate the different response to those generalities.

MR KENT: Yes, your Honour. With respect, that perhaps is where one ends up. It is difficult to precisely formulate, in a succinct manner, a formula that resolves the question once and for all. An examination of the cases themselves demonstrate that difficulty. One might - - -

BRENNAN CJ: There is one formula which I would have thought you can formulate and that is, if upon the evidence there are two reasonable hypotheses which are open, one of which results in acquittal or conviction for a lesser offence, pursuant to Peacock's Case the jury is bound to take the innocence inference.

MR KENT: Yes, that is so, your Honour. It then becomes a question of doing not what the Court of Appeal did in this case and said, "We say it was open to the jury to find proposition A," and not deal with whether or not the other hypothesis remained open as a reasonable possibility.

KIRBY J: The problem lurks in those words "reasonable possibility".

MR KENT: It does.

BRENNAN CJ: That is right.

KIRBY J: The jury is the constitutional or traditional tribunal to evaluate these reasonable - and there will always be a different hypothesis, which will be accused's hypothesis.

MR KENT: Yes, but the jury to be able, on review of that verdict, to be able properly to reject the hypothesis consistent with innocence, has to have a proper logical evidentiary basis for its rejection. It cannot be simply a matter of saying, "Give the jury the right direction and then allow them to make the choice." That is not what - - -

KIRBY J: What was wrong in this case with the jury saying, "We've got the accused's unsworn statement, and we take regard to that, but we have got all these neighbours who talk about thuds and bumps. We draw an inference that it was the thud and the banging against the wall that caused this woman's death, that was the final - - -

MR KENT: They simply cannot do that, with respect, your Honour.

KIRBY J: Why?

MR KENT: They cannot do it because the thumps - - -

KIRBY J: Why cannot they, consistent with their common sense?

MR KENT: It is not a matter of common sense, that is a matter of speculation. If one takes the evidence, there is evidence, direct evidence that banging noises that are heard by two of the witnesses, the Steeles, that the thumping sounds they heard were consistent with furniture being knocked over. How can one say, when there is furniture knocked over, when there are items on the floor, that it is open to the jury to say, "We can reject, as a reasonable hypothesis, that the sounds that were heard were other than the deceased's head being struck or striking some object. It simply cannot be done, your Honour, because there are other possible explanations.

Let us say, for example, we had a situation where there was a padded room, with no furniture in it, and the deceased is found on the floor and there is a large piece of wood, and sounds outside the room are heard, thumping sounds, that the possibilities open would be that the piece of wood was thumped into the padding of the room or else let us say the only injury is to the head of the deceased and there was evidence of a trauma to the head of the deceased consistent with blunt instrument impact, it would in those circumstances be open to the jury to say, "The description of the sounds that has been given, the absence of other explanations, there being one slight possibility, the fact of the injury combines to say we can find that the sound that was heard coincided with the blow being struck to the head." In this case that is simply not possible.

BRENNAN CJ: Mr Kent, I think we understand the general purport of your argument. There is no purpose in putting it in terms which might court discussion with the Bench. What you really need to do is to identify the passages in the evidence, is it not?

MR KENT: If the Court pleases. I think from what your Honour said to me before, it is not necessary for me to deal in detail with the evidence of the people from outside the premises.

BRENNAN CJ: Perhaps you should give us the page references.

MR KENT: If I can go through that, the first witness was George Mead. His evidence of significance is between pages 53 and 58. I have references to pages 53, 54, 55 and 58 as being of significance. He said that he heard kicks and bangs against the front door, page 54, other softer noises, "wouldn't have a clue what they were". It was put to him at page 53:

You know what the noise is -

you hear -

but you don't know what it means?

He agreed with that proposition. He said that the voices he heard were for more than 10 minutes, more than half an hour. Ashleigh Rawlings' evidence commences at page 60. He says at page 61 that the argument started at about 10.20. He heard swearing, it went on for about an hour, banging noises and a glass plate breaking. He says the plate broke before the banging noises and he heard the words "Get off the floor, you weak bitch" after the banging noises. There were three Rawlings witnesses. John Rawlings said there was lots of yelling and shouting, it went on for an hour, heard four or five thumps at what he said was the end of the argument.

It is my submission that the best that can be drawn from that, when people refer to the end of the argument, is that they are saying, "That is the last I heard". It does not mean the argument had stopped. The jury could not come to that conclusion. Kenneth Rawlings, page 74 said he heard swearing, same as usual. He went to bed. There was lightning and thunder that night, he said at page 77. Julie Steele at page 78 heard three loud bangs, a lot of swearing and language. At page 80, "the noises were consistent with furniture being knocked over in the flat". Gary Steele, her husband, heard thumping and a bit of swearing. The sounds were between 9.30 and 10, at page 80. He agreed in cross-examination at page 84 that the thumping was consistent with furniture being knocked over.

Mr Cronin's evidence commences at page 99. He was visiting a friend. At page 100 he heard a lot of singing out and screaming. He heard some words that were called out. They are documented at page 100. It is perhaps not necessary for me to repeat them other than he said after a lot of scuffling he heard a female voice say, "Stop it. Stop it. You're hurting me." He said there were six or even thumps all told, then "Stop it" was heard. He heard nothing after that and he heard the expression, "I'll fix you, you ...", and your Honour has referred to that earlier. He said the noises went on for 10 to 15 minutes at page 102.

In my submission overall on that, there are many other pieces of evidence that could explain the bumping noises and that therefore it is not open. There is the explanation by the appellant himself given in the interview at question 333 about bumping into the wall. He denies banging the deceased's head into the wall, question 488 of the interview. There is a chair on the floor, telephone on the floor, a flower pot on the floor.

GUMMOW J: Any other furniture?

MR KENT: Not furniture that is over as such. There is evidence that the coffee table itself is at an angle to the couch, not lined parallel with the couch, which might be an indication that it had been moved in the course of the altercation and the house, for what it is worth, is relatively neat and it can be seen that it has been systematically and well looked after.

KIRBY J: So the only piece of furniture is one chair overturned?

MR KENT: There is one chair is the piece of furniture - - -

KIRBY J: It does not sound like an explanation for multiple thuds.

MR KENT: No, but there is a hole in the wall, your Honour. There is - - -

KIRBY J: But it could be then made by a head, could it not, banged up against the wall?

MR KENT: It does not look like it, with respect, your Honour.

KIRBY J: Was there blood or was there - - -

MR KENT: No, your Honour.

KIRBY J: I see. Well, that tends to exclude that, does it not?

MR KENT: It does. It is in the photograph 22, perhaps if I could - - -

BRENNAN CJ: The absence of blood would not exclude it, would it, because there was no blood?

MR KENT: No, it would not. She is not suffering significant lacerations or potentially bleeding injuries. Photograph 22, it really, on any view of it, is not consistent with that being somebody's head.

BRENNAN CJ: Are there sets of photographs available?

MR KENT: There are attached to the appeal book photocopies of the - yes, they are there, if the Court pleases.

BRENNAN CJ: What are we looking at? Photograph 22 is it?

MR KENT: Twenty-two, yes, and there is a significant hole shown on the right of the photograph and then there is another significant mark to the left, but not looking anything like that is the contact of a head with a wall.

KIRBY J: Was there cross-examination about the origin of that hole?

MR KENT: No, there is not, your Honour. With respect to other matters that could account for those sounds, photograph 10 there is a brass vase that is knocked over, it is on top of the stereo unit. The evidence of the crime scene examined, Mr Ashley, at page 168 is that there was a dent in the base of that vase.

BRENNAN CJ: Where was the body found lying?

MR KENT: Your Honour, I think photograph No 9 was the one that was referred to in evidence by a number of witnesses and in photograph No 9 one can see a coffee table in front of the couch and the evidence was that the head was near variously within one to two feet of the table with the feet towards the bottom of the photograph.

GAUDRON J: And where is the telephone?

MR KENT: The telephone is almost directly across the room from that position. In photograph 10 you can see the telephone on a small telephone table just to the right of the bat-wing doors, your Honour, and also in photograph 10 one can see telephone books on the floor, a plate on the floor. There are some cards on the floor. I am not suggesting the cards could make a thumping noise, but telephone books certainly could. I have earlier referred to the fact that in the vicinity of the table where the chair is on the floor, the tablecloth itself, there is a tablecloth screwed up on the floor and that placemats are on the floor consistent with that having been grabbed at some stage and pulled off the table, which could result in noises of people contacting that furniture or moving it in the course of that happening.

BRENNAN CJ: The ceramic vase, I presume, is that which appears in photograph 11, and can be seen in photograph 10, is that right?

MR KENT: Yes, your Honour. What is apparent is that at photograph 10, on the table there is a black object with a white line that one can see on the coffee table.

BRENNAN CJ: Yes.

MR KENT: Now, that has apparently been moved. It was not found in that location. It has apparently been moved at some stage. But that was the base in which the object with the - the tall object near the speakers with the plaster base that you can see in photograph 11 apparently was inserted into the vase, which formed the base, and the base is broken.

BRENNAN CJ: But the plaster has remained intact.

MR KENT: The plaster has remained intact, and there is some blood on the plaster you can seen in photograph 11, your Honour.

BRENNAN CJ: That is his blood, I presume.

MR KENT: Presumably, your Honour. I do not know that there is actual evidence as to the analysis of that.

KIRBY J: The deceased did not have any lacerations?

MR KENT: Sorry?

KIRBY J: Did the deceased have lacerations on her neck?

MR KENT: She had an abrasion which could have caused bleeding, and blood of hers was located in various places, your Honour. So, there was some bleeding by the deceased.

BRENNAN CJ: From where?

GUMMOW J: It is on the light switch, is it not?

MR KENT: From an elbow, I believe, is the most likely place. Professor Cordner says that he would not discount bleeding from the mouth and the nose, but there was no evidence of that.

KIRBY J: This facility of unsworn evidence as distinct from an unsworn statement, is this some ancient facility in Victoria, is it?

MR KENT: Well, it is a modern facility, but it is now redundant, your Honour.

KIRBY J: It has been abolished?

MR KENT: Yes, your Honour. It existed for but a short time. It replaced the unsworn statement, and now it has been abolished altogether.

BRENNAN CJ: Could I draw your attention to photograph 15?

MR KENT: Yes, your Honour.

BRENNAN CJ: There seem to be two telephones; one on the floor, one on the - - -

MR KENT: Yes, your Honour.

BRENNAN CJ: What is the one on the - - -

MR KENT: Yes, your Honour, there is evidence about the one on the floor; that that normally was located in the telephone table, where the other telephone is, but that it was a telephone that was not connected to anything and was unable to be used. The appellant was interviewed about that, and explained about how he had always been going to try and wire it up somewhere but never had. So, it is open to say that that has travelled in some manner from the telephone table to the position in which it is lying on the floor. Again, it is a possible cause of thumping or banging noises. There is a teledex on the floor behind the telephone table.

TOOHEY J: Mr Kent, does the mark in the carpet, which appears as a sort of a grey mark and appears in a number of the photographs - 10, 9 and others - more or less in the region of where you indicated the body of the deceased lay, does that have any significance at all?

MR KENT: I think what it is, your Honour, is of some packaging that would have been opened up by the ambulance people with respect to the treatment of the deceased, if that is the mark your Honour is referring to.

TOOHEY J: Well, it is perhaps clearest in photograph 9, coming straight down from the leg of the chair that is in the left of the photograph.

MR KENT: Yes, your Honour, I think I am right in saying it is some plastic packaging out of which some - it is not referred to as being of any significance with respect to the case, and I think it is fair to conclude that that is what it is, your Honour.

TOOHEY J: Thank you.

MR KENT: It is some sterile packaging been opened up. There are plans in the appeal book. Page 356 of the appeal book has a plan which shows the location - it is a floor plan, and so it shows the location for various - there is apparently an enlarged plan been prepared for the Court. I do not know whether my learned friend has got one for me or not.

BRENNAN CJ: Was this in evidence?

MR KENT: Yes. It was not in that form, I do not think, your Honour. I am sorry, that is not the plan to which I had earlier referred the Court; this is a general plan of the - - -

BRENNAN CJ: Was the document which we have now been given in evidence in the courts below?

MR KENT: I do not know the answer to that, your Honour. Yes, I am told by my learned friend.

GUMMOW J: It is page 358, is it not? Is this a blow-up of page 358?

MR KENT: I was referring to the plan at 336. Was it 356, I am sorry. The plan that has just been handed up of the floor plan - the properly surveyed plan of the premises - does not show the location of the various items which are shown in 356, and that points out a number of the matters to which I have referred about being potentially causing, or potential causes of the thumping sounds.

GUMMOW J: There were no adjoining units, were there, no common walls?

MR KENT: I think there is, in fact, your Honour.

GUMMOW J: They are all one storey?

MR KENT: It is single storey and they are called units and I think - they are separate buildings on the block apparently, your Honour.

BRENNAN CJ: Were there no photographs taken of the body in the position in which it was found?

MR KENT: No, your Honour. No, there was an emergency situation. She was, of course, still alive. She lived another approximately two days before the life support systems were turned off, your Honour.

BRENNAN CJ: Yes.

MR KENT: But another significant matter on this point with respect to the possible noises that were emanating from this place is the pot plant in the corner shown in the plan in 356. It is photographed. It can be seen in photograph 6 in the left-hand corner of the photograph and a close up of it in photograph 7. It looks like an African violet that is on the floor and there is dirt everywhere and, again, that was spoken of in the interview and the appellant refers to it being knocked in the course of the skirmishing between them and so there are - - -

BRENNAN CJ: Where was the hole in the wall, which wall?

MR KENT: I do not know to tell you the truth, your Honour. In fact, there are marks against the wall. If one looks at photograph No 5, down low there is a mark on the wall. My learned friend, Mr Flatman, says that the hole in the wall did not receive attention during the trial. That is so, but I am simply detailing matters that are in evidence that are possible causes of thumping noises and when there is evidence of those things as opposed to a situation where there is no other available evidentiary basis that the sounds were caused otherwise, then it is impossible to draw the conclusion that the thumping noises that were heard were associated with any injury in fact to the deceased, let alone the infliction of the fatal injury itself, and the Court of Appeal has significantly erred in placing the emphasis it did upon the evidence of Mr Cronin with respect to that matter.

BRENNAN CJ: Just one other question.

MR KENT: Yes, your Honour.

BRENNAN CJ: The post-mortem photographs which are taken seem to reveal some redness at the back of the neck over the ears and some bruising around the ears. Is there any evidence as to whether that was something which occurred post-mortem or whether it was something which was sustained by the accused in the - - -

MR KENT: Your Honour, there is evidence of discolouration - - -

BRENNAN CJ: Deceased, I am sorry.

MR KENT: - - - of the body of the deceased that Professor Cordner refers as to being post-mortem colouring.

BRENNAN CJ: Post-mortem.

MR KENT: With respect to the ear, I am not sure which photograph - is your Honour referring - - -

BRENNAN CJ: Photographs 38 and 39 I was looking at and 40, I suppose.

MR KENT: Photographs 38 and 39. Yes, Professor Cordner speaks of the bruising that one can see certainly in 38 and I will be able to refer the Court to the detail of that, but he says that that bruising may well be the result of gravitational bleeding from another point and is not - - -

BRENNAN CJ: From the intracranial area?

MR KENT: No, your Honour. No, as a result of either other trauma higher up or as a result of the pulling of the hair itself which could cause bleeding beneath the skin and he was asked specifically about that. As to the discolouration shown in photograph 39, I am not aware of there being any direct evidence with respect to the reason for that.

BRENNAN CJ: Yes.

MR KENT: But I do not think there is any direct evidence of it being - anybody expressing an opinion it was the result of trauma.

BRENNAN CJ: No, it might have been just a post-mortem hypostasis.

MR KENT: Yes, and he does refer to that with respect to some of the discolouration on the back of the body in any event. The next phase of the evidence, really, is the evidence of the witnesses after the event. Darren Meyers, page 107, he spoke about being in contact with his brother earlier in the day. I do not think that that earlier day in drinking, there is no dispute that a lot of drinking had been done by both the deceased and the appellant on that day. There is a blood alcohol reading with respect to the deceased, and a Mr Drummer extrapolated from that evidence that she might have been point 1 to point 15 per cent blood alcohol concentration at a period some four to five hours earlier than the taking of the blood sample itself, which puts it near to the time of the incidents.

Mr Meyers says that at 11 pm, page 108, he got a phone call from his brother:

Come round. Help me, I've got blood coming out of the back of my head. Tracey is lying on the floor, pretending to be unconscious.

He went with his mother to his brother's unit. He saw the broken ornamental vase on the floor and the flower pot that was knocked over, and he thought there were one or two flower pots knocked over. Page 109, he saw that his brother had a cut to the back of his head; he was a little bit upset and agitated. Tracey was on the floor. She was not moving but she was breathing all right.

It is significant, in my submission, that of the people who saw the deceased on the floor, there were no apparent injuries in that situation. If one endeavours to classify this as a sustained brutal attack, one would have expected that there may have been more obvious injury to the face, for example. There is evidence of a bruise, and the photographs show a reddening, which seems a little curious, to the eyelid in view of the fact that the reddening is post mortem and it is some more than two days before the deceased died. Nonetheless, there is evidence that she had an injury to the eye but not that it was obvious - this is on admission to hospital - not that it was obvious to the people who attended.

At page 109, Darren Meyers say, in the conversation with his brother - this is 109 to 110 - that he told her she was just pretending:

"I got home and she hits me over the head with this -

and he handed him a piece of the vase:

I pushing her around and she fell over and hasn't got up since.....I pushed her or whatever.

This is Darren Meyers:

I yelled at her to get up. When she didn't I thought I'd ring the ambulance. Then I said, "I'm going to ring the police."

Then her breathing got heavy. He said that he thought of saying that he was going to ring the police because he believed that she would then respond and get up, such was his view of her condition. The appellant's mother, Marlene Meyers, gave evidence, page 112. She went to the unit and went inside for a little while. At page 113, she saw Tracey on the floor in the lounge room. She was bruising. She saw she had a bruise on her calf of her leg. No evidence of any other obvious injury was given.

TOOHEY J: That strikes me as a bit bizarre. The woman had had, what, seven clumps of hair pulled out, that were distributed around the apartment, and you saw - we are asked to infer that the witnesses were saying there were no obvious signs of injury.

MR KENT: Yes, that is so with the police officers and the ambulance people, your Honour, and I will deal with their evidence in a moment. This is their view of the scene when they walk in on it. Mrs Meyers said Noel "was yelling out about his head"; that "Tracey had hit him on the head with a pot plant."

BRENNAN CJ: How did he get the cut on the nose, do you know?

MR KENT: I think he says it happened at work, your Honour. There were some other marks on him and he seems very frankly to have not tried to attribute them to this incident. The ambulance driver, James Barrett Lee, page 117, was not the first ambulance person in. When he went in, ambulance officer Jones was dealing with the deceased. He had inserted an airway to assist in respiration. He said at page 118 there was no evidence of obvious injury. This is the ambulance officer. Kenneth Jones was the first ambulance officer in at 11.41, page 119. He saw a female on the floor, he said, "No obvious external injuries. There was some hair on the floor beside the patient". He administered tests to determine whether or not there was a nervous response and so on and he quickly came to the view that this was a serious situation.

Police officer Frith at page 122 entered the premises, he saw some hair just inside the front door, a broken object on the ground like flower displays. He saw Noel Meyers on the phone in the lounge. He saw an injury to the back of his head. He saw Tracey McNamara on the floor on her back. I do not know whether I said the time. He got there about 11.25. I am going through the evidence in the sequence it appears in the transcript and the way it was called, but the police were there before the ambulance officers. He said at page 124 that her head was near the coffee table where the piece of hair is on the coffee table. Her feet were coming towards the bottom of the picture. She was making noises like snoring. He spoke with Mr Meyers, page 152, "don't know how she got on the floor":

Look what she has done with my head. She hit me with that pot plant.....She is faking. When she saw you arrive she laid down on the floor and said, "I will fix you." I said, "Did she fall or did you push her at all?" He said, "No, she is faking it -

At page 153 he showed Mr Frith the cut to his head. He said:

"I have had enough.....I want to press charges against her.....I remember pushing her away from me because she was trying to punch me.....I don't know if she fell down because I went to use the phone."

At page 155 he refers to the coffee table being at an angle to the couch. Mr Frith said he could smell alcohol from both of them. It was strong from Mr Meyers. David Pickert, 11.30, another police officer. Mr Meyers was on the telephone when he got there.

TOOHEY J: What page reference was that?

MR KENT: He is page 156. He said broken objects and things were scattered all over the floor. At 157, Tracey in the middle of the lounge room on her back, head at the foot of the table, feet towards the middle of the room, head a foot or two feet away from the table, page 159. The appellant Meyers had been drinking and the deceased had been drinking.

At page 160 he said the deceased gave the impression that she:

may have been that she was asleep from the effects of alcohol, or unconscious from the effects of alcohol -

Mark Allan Eva, police officer, page 161, he had a conversation with Mr Myers. He arrived at 11.57. Myers told him they were arguing. He said he:

went to use the phone and she hit me over the head. I then pushed her ..... turned around and saw her on the floor.

He said:

She was talking to me until you blokes arrived."

At this time, when Mark Eva arrived, Darren Myers, the brother of the appellant, was outside and not inside the premises. So, there was only the appellant and the deceased inside the premises. Well, I may be wrong about that.

GAUDRON J: Sorry, the brother had gone out?

MR KENT: The brother had gone out, yes.

GAUDRON J: He had been, and called the police and the ambulance, and gone out.

MR KENT: He called the police from the house, the police arrived, the ambulance was called - police arrived before the ambulance, your Honour.

GAUDRON J: Who called the ambulance? The brother?

MR KENT: No, he called the police, and I think that he got onto D24, and that the D24 would have directly contact the service. I think I am right. There was a police officer called to give an account of that conversation. Yes, that is what happened.

GAUDRON J: So, the brother's evidence, and the mother's evidence then, was that she was on the floor and not speaking, but when the police arrived they are not there, and your client then gives a version that is inconsistent with that already given by his brother.

MR KENT: Yes, that is so.

GAUDRON J: Now, that is certainly a matter - it would be open to the jury to form the view that your client was lying at that time.

MR KENT: They could do that. They could say he was confused. They could form the view he is lying, but, if he is lying, then what conclusion can they draw from it? In my submission, it is not a matter from which they could infer - - -

GAUDRON J: Well, it does make the story of just shrugging her off when he is going to the telephone look a bit improbable, does it not?

MR KENT: Well, that is so; that story is improbable. Nobody disputes that, with respect, your Honour. But the question is, what do you make of that? You cannot make of it other than that here is a man who has come home late, he was drinking a lot, an incident occurred, varying on the estimates of other people from 10 to 15 minutes to an hour and a half, he gives accounts of bits and pieces of it, as one might expect a person would do having been drinking, involved in an incident like this, police arriving, ambulance arriving and so forth, and she is on the floor. There is considerable - - -

GUMMOW J: Talking, according to him, at one stage. Talking.

MR KENT: Yes, he said she was talking, yes.

KIRBY J: That cannot be true. That is another lie.

MR KENT: I suppose there is no evidence whatever to support it. I would not concede that - - -

KIRBY J: Given the injuries that had her on a life support system for two days, it is very unlikely that she was talking.

MR KENT: There is no evidence about it, and it depends upon the stage that she is at, because there is evidence that indicates that her condition was deteriorating and got to a worse situation after the ambulance people had arrived. Now, what she could or might have done in the meantime, or what impression she may or may not have given - I have referred to the evidence of one of the police witnesses saying she was making a noise that he thought might have been snoring, and that she might have been asleep as a result of intoxication. Well, other people might interpret noises differently, and utterances, sounds, could be interpreted in any way, and it may be that it is possible that a person in that state could speak or not; there is simply no evidence of it.

TOOHEY J: Well, there is negative evidence in the sense that neither his brother nor mother gave evidence that she was saying anything while they were present.

MR KENT: Yes, that is so. I would not contend for the positive proposition, your Honour, that she was in fact speaking.

TOOHEY J: But it goes a bit further than that, I think, Mr Kent, because if you look at the evidence at the top of page 162, there is this reference - the description of the incident by the appellant is really very much at odds as to duration and components, if I can put it that way, to the other witnesses, because it rather suggests that there was a brief altercation, as a result of which he was hit over the head, he pushed the deceased, and that was really it.

MR KENT: Yes, your Honour. There is no question of that, your Honour, but once again what does one make of that?

TOOHEY J: I understand. You say, "Well, where does that take you?"

MR KENT: Yes, and it really comes to this. If you look at the absence of an explanation of all the things, it does not prove the affirmative as to the proposition the prosecution at trial sought to rely upon what they determined as false denial as demonstrating a consciousness of guilt, but it is my submission that what you have got here is as to guilt of what? If you have caused somebody to fall over, if you have struck them a number of times, with or without an intention to cause serious injury, you may well say, "Well, I am minimising the situation," but it does not mean that that is because I am aware that some time down the track an element of the offence of murder, namely the intention to cause serious harm, is in my mind and, therefore, I am giving a false account - - -

TOOHEY J: No, I was not thinking of it in terms of what inference could be drawn by way of consciousness of guilt, but simply that the jury may well, and presumably did, simply reject his account and then had the account of the other witnesses as to how long this incident occurred, the noise, the screams and so on and then you ask yourself the question, "Well, was it unreasonable for them to conclude in those circumstances that the injury that caused her death was inflicted with intent to cause serious bodily injury?"

MR KENT: Yes, well, it is because it simply does not help answer that question, in my submission, your Honour.

TOOHEY J: I am not sure about that.

BRENNAN CJ: Why do you say the test is whether it is unreasonable for them to conclude?

MR KENT: Because as a matter of logic you have got a situation where a person may give an account minimising their role, that is given not because it bears upon the question of whether or not they had an intention to cause really serious injury.

BRENNAN CJ: That may be so but my question was really directed to the question of the way in which one approaches it. One could scarcely say that this verdict is an unreasonable one in the sense that no reasonable person could have thought that the offence was not that for which he was convicted, but that is not quite the test under Peacock, is it?

MR KENT: No, it is not, your Honour, and with great respect to your Honour, we would quarrel with the assessment that your Honour makes in any event because one must analyse this matter and it is not a situation where the evidence is that the deceased died as a result of a sustained beating. If that were the evidence, we have got a vastly different situation. Now, the Court of Appeal in fact at some stage referred to the way in which the Crown put its case - and I do not know that the Court of Appeal was doing the Crown justice with respect to this, but it summarised its argument by saying the Crown said the deceased died as a result of being bashed or beaten by the accused as a simplicita statement, but when one looks at the evidence as to the fatal injury it is not a situation of a combined series of injuries that caused the death, it is not the typical bashing death where you have got a whole lot of injuries and you have got medical evidence that says, "Well, any number of these injuries in combination in result in the death."

We have here a very specific cause of death and an absence of other serious injury, leaving aside the question of the hair that was torn out. The other injuries are relatively minor abrasions and bruises and that is significant in determining whether or not it is reasonable to conclude that at the time the fatal act took place it was the intention of the appellant to cause really serious injury.

TOOHEY J: Mr Kent, something you said in answer to the Chief Justice causes me to ask you whether in your submission this Court or, rather, the Court of Appeal was tied to section 568 of the Crimes Act in its determination of whether the verdict of the jury should be set aside. You have referred to Peacock and some of your submissions might suggest that there is some wider scope for interference with the jury's verdict.

MR KENT: Wider than as expressed in 568?

TOOHEY J: Wider than as expressed in 568.

MR KENT: Your Honour, the way I put that is that that section has been interpreted in a number of cases to encompass the concept of an appellate court setting aside a verdict where it would be unsafe or unsatisfactory or whether it is an unreasonable verdict on the whole of the evidence and, although it is not expressed in those terms, it has been held that the various statutory provisions throughout Australia have the same effect and the appellate court can set aside a verdict when, to allow it to stand, would constitute a miscarriage of justice expressed in many and varied ways.

TOOHEY J: I understand that, and you say as a matter of construction, but I take you not to be saying anything other than that section 568, as properly construed, is the basis upon which the jury's verdict was either set aside or not set aside.

MR KENT: Yes, it is, but then as the interpretation of that, it perhaps appears to have been given other expressions for the sake of determining what the test is - - -

GUMMOW J: Glosses can be misleading. Do you say this is unreasonable?

MR KENT: Yes.

GUMMOW J: You do not say it cannot be supported having regard to the evidence, do you?

MR KENT: Yes, we do.

GUMMOW J: You say both?

MR KENT: Yes. It cannot be supported having regard to the evidence because - - -

GUMMOW J: The reason why I refer to that is you refer to Whitehorn at page 689 where the phrase used is:

unreasonable or is not supported by the evidence -

Rather different.

MR KENT: Yes. What I would submit here is, that it is not supported by the evidence because the evidence does not allow the exclusion of the hypothesis that the intention at the moment of the infliction of the fatal injury was other than an intention to cause really serious injury. So it really fits under all of those sort of heads, your Honour.

GUMMOW J: Those two heads.

MR KENT: Those two, in that situation, and then the more broader expressions about unsafe and unsatisfactory verdicts and so forth. At the end of the day, the analysis comes down to the same thing, in my submission. I was dealing with the question about the account of the appellant. We do not come here and argue that his account, as given to the police as to the apparent duration, was the fact. It does not necessarily follow that he was telling lies about it. He may have been minimising it or, alternatively, it may be that the situation was such of a highly strung, volatile altercation between the two of them, where he determines he has had enough, he wants to ring the police to get them to come around, as he says he has done before, and that one must bear in mind the fact that he had been drinking since probably about 3 o'clock in the afternoon, and this is after 10.30 at night.

The crime scene examiner, Mr Ashley, who attended on 3 March at 4.33 am, his evidence is at page 166. He does these diagrammatic sketches of the location of various things in the premises, such as the diagram at page 356. Just some other matters: he said the pot plant stand had been disturbed; the top glass part of the hi fi unit had been disturbed; the brass vase had a dent in the base; and there were blood stains on top of the rim of the brass vase, which is seen on top of the hi fi unit.

KIRBY J: Whose blood was that? Was that the - - -

MR KENT: I cannot answer that, your Honour. That was not analysed. If I can move to the evidence of Professor Cordner now, moving on from the point at which there was minimal obvious external injury. Mr Jones, the ambulance officer, says, "No obvious external injuries", page 119. Mr Frith, the police officer, gives no evidence as seeing any, and I think I am right in saying, the only person who gave evidence of any injury was Marlene Meyers, who said she saw a bruise on the calf of the deceased. So that whilst the initial impression is of great violence, the initial view of those who came upon the scene was that there had been a significant disturbance within the house but not necessarily great physical violence.

Now, Professor Cordner's evidence commences at page 126. He conducted his post-mortem examination on 6 March 1992. He was taken through some of the photographs initially, and gave a description of some of the findings in a relatively superficial way. But at page 128 he is asked, at the bottom of 127:

From those photographs, can you identify the areas where hair had been pulled out -

He refers to photograph 38. He said:

perhaps doesn't show the right front region ..... it certainly shows on the right side and back of the head there is missing hair.

Yes?---And on photograph 39, which shows a similar appearance on the left side of her head and photograph 40 shows the appearance of the left back of the head.

He is asked this:

are you able to say how much force is required to pull out strands of hair like that?---Well, estimates of force are - I mean, the language is really very difficult to talk about force - but if you use - I think there are two ways of answering that question: the first is I think it's probably within people's own common sense the amount of force that's required to pull hair out. But if you want a formal answer I would say at least moderate to moderately severe force. That just begs the question completely -

he says. He is asked about whether the hair was bleached, but makes no comment about it other than:

Well, I suppose it's that the bleaching isn't affecting the roots is one thing that strikes me about the bleaching.

But he does not give any medical opinion about the significance or otherwise of it. External injuries:

Yes, there were basically quite a number of bruises present all over the body, and I'm happy to detail them individually if you wish, or deal with them collectively -

He starts with:

the head photograph 37 shows what is commonly termed a "black eye", which is bruising around the eye. The same photograph, 37, and 38, show that there was basically confluent or extensive bruising involving the entire left-hand side of the face -

At page 130:

bruise, an injury an inch in diameter on the left side of the upper chest and at the right margin of the rib cage were two areas of bruising each one centimetre or a little less in than half an inch in diameter.

In relation to the upper arms, photograph 44 shows bruising on the inner aspect and it's in this region here you can see an area of discolouration, blackish purple discolouration which is bruising, and you can also see a bruise on the front of the lower part of the left upper arm. It is important that it is appreciated that this red discolouration at the bottom of the arm is nothing to do with bruising. It is not a bruise. It is simply post mortem staining.

Now, he later on is asked about bruising to the arm and bruising near the wrist, and agrees, at page 138, that the bruising on the forearms is consistent with being held very tightly. So that, at once it can be seen that just because one has an injury, it does not follow that it was inflicted with an intention to cause really serious injury and, if somebody is holding somebody, it is consistent with restraining them in the sort of activity that the appellant says the deceased was engaging in with respect of him; on his back, jumping on him, trying to punch him, hitting him on the head and so forth.

Over the left elbow there were three abrasions which are scrapes of the skin ranging from about a third of an inch to an inch by half an inch. There was a bruise on the outer aspect or the outside part of the left wrist measuring about a third by a fifth of an inch. And there was also a couple of bruises in association with hospital treatment.

Did you examine the right arm?---Yes. Photograph 45 shows some of these injuries on the right arm.....a bruise about two thirds of an inch in diameter. It also doesn't show three bruises on the front of the lower aspect of the right upper arm ranging from a fifth to half an inch in diameter.

Relatively small spot-type bruises it is submitted. The photographs, he says, does not show necessarily what is on that arm.

TOOHEY J: Where are we?

MR KENT: Page 131, your Honour.

TOOHEY J: Thank you.

MR KENT: Again, looking at the photographs, he says:

This photo doesn't show that on the back of the right upper arm in this region near the armpit a bruise an inch by half an inch. Then around the elbow region three abrasions.....from about half an inch in diameter to about a fifth of an inch, quarter of an inch.....the right forearm there were three bruises in this region here ranging from half by a quarter of an inch to half an inch in diameter. So three bruises here. On the front of the right wrist a bruise two centimetres, sorry, two inches in diameter.....the forearm two areas of bruising.....there were a total of six healing abrasions which are scrapes.

He does go on later on and says that with respect to the aging of bruises that he as an expert says it is very difficult to do that and that he is not necessarily saying that all the findings meant that the bruising was caused shortly prior to the incident which resulted in her receiving fatal injury. He does say in re-examination with respect to the scenario being presented, "Well, if there was not anything there before that, does it follow that it most likely occurred in the incident?" as being describing it as the night follows day he agrees with that, but the evidence that says that she did not appear to have had any other bruising prior to this is not evidence of anybody seeing her uncovered arms, torso or whatever. It is evidence of somebody seeing her in a clothed condition and so that there is some room for some of these injuries not having been caused in the course of this event and that the evidence of Professor Cordner is not saying that they all were and I think he mentioned some specific matters, but he sees "healing abrasions which are scrapes" and he refers to the photographs with respect to those. He says:

you may just be able to convince yourself that over the middle of the back of the hand up from the little finger, you can see a reddish purple area which is also an area of bruising.....the legs and back, over the right side of the upper buttock, there was a bruise about an inch in diameter.

And subsequently that is a bruise that is consistent with a backwards fall.

BRENNAN CJ: We can read this for ourselves.

MR KENT: Yes, I am merely endeavouring to fairly deal with these questions, your Honour, but Professor Cordner's evidence detailing those injuries goes on until he gets to page 135:

this woman survived a short period after the head injury and therefore became increasingly difficult for me to say that those bruises were necessarily the result of an assault that took place very shortly before she was admitted to hospital with a head injury.

BRENNAN CJ: Well, perhaps 133 and 134 have got some interesting parts in it, have they not?

MR KENT: I am sorry, your Honour.

BRENNAN CJ: Page 133 at the middle of the page he is speaking about the question of the skull being intact and the bruising to the scalp.

MR KENT: Yes.

BRENNAN CJ: And 134 he was speaking about the assault occurring over a considerable time and then he gives the actual cause of death at 134 and that is the starting point, is it not, for your argument?

MR KENT: Yes, your Honour:

the injuries to the head are indicative of repeated blunt impacts to the head involving virtually every aspect of the head.

Well, with respect to the bruising to the scalp - I should deal with this first I think, your Honour, page 136:

All I can say that there were a number of injuries that were not observed when she was admitted to hospital.....two interpretations of that. One is that the injuries were missed when she came into hospital. The second interpretation is that they weren't there and had developed subsequently, in which case they are clearly recent injuries.

He is asked a hypothetical at the middle of page 136:

suppose the jury were to find that Miss McNamara during the course of arguing struck Mr Meyers with a ceramic vase - is that of significance in determining whether she was injured at that time or not, the head injury? Activity like a bang?---Obviously the more activity displayed by the deceased, the less likely that at that time she is suffering from any significant head injury.

Likewise, running shouting, things of that nature?---Yes. I mean, all of those are indications of someone who is physically well.

Now, he deals with that again in cross-examination, but it is fair to point that out, that was his evidence then. He is asked how many blows, 136:

I think the estimate of a number of blows is complicated by the fact, if it is right, that the hair has been pulled out. That itself could cause some of the bruising seen to the scalp but, very materially, every aspect of her head is bruised and I felt it was reasonable to say that there had been a number of impacts to the head but whether it is two or three or something more, I can't say.

137, "what degree of force":

Subject to what I said before, I think at least moderate force.

And in terms of blunt impacts, would the surface of a floor be consistent with the injuries.....Yes, but I can't differentiate between the head coming into contact with the floor or wall or a board being brought into contact with the head. I mean, they would all result in the same injury, from my point of view.

I appreciate that. I was just asking you whether it would be consistent with the floor?---Yes.

Would it be consistent also with a table?---Yes.

A large surfaced table?---The surface of the table, not the corner of the table, because one of the things was that there were no lacerations or cuts to the scalp and if the head had been in contact with the corner of the table with any force, one would have expected to see an abrasion or laceration associated with that.

Would it be consistent with impact with a flat surface such as a wall, for example?---Yes.

TOOHEY J: Mr Kent, that reference at the foot of page 136 to cross-examination is an error, is it?

MR KENT: It is examination-in-chief, your Honour.

TOOHEY J: It is the conclusion of examination-in-chief?

MR KENT: Yes, cross-examination had not commenced at that stage, your Honour, that is so. It commences towards the bottom of 137 the cross-examination. He confirms it is clear there were no fractures and he is asked this:

If there had been fractures to the skull, you might have modified your estimate of at least moderate to severe?---Yes.

And without dwelling on that point, it is that lack of fractures that causes you to be cautious about the degree of force that was used?--- Yes.

No fractures anywhere. Well, that is apparent from all the findings. No incised wounds, no jagged tears. He says:

I couldn't exclude the possibility of bleeding from the nose, and bleeding from the mouth, from the injuries inside the mouth, but it wouldn't have been excessive.

He was asked:

there do not appear to be any cuts that would have led to any great degree of bleeding.....

The back, the legs and the arms had quite significant bruising?--- Yes.

If we can deal with the arms first.....consistent with the deceased being held very, very tightly?---Yes.

.....that is probably more likely than anything else?---Yes.

Similarly, the bruise in here, in the wrist, might be of the same sort of character?---Could be, yes.

The bruises to the back, the legs, and the buttocks are consistent with a fall perhaps after being forcibly pushed, perhaps more than one fall?---Yes. I think I take issue with just one fall causing all of those bruises but subject to that.

Perhaps an awkward fall where the deceased fell over some kind of object like a stereo unit, a chair, something like that?---Yes.

He is cross-examined about the hair:

hair pulling doesn't lead to death. Your job is post-mortem, after death?---Yes.

At the bottom of 139:

is it fair to say that at least some of the bruising on the scalp can be attributed to the hair pulling itself?---Yes.

Some of the swelling, some of the bogginess?---Some of the swelling and bruising to the scalp, yes.

.....the balance of the swelling to the cranium must be attributed to contact with blunt objects?---Yes.

.....you are not able to say how many contacts but it must have been more than one?---Yes. I should say in my opinion it is more than one.

.....must have been more than one?---Yes.

It may have been two or three or more than that?---Yes.

He is then cross-examined about the intracranial injuries to the brain, there being no fractures. He describes the mechanics of brain injury and what happens and then at page 142:

What I want to put to you, Professor, is that that brain damage which no doubt led to death?---Yes.

That brain damage could have been done - and I am talking about the brain damage at the moment - could have been done by one decent blow?- --Yes.

One would imagine that externally one blow of that proportion would cause really significant bruising and swelling?---In the skull, if that's what you mean.

Yes?---Yes.

And if that blow were occasioned against a wide flat surface, the bruising could well be widespread?

.....No, no, but I think when you have got a relatively circular object which the head is, even if it comes into contact with a very wide flat surface, a relatively small amount of it is actually damaged.

I understand that but bruises don't just remain, the swelling spreads the harder the trauma. Leaving aside the fracture, the more likely it is the swelling will spread?---I suppose that is fair enough, yes.

And will spread to a part which perhaps has not had trauma occasioned directly?---Yes.

.....at least some of the swelling.....can be explained by the hair pulling?---Yes.

The balance must be explained by trauma to a blunt surface?

.....two or three occasions?---Yes, that is simply my estimate based on - you know, it can't be based on fact, it is simply based on the amount of bruising there is.

.....The injury to the brain could have been occasioned by one substantial trauma to the head or by more?---Yes, that is, you are distinguishing between the injury to the brain and the injuries or the extent of the bruising to the scalp and face, yes.

He is asked about hypotheticals. Mr Gyorrfy's evidence in-chief is referred to:

If there had been one or perhaps two impacts with a blunt surface, a wall, an arch, something like that, together with the hair pulling and together with pushing, substantial pushing and the deceased falling over and getting up. It is at least a reasonable hypothesis, I suggest, that during a struggle of perhaps ten or fifteen minutes the deceased could have occasioned some of the injuries to the cranium that led to the bogginess, the hair pulling which led to some bogginess?---M'mm.

But have retained full consciousness at that stage and her capacity to react according to the situation?---Yes.

If she retained that consciousness at that stage and her capacity to react according to the situation?

.....she of course would be quite capable at that stage of either throwing or striking someone with a potplant? It follows?---Yes.

If at that stage she is then pushed forcibly away from the person she has struck, she takes steps backwards, falls to the ground and strikes her head on, for instance, the side of a coffee table - sorry - the flat surface of the coffee table, forcibly, that would explain the injuries to the brain that have led to her death?---It could.

Yes, of course, she may have injured her brain to some degree?---Yes.

In one of the earlier bangs on the wall. That mightn't lead to unconsciousness, it may not even give her a headache, but it would become manifest at a later stage, wouldn't it?---Yes.

.....it is quite reasonable to suggest that the deceased was quite capable of dealing with herself physically up until very shortly before she lapsed into unconsciousness; is that correct?---I don't know about up until very shortly before she lapsed into unconsciousness - up until very shortly before she sustained the significant part of her brain damage.

Unconsciousness may follow instantaneously.....(Witness nods.)

And it may take minutes or perhaps even longer?---Yes.

This is page 145.

There may be a gradual loss of consciousness.....a degradation from full consciousness to no consciousness and the rate and type of progression that follows can be variable.

Certainly on the injuries that you observed you would not be able to say that unconsciousness followed instantaneously?---That's correct.

And it is fair to say that it may have taken some little time....?--- That's possible.

.....two or three minutes, it might be five or ten minutes?---That's possible.

It might have been longer?---Well, anything's possible. Obviously, you know, as time passes, the probability diminishes.

It is not unreasonable that she took some time to lose consciousness.

That evidence, it is my submission, is of absolute significance in this case; that at what time did she suffer the injury. There is no basis for the jury determining what blow - at what point of the altercation the fatal injury was received. It remains open that he did not necessarily at all times have - remains reasonably open; that he may not necessarily have had at all times an intention to cause serious injury the verdict cannot be supported.

He is asked further about bruising - I had referred to this earlier, photograph 38 - about the trauma being higher than the point of the apparent bruising. So that just looking at the injuries that we can see do not necessarily account for additional blows:

In other words, what you are saying is that two or three blows of moderate force to the skull area could result - could result -in what we see in photograph 38?---Of at least moderate force, yes.

Mr Forrest referred to the fact that in the life-support situation the body would have been elevated and you get movement as a consequence of gravitation of the bruising and swelling and so forth. He is re-examined about trauma as against flat surfaces. The scenario of her head being repeatedly banged against an object I do not think is put to Professor Cordner by anybody, I think I am right in saying that. So that is the evidence of Professor Cordner.

If I could just briefly and in conclusion go to the final portion of the judgment of the Court of Appeal to demonstrate how it was that they dealt with this matter. It was the passage that was referred to earlier in argument, at page 535, where the question was stated by the court. They went on to say:

It was open to the jury to take the view that the version of events given by the applicant at the scene on the night of the incident failed altogether to account for the woman's injuries and did not square with the evidence of what had been heard by those in the vicinity.

For reasons that I have advanced earlier in argument, that fact is not something that assists the Crown in excluding the hypothesis consistent with innocence in this case, and it may be that the approach by the Court of Appeal in referring to that has assisted in leading it into error. It is an error to say that one can derive comfort from that fact in the circumstances of this case. He said:

The same may be said in my view of the unsworn evidence given by the applicant at his trial. In particular, it was open to the jury to take the view that the account given by the applicant at the scene shortly after the altercation and even the account by him in this trial could not be squared with the evidence of Cronin, which it was open to them to accept as reliable evidence.

That, as a bald statement, is correct. Assuming that the jury did, once again for reasons already advanced, one could not conclude reasonably that what Cronin heard coincided with the fatal injury; that it in fact had anything to do with the actual striking of any portion of the anatomy of the deceased. It is speculative to say that it could be used in that way:

Moreover, having regard to the earlier statements made by the applicant, it was open to the jury to have considerable reservations about the account given by the applicant in his unsworn evidence. It was open to the jury to take the view that even the account given by the applicant in his evidence could not be squared with the injuries sustained by the deceased woman.

That is correct; but the court does not endeavour to say how logically that finding could go to rebut the hypothesis consistent with innocence. Then leaping straight from there, the majority judgment says:

In my opinion it was open to the jury to be satisfied beyond reasonable doubt that, as the Crown alleged, the deceased had died as a result of a severe beating given to her by the applicant and to be satisfied beyond reasonable doubt that, at all events by the time of the acts causing death, if not indeed also at an earlier point of time, the applicant intended to inflict really serous injury. In my opinion the verdict of the jury has not been shown to be unsafe or unsatisfactory, and I would dismiss the application.

It is a quantum leap that is taken without answering - - -

GUMMOW J: What does this phrase "really serious personal injury" mean?

MR KENT: It is what we use for grievous bodily harm, because we are not allowed to use "grievous bodily harm" in Victoria any more, your Honour.

GUMMOW J: Yes, that is what I thought.

MR KENT: It equates to the same thing, it is said; but it is seldom, if ever, defined. There is a little confusion about it, because we now have offences of causing serious injury. But it is generally the view that the Crimes Act provisions relating to serious injury - the meaning of "serious injury" in the Crimes Act is different from the formulation of the injury intended to constitute a sufficient intent for murder. At one stage, the "really" expression was dropped off from "serious" as adding nothing to "serious", but since the Crimes Act provisions about "serious injury" have come in, "really" has found its way back into the definition with respect to murder.

KIRBY J: Is this course of jurisprudence explained in some decision of the Court of Appeal of Victoria?

MR KENT: It just sort of seemed to sneak back in, your Honour. I do not think that it is specifically explained, and there is sort of an assumption that the legislature did not intend, by definition, "serious" meaning the same thing as "serious" with respect to the offence of murder.

KIRBY J: But is there some decision that describes how all this happened in Victoria, or not?

MR KENT: No, there is not, your Honour, no.

KIRBY J: You are just reaching into the depths of your own experience.

MR KENT: It is just part of the culture, with respect, your Honour. It has not ever really been determined. Everybody is a bit nervous about it, I think, your Honour, because it is very difficult to argue from a strictly legal point view that when the legislature used the term "serious" it did not mean what the law had already known "serious" to mean.

KIRBY J: When do you say the prohibition on "grievous bodily harm" came in? Was that by statute, or was that a court decision?

MR KENT: No, it was not. I cannot give you cases off the top of my head, but it was all to do with using modern language, and it has been held by the Court of Appeal that "really serious injury" or "serious injury" meant exactly the same as "grievous bodily harm".

KIRBY J: There were some English cases, were there not, that talked of "really serious injury"?

MR KENT: Yes, there were. And then we went through the stage of determining that "really" did not add anything. The English cases were dealing with it in terms of using the expression "grievous bodily harm", and explaining "grievous bodily harm" as meaning really serious injury. It has been said now we should not use the term "grievous", because people do not use the term "grievous" in the community and will not understand what it is. I have some difficulty with that, but that is my personal view. I think they do understand it, and probably understand it better than we talk about "really serious". But there was actually discussion in this case about what the learned trial judge should say to the jury about what "really serious injury" was, and it really - there was some reference to English authority. It does not bear on this appeal.

BRENNAN CJ: I understand counsel like the word "really" because it helps a bit. But can you tell what is the section which defines the crime of murder?

MR KENT: It is not under the Act; it is the common law definition.

BRENNAN CJ: Not under the Act?

MR KENT: No.

BRENNAN CJ: Then what is it that changes the common law?

MR KENT: What changes the common law is common usage. Instead of using the expression "grievous bodily harm", it having been described in English authority as meaning the same as serious bodily injury, it simply became the practice in Victoria to do away with the old-fashioned expression "grievous bodily harm". Nobody is suggesting that it would be incorrect in law to use the term "grievous bodily harm" as sufficient intent.

TOOHEY J: Is the term "grievous" retained in the legislation in respect of any other offence?

MR KENT: No, it is not, your Honour.

TOOHEY J: Was it eliminated by amendment?

MR KENT: It was eliminated by amendment at round about section 19 and thereabouts of the Crimes Act which removed the old "unlawful wounding" and "wounding with intent to - - -

TOOHEY J: It had nothing to do with the crime of murder which remained at common law?

MR KENT: Yes, but used the expression "serious injury" in place of "grievous bodily injury" that had previously been in the Crimes Act. It does cause a little bit of anxiety because the scheme of offences referring to serious injury by definition of - there is a definition of "serious injury" in the Act which talks about it being an accumulation of - - -

GUMMOW J: A combination of injuries, section 15.

MR KENT: A combination of injuries and anxiety and apprehension and all sorts of things come into it as a combination. There is some apprehension that it might be a proper matter of interpretation to say that the Crimes Act definition is the proper test for the intention for murder.

TOOHEY J: Except that it is a definition for the purposes of the Act.

MR KENT: It is, and thus far nobody has suggested that they do mean the same thing.

KIRBY J: There must be some description in some case of the old Court of Criminal Appeal or the Court of Appeal.

MR KENT: Yes, your Honour, there are.

KIRBY J: Anyway, if you find it, it would be helpful to have reference to it.

MR KENT: I am sorry, your Honour, but I think I am right in saying it is not that there is any single decision that says the crime of murder in Victoria now encompasses the concept of an intention to cause serious injury as opposed to grievous bodily harm, but there have been comments in dicta of the courts that perhaps it is better to use more modern language. It is really only for that purpose that we have moved from "grievous bodily harm" to "serious injury" whereas in other places in the Code States, for example, the expression "grievous" is retained, and so we seem to have gone away from that to this "serious" aspect.

BRENNAN CJ: That is really serious injury?

MR KENT: Really serious injury, yes.

TOOHEY J: But I took you to be saying that "really" has a bit of a question mark over it.

MR KENT: Again, there are comments in the dicta that say you do not need to add "really", and "really" actually disappeared out of use for a period of time. But since these legislative amendments about the other forms of serious injury being caused, the word "really" seems to have come back into usage without any decision of the Court of Appeal saying, "We should add the word `really' back in". The Court of Appeal, I would suspect, if somebody complained that "really" had not been used, would say, "Well, that's not a defect. The word `really' does not need to be used". But it is just out of an apprehension that we have shifted in the culture and understanding of people to serious injury being perhaps something in the understanding of ordinary people as being less than grievous bodily harm, although by legal definition they are said to be the same thing. But it is just a matter of the apprehension that we have lowered the tariff a bit with respect to what is the requisite intent when the intent is not to kill?

It is my submission that effectively the last two paragraphs of the judgment of the Court of Appeal show a very quick progression from a proper statement of the question to be asked to a conclusion it was open to the jury to convict, and no effort is made to actually answer the question that is posed. That is because, in my submission, it cannot be answered. The evidence does not allow the exclusion of the hypothesis that the intention at the time the fatal act occurred was something other than an intention to cause really serious injury.

GAUDRON J: It may be that it does not, but the question is still: is that a reasonable hypothesis?

MR KENT: Yes, that is so, your Honour, because, if it is unreasonable, then it is excluded because the other evidence shows it to be unreasonable. But there has to be a logical process based upon the evidence.

GAUDRON J: I do not understand your argument to have been directed to making good the proposition that it is a reasonable proposition. Rather, I understand your argument to have been directed to saying that the evidence does not exclude it.

MR KENT: I have been very clumsy, your Honour, but the situation is this, that because we have here a prolonged event, there is no evidence from which one can say at what point in that event the fatal injury was received. There is no evidence that says in what manner the trauma was inflicted that resulted in that fatal injury. Therefore, it is open on the evidence - and with respect to the medical evidence as to how an injury of this kind can occur, bearing in mind the fact that it can be the result of one single blow, that it is open and remains open that a single blow be it, or a single trauma, was not the result of an act of the accused which was done with the intention to cause grievous bodily harm or really serious injury.

GAUDRON J: Whereas others were?

MR KENT: They may have so found.

GAUDRON J: Let it be assumed - because I think one has to make that assumption - that the jury found that at some point at least there was the requisite intent and that that is a finding that was open. We have to assume that it is reasonable in that context to have the intention at one point but not to have that intention at another.

MR KENT: Yes.

GAUDRON J: I want to know why that is reasonable.

MR KENT: Because it is reasonable to say that people's intention can vary from one moment to another. It is reasonable in the circumstances - - -

GAUDRON J: I think the truth of the matter is that in events like this there is not a conscious deliberate forming of intent. The intent is to be deduced from the overall events.

MR KENT: Yes, your Honour, you cannot just guess at it.

GAUDRON J: I would have thought it was well open to a jury to conclude that the intent did not at any stage change. Once it is established that - - -

MR KENT: Your Honour, the problem is about changing, once it is established you cannot say that it existed from the moment of one - - -

GAUDRON J: I am not too sure that you - the trouble is you are inviting speculation. It is your argument that invites speculation at every point. We know there was a vicious assault. We start from the proposition that it was open to the jury to find that elements of that assault were accompanied by an intention to do serious bodily harm. So then we have got to say - and, indeed, a number of the injuries themselves would provide evidence of that intent.

MR KENT: Other than the pulling of the hair - - -

GAUDRON J: That would.

MR KENT: - - - it is very difficult to say that there are any that would alone, your Honour.

GAUDRON J: Yes, the pulling of the hair. Why do we say that in this melee it is possible that he changed his mind? That he did not want to do her a serious harm, he just wanted to do unserious harm.

MR KENT: Your Honour, if somebody is hit over the head with a flower pot as they are about to make a telephone call and they instantaneously turn around and push a person and they fall over, it could not be said that it was reasonably open that that act was - - -

GAUDRON J: All right. But then you would have to assume, would you not, on that version, that that occurred at the end of events.

MR KENT: Or within 10 minutes of it, your Honour, on the evidence of Professor Cordner. That evidence cannot be ignored, it must be looked at. That it is plain that even an injury as serious as he found, he is - - -

GAUDRON J: There was nothing in your client's statement to support a view that there had been an argument which, so far as he was concerned, had resolved itself, and 10 minutes later he was hit over the head and he had no intention of doing anything then other than pushing her aside. There is nothing to support that.

MR KENT: With respect, your Honour, there is. There is. He talks about how when he first came home there was an argument.

GAUDRON J: He does not give any evidence of an - he says there was an argument, yes, but not of any involving physical violence.

MR KENT: Yes, he does, your Honour. He talks about her jumping on him and pushing her away, about the bumping into the wall - - -

GAUDRON J: Excuse me. He is alive.

MR KENT: Yes, your Honour.

GAUDRON J: Let us not worry about the violence to him, let us worry about the violence that led to the death, whether it was accompanied at a particular time or not by the requisite intention, it is that violence that we are looking at. He gives no account of violence on his part towards the deceased.

MR KENT: That is, with respect, not correct, your Honour, and I will now take the Court to it.

GAUDRON J: His statement to the police does not allow for it.

MR KENT: I am referring to page 259 and it is the transcript of his interview with the police where he is asked some questions by Senior Constable Rudkins commencing at question 476 and he asked him about what time he arrived home. He says "just after elevenish". He is on all the other evidence clearly wrong about that time and there seems to be no significant reason why he would have that time out of kilter, "possibly 10.00 you went in there?" 260:

the police arrived at your premises at 25 past 11.00.

Yeah, well I said I got home at elevenish.....

Witnesses have described the arguing and commotion, if I can use that word - .... ......

At your unit as occurring between 9.30 and 11 o'clock. Would you like to make any comment on -

No.

That appears to be a very large period of time, doesn't it?

Yes, it does -

Could that have been the situation, the arguing and fighting for an hour and a half?

No, I wouldn't say I got home that early, no.

And is -

I know we were arguing when I got home, I'm not denying any of that.

Mr Rudkins has indicated, you know, people have indicated they heard thumping type noises and bearing in mind the fact that Tracy has sustained serious head injuries to the back of her head.

Mm.

Can you make any comment about that?

No. Well, like I said it's probably coming up the hallway when we're fighting and the pot plants have come over and throwing that pot at me and me trying to ring up and yelling at each other, banging into walls along the way.

Is it possible that you at any - at any stage, have grabbed her severely by the head and banger her head into either the wall or floor -

No.

So that he does give evidence of physical fighting, banging into walls, pots being knocked over and things being thrown. It goes on - - -

GAUDRON J: It does not give any account really of the hair being pulled, does it?

MR KENT: No, it does not, your Honour.

GAUDRON J: And it does not give an account of an interruption after those events, after - - -

MR KENT: Your Honour, he goes on at page 263 - question 499:

The question I was about to ask, during the argument and scuffle, if we might call it that, was there any screaming or yelling?

We was yelling at each other.

Right. Yelling what - words or -

Like - yeah, words, like I'd probably be yelling - I don't know the exact words - "Get off me just leave me alone", and Tracy would be screaming probably back to me - ...... `Bastard' or `Arsehole', or something like that, I don't know the exact words, but there was screaming and yelling, yes.

.....

We have information from people in the area that there was banging and loud yelling going on for, you know, between 9.30 and 11 o'clock, and we've also been told that there was a lot of screaming coming from a female in the house. Do you have anything to say about that?

Well, Tracy probably was screaming and I'm probably the one yelling and she was screaming at me.

Yes, well, I mean not words screaming, but squealing type screaming.

Well, I can't say yes or no to that.

.....

You mentioned before Noel, you made a comment about the fact that when you were having the argument or whatever you'd like to describe it, with Tracy, you made a comment that you couldn't hack it any more.

Yeah.

Or words similar. What did you actually mean by that?

`Cause a lot of times I come home and there's always abuse at me, you know, a lot of things that people don't know and I'd just had enough, it's just built up where I've got to let it out and let everyone know, I'm not ashamed anymore to tell people that we do argue and we're not getting along very well at all.....can't hack it no more.

And so on and he spoke about how:

if I can get in me car, I go - because I was drinking I didn't want to last night get picked up, or I stay at work sometimes, sleep at work. I just go to bed, if I can get to bed, and just go away or even take the dog for a walk - - -

GAUDRON J: Well, there is nothing there that leads me to find a factual basis for a termination of a struggle - a violent altercation and then later some other event in which there is an event unaccompanied by - accompanied by a different intent.

MR KENT: If your Honour will pardon me then I will go back further.

GUMMOW J: The last sentence of the answer to question 511 is rather interesting, is it not? This is at a stage of the deceased in the hospital, I suppose.

MR KENT: Sorry, your Honour.

GUMMOW J: Question 511 on page 265:

has she said I've done it?

MR KENT: I do not know -

where she got these head injuries, have I got marks on me hands to say I've bopped her or I have done anything to say - has she said I've done it?

Well, it's not a situation that she -

I know I -

She hasn't said anything.

I know . . . . .

.....serious condition -

I'm the one who rung the police. I wanted people to be there to help me.

It's possible she may die.

and then he makes no audible reply to a series of questions.

GUMMOW J: But the video reenactment also which I am just really going through very quickly does not suggest an acknowledgment by him that he afflicted any injuries on her.

MR KENT: No, it does not.

GUMMOW J: There is some reference to pulling the hair at page 281 but it would hardly explain the amount of hair that was pulled out and the quantity and the number of occasions on which it seems to have been pulled out.

MR KENT: That is so, your Honour, and I am not quarrelling with that at all but at page 272 he is asked questions about having come in -

Normally just put my clothes at the end of the bed there on that side.

Where was she then at that stage?

Going mad at me about where you are.

Right. So you're here, she's arguing with you and being aggressive.

Just arguing back, yeah.

What happened after that, then after you got here in the hallway and you were having an argument.

Well, I . . . . . get going to try and get to the phone and get out.

Saying, "All right, then - right, I'm going to ring up your mum." `Cause hopefully - sometimes that will work, sometimes it doesn't work.

I thought I'd say that to her. So we were comin' out here and we're still wrestling and grabbing and all that, and must've obviously banged into the pot plant somewhere along walking out here.

- been overturned in the struggle?

Yeah, the struggle, right, I'd say. More arguing, more arguing, carrying on and yelling and it's got to here somewhere, I can remember bumping into . . . . . and it's got, "Right, I'm gunna ring up, I will" and -

Where's Tracy at this stage?

Still grabbing me and I'm fending her off and we're both arguing -

How are you doing that?

Pushing her off like, like leave me alone.

You were pushing her off.

And then as I'm going back like this, this is when she's on the back of me, grabbing me from behind and all that and pulling me hair and all that.

Whether I'm shrugging her off, grabbing her hair, whatever - however I don't really recall, but I'm shrugging her off like this to get to it, I get to about here, you know, and we're still arguing, carrying on, and I've stormed out to get a drink. And Tracy doesn't come in here.

Tracy's just stayed there, I've gone to get a drink,

and he speaks about going to the refrigerator.

- how long would you have spent in here then?

Probably a minute maybe -

So that there is evidence about there being physical exchanges between them but are broken off at that point -

hopefully try to walk back then to get changed, have me shower after comin' home from work, and I come out here and it's on again, she's grabbed me and I push her away, that's it, right, I'm gunna ring up and I get to ring, the phone desk is in the corner here, I go to ring up and that's when I'm boshed on the head.

Just in relation to that desk, where is that normally situated?

It's in the corner, but I've been clocked on the head and we're still kind of wrestling.

And the phone's are here.

.....table's normally in the corner?

Just in the corner like that.

And is there a phone on the table?

and he speaks about that -

I'd be going for the phone, whether I actually got to a phone, I don't know, but I was going to get the phone, whether I had the phone at the time, I don't know that I was clocked, and then right, it's on over here a little bit and then I've just shrugged her over there.

Where was she then?

I've been clocked because Tracy's realised that I'm bleeding and then it's on again and, "No, I don't want nothing to do with it, I've had it", I'm going on like this.

Well, where are you when you actually get clocked? I'd be probably coming out here to get the phone like that.

Right. And where did you see her standing?

She's seen that I'm bleeding I presume, yes.

So, we do have a situation where there has been altercation; gone from the bed - near the bedroom, along the hallway, into the lounge room. He has gone into the kitchen and he has come back into the lounge room and it is on again.

Then she's going a bit mad again -

"Nah, I've had enough" and I'm going like this, right, and then I rang up.

Then she's going a bit mad again.

"Nah, I've had enough", and I'm going like this -

to ring up.

She's going a bit mad again.....I've grabbed her.....I shook her, and pushed her down there.....Shake and off me down here and that's where she lied.

Right. In relation to this area here -

The way the lounge room's arranged at the moment.....the coffee table's a bit up -

talk about movement of the coffee table:

coffee table's usually in line with it all like that.

It is significant that the coffee table has probably moved in the course of these events; maybe by hitting her head on it, and son on.

BRENNAN CJ: Is that a convenient time, Mr Kent?

MR KENT: Yes, if the Court pleases.

BRENNAN CJ: Have you almost concluded your argument?

MR KENT: Yes, your Honour.

BRENNAN CJ: The Court will adjourn until 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN CJ: Yes, Mr Kent.

MR KENT: Thank you, your Honour. May it please the Court, in concluding I just want to direct the Court's attention to the formal interview with the appellant. The part I wish to refer to commences at page 210 of the appeal book. It goes on for some considerable pages where the appellant is asked a series of questions about what happened after he got home. I will just summarise it, but he begins by saying that he was meant to be home for a barbecue but he was not. He went to his room to get changed. The argument started. It was about him not being home to cook the meat for the barbecue. That begins at question 76. He says at question 83 he was affected by alcohol. Question 84:

Would you - would you say you were drunk?

No, I wouldn't say I was drunk.

Can you remember clearly the incident?

Not when the argument started happening, no.

Right. Well, can you remember driving home from the hotel?

Yeah.

And arriving home?

Yeah.

And then you can't remember when the argument started?

I know where the argument started, in the hallway, but I can't remember clearly, how do I say - like I say remember clearly, exactly what went on in the argument about what was going on except that I wasn't home to cook the barbecue.

Right. Why do you think it is that you can't remember clearly?

`Cause I'm sick to death of it all the time happening and that's why I went to get to the phone.

So that he explains about how this is not the first time they have had difficulty. Then throughout this he talks about how on a number of occasions he has called the police and so on. Question 91:

I went to the bedroom. I wanted to get out of my work clothes, have a shower -

He does not ultimately get out of his work clothes because that process is interrupted:

the argument started happening and then Tracy started going on and, you know, pullin' and shovin' me and all that in the hallway.

TOOHEY J: I can understand the jury taking a pretty dim view of this account, because nowhere in this or in the video re-enactment does he seem to accept that he might have struck her or done anything to bring about the injuries that ultimately caused her death. I mean, it is all what she was doing to him by way of pushing and shoving.

MR KENT: Yes, that is so. But it must also be remembered that at this stage, where he is being interviewed - this is at 10.45 on the Tuesday, and it is not until much later on that he is in fact appraised of the significance of the injuries.

TOOHEY J: He would have known that she was in hospital and he may have known that she was on a life-support system at that stage.

MR KENT: It is not clear that he does know that, your Honour, but the situation is this. If one really looks at the injuries as a general proposition, the majority of the bruising would not be regarded as serious injury. He, in the course of the explanation that he is giving about it, talks about in fact a prolonged incident but holds back from saying about what precisely he did, other than he says things such as, "I grabbed her by the shoulders and pushed her away. I might have struck her with my elbow." And he talks about his elbow being sore and explaining that he may have struck her with that.

If you combine that with this evidence, that there might have been no more than two significant blows to the head, two separate acts of trauma to the head, which might be the situation, then with respect to the bruising, some of it is explained by being consistent with grabbing hold of rather than striking. So there are not necessarily a large number of occasions of actual striking. Then you have got the pulling of the hair, and he does say, not directly that I deliberately grabbed hold of her hair and pulled large - - -

TOOHEY J: Pulling of the hair is something of an understatement, is it not? There were seven clumps of hair pulled out and lying around the apartment.

MR KENT: Yes.

TOOHEY J: That is the sort of thing that the jury might well have thought called for some explanation.

MR KENT: Yes, it no doubt does. You have got the fact that he is under the influence of liquor to some degree, that he is in a situation where he does not know the full extent of the injury and somebody perhaps playing down their situation there without the benefit of the hindsight that comes with the knowledge of what injuries she is actually suffering is not to be regarded in the same way as a person who actually is completely aware of the extent of the injury, your Honour, and, therefore, it is easier to understand that a person in that situation might play the situation down.

TOOHEY J: I think the significance of it rather lies in the fact, Mr Kent, that the jury might well have simply rejected his account of what happened. Now, that does not prove the Crown's case, but it leaves the Crown's evidence and such inferences as can properly be drawn from it relatively untouched. That seems to me to be the significance of it.

MR KENT: Yes, your Honour, with respect we agree with that and we say that this is not really a situation where there is a great deal of room for argument about the evidence. It is a matter of what can you make from the evidence rather than what it is that has happened. We know that there have been a number of blows struck, but it is not necessarily as many as it might appear to be if one does not closely analyse this evidence and it may be that it is a relatively small number of actual aggressive blows and a lot of pushing, pulling, wrestling and struggling as he goes on to explain and he actually goes through from these questions in the early seventies through to question 274 dealing with all of this where at that stage he says and interestingly:

how long would the argument and the physical exchange have lasted?

I'd say - I would say it went over say 10, 15 minutes maybe.

Now, that is very consistent with the duration of the altercation that Mr Cronin hears. There are other people talking about an hour or longer, so that you have got a span on the evidence of 10 to 15 minutes to an hour. Now, what one makes of that is difficult to say. It would have been open to the jury to find it went on for an hour. It would equally have been open to a jury to find that it went on for 10 to 15 minutes and a great deal of emphasis seems to have been placed on Mr Cronin's evidence, he being a former a police officer.

At first sight when looking at the brief accounts he gives when he is spoken to by the police at the house one can be forgiven for saying that he is not giving any explanation consistent with there being a particularly significant ongoing altercation and yet when one analyses what he says here and goes through that over many, many questions he is, in fact, giving a far fuller account of the physical altercation between them without giving a specific explanation as to him having struck her a blow to the head or how she got her injuries to the head, but it may be that he does not know how she receives the trauma that causes the fatal injury and it is very likely he would not know in these circumstances.

GUMMOW J: What would one make of answer 256?

MR KENT: 256, your Honour?

GUMMOW J: Yes, page 232.

MR KENT:

Right. What was Tracy doing while you were on the phone?

I don't think she believed that I'd ring the police and she was just lying there, then she'd look up and around, and then when she realised I did ring the police, she just lied back down again.

What one can make of that is that it may well be that at that point, when she was in a deteriorating condition, if at that point she has suffered the trauma which results in a fatal injury, that she might in fact have been making some effort to get up but not being able to do so. He would not necessarily be aware that that was the situation. In fact, when you look at the account that is given by the police officers who attended, one who says, "I thought she might have been asleep as a result of intoxication," you could not expect that he would have been able, simply by observation, to have understood that she was suffering this very serious injury. She may well have done something such as raising her head, looking up and around, but not as he interpreted.

GUMMOW J: Yes, but 162, line 6, he said she was faking it.

MR KENT: Yes, that is his belief; it can only be that. He said that on a number of occasions, that that is what he thought was happening, and he says, "She's done it before, and I've called the police before." Based upon that material - I mean, a jury does not have to accept that it has happened before but there is that material - there is obvious material that there has been a long history of argument and altercation that can be heard outside the house, with both of them yelling at one another and whatever else might have been happening there.

One of the neighbours at least says, "This has been going on for two years and I'm sick of it." He says at some stage some of the neighbours called the landlord of the premises to complain about the fact that they had been having this volatile relationship over a long period of time. So it would not be fair to say that when he gives expression to his belief as to her condition or as to whether she is faking it, that that was a deliberate untruth. It could not be concluded as such, in my submission.

He went on to explain about going to the bedroom, trying to change his clothes. He does not get to change his clothes, he is still in his work clothes when he is being interviewed by the police, and they talk about the blood that is on the clothing and so on. He comes out of there. There is the incident along the hallway. The pot plant gets knocked over. He goes to the kitchen, and comes back, and subsequent to that he gets hit. What he is saying is, "There has been significant physical altercation between us," without describing how it is she might have got a bruise on the thigh, she can get abrasions to the elbows, bruises to the buttocks in a fall.

There are many explanations as to how this happens without him being directly responsible by inflicting a significant number of violent blows upon her. It is not open to conclude otherwise, although when one simply lists seriatim a number of bruises the danger is that one will attribute a separate act of trauma effectively to each and every one of them. It must be borne in mind that some of those bruises at least said by Professor Cordner to be consistent with and likely to have been caused by being grabbed hold of very tightly, not struck, but grabbed hold of very tightly, and that the situation about the bruising in the head is complicated by the fact that bruising would probably result from the pulling of the hair.

So that bearing that in mind one is left with there being more than one significant trauma to the head, according to Professor Cordner, but perhaps as few as two. It would not be open on the evidence, in my submission, for the jury to conclude that he struck her deliberate blows to the head more than that. It is possible that he did but they could not conclude that he did.

GAUDRON J: Is that exactly right? Is not Professor Cordner's evidence that there were at least two, perhaps three, blows?

MR KENT: And maybe more.

GAUDRON J: And may be more, so we have more than one?

MR KENT: Yes.

KIRBY J: So that means if you exclude the one when she falls and hits her head, there are still a few more for the jury to choose from?

MR KENT: Well, can they go beyond saying there was one, maybe more, but not being able to conclude that there were in fact more? It is possible that there were more but could they conclude that there were more?

BRENNAN CJ: More fatal ones, you mean?

MR KENT: We are talking about the trauma to the head itself.

BRENNAN CJ: The external to the cranial cavity?

MR KENT: Yes.

BRENNAN CJ: I see.

MR KENT: Yes, external trauma to the head was where Professor Cordner is speaking of - more than one - two, three or more, but he cannot - - -

GAUDRON J: Any one of which could also have been the one causing the cranial damage?

MR KENT: Yes, your Honour, that is so.

KIRBY J: And in respect of which the Crown does not have to prove the intent to kill?

MR KENT: No.

KIRBY J: It is sufficient to prove the intent to cause really serious harm.

MR KENT: Yes.

KIRBY J: That, it seems to me, is a problem here, that the causing of serious - I can imagine if he is hit over the head with a ceramic pot, at least for a period he could have an intent to cause serious harm.

MR KENT: He could have, but the only explanation as to his reaction to that is that he did not have such an intention. Whilst the jury does not have to accept that, is it open to the jury to say whilst he might possibly as a consequence of that have had the requisite intention, that they could be satisfied beyond reasonable doubt that he did. It is my submission they could not in the ongoing scene of this fracas. So that there are reasonable explanations open which cannot be excluded, in my submission. If the Court pleases, I do not think I have anything more unless - - -

BRENNAN CJ: Could I just ask you one further question. Photograph No 18 shows the telephone with what appears to be blood stains on it. Is it known whose blood that was?

MR KENT: I think I am correct in saying that that is the blood of the appellant.

BRENNAN CJ: Thank you.

TOOHEY J: Could I ask you another question. I was just going to ask you, Mr Kent, the notice of appeal seeks a substitution of a verdict of manslaughter for murder. I notice that Justice Coldrey would have ordered a retrial on the question of manslaughter.

MR KENT: Your Honour has the advantage. I thought his Honour said that he thought that it was typically a case of manslaughter and would have substituted a verdict. I am sorry, I was not aware of that.

TOOHEY J: My question was simply going to be: was there any particular reason that you know of why he would have had that in mind?

MR KENT: The only thing I can think of offhand is this, that interestingly the learned trial judge left open the question of self- defence with respect to manslaughter but not with respect to murder. It may be that his Honour thought if that was a properly open defence, if the jury went wrong on the question of murder, that question had not been considered and he was still entitled to an acquittal on that basis.

TOOHEY J: I do not think Justice Coldrey explains why he would have directed that - - -

MR KENT: I must say I had missed that that is what he said, but that would seem to me to be a possible explanation for it. But I am not urging the Court to do other than that which is said.

TOOHEY J: No, it was just by way of really understanding what had gone on below.

MR KENT: That is the only reason that I can think and there would be a logic to that but we are not asking that be done, if the Court pleases.

KIRBY J: Mr Kent, have you done any analysis of the way in which this problem, which is the Knight problem, is dealt with in New Zealand or in Canada or the United States?

MR KENT: No.

KIRBY J: Because once this case is lifted up to this Court, the Court has said many times we are not a super court of criminal appeal, it becomes a question of the general principle and it may be that this case might afford an occasion to see whether anything between could be done than is done in Knight and the other cases, Barca and the other cases that have dealt with this. You have not done that analysis?

MR KENT: I have not done that. I apologise to the Court but I have not done that, no. I simply do not know of this particular question.

KIRBY J: One gets the general impression that the Australian principle is a more - what will I say - stringent principle and indeed in some of the academic literature, there is some discussion in England that the number of miscarriages of justice cases have occurred because the courts of criminal appeal have not applied so stringent a principle. I just say that off the top of my head and that really requires analysis, not simply generalities.

MR KENT: With great respect, your Honour, the matter is a difficult one conceptually as to what is the appellate court role and particularly when it comes to this Court.

BRENNAN CJ: What is the difficulty?

MR KENT: The difficulty is in determining whether or not it should be that there is a point where, when special leave has been granted, that this Court can review the matter factually. It is my submission that it can and has done so but the concept of the court as was mentioned in argument earlier as acting as a court of review of a court of appeal is not one to which the Court subscribes and the special leave situation needs to be satisfied first.

BRENNAN CJ: That is relevant to the question of the grant of special leave.

MR KENT: Yes.

BRENNAN CJ: But once the appeal is submitted to this Court the function of this Court is to do whatever the Court of Criminal Appeal ought to have done.

MR KENT: Yes.

BRENNAN CJ: So that we step into the shoes of the Court of Criminal Appeal, do we not?

MR KENT: Yes, your Honour, yes. If the Court pleases.

BRENNAN CJ: Yes, Mr Flatman?

MR FLATMAN: The contention is that the evidence was such that it gave rise to a reasonable explanation consistent with innocence that could not be excluded by a jury. Can I start by going to a couple of fundamental facts, the first one being the issue of the time that elapsed during which this altercation took place. My learned friend has put to the Court that it was an hour to an hour and a half depending upon some witnesses. In fact the defence position was as set out in the record of interview that was read before at question 274 that the argument lasted ten to fifteen minutes. Indeed, when giving his unsworn evidence, the accused man gave evidence that it was ten to fifteen minutes. Reference was made to a witness at page 324 who had been the barman at the hotel. His evidence is not, in fact, reproduced in the course of the material but at line 30 at page 324:

Mr Brand thought you left the hotel at between 10.30 and a quarter to 11; do you disagree with what he said?---No, that could be about right.

He went on to say that it took him about ten minutes to drive from the hotel to his home. The other evidence was the evidence by the brother, Darren Meyers, that the telephone call came around 11 o'clock. The other clear stable evidence is that D24, the witness Marriner, was notified at 11.21 which would fit in with the time frame of the time it would perhaps take Meyers to drive across to the appellant's house.

Indeed, the cross-examination put to Professor Cordner and in the closing address by counsel for the appellant suggested that the time for the altercation was some 10 to 15 minutes. So that the case was certainly conducted with the jury in the context that that was very much a feasible time span for what occurred and that is relevant because when you look at the chronology of the events given by the appellant and you look at that in the context of the evidence of the witnesses in the neighbouring houses the way in which you use the two lots of evidence together becomes much more cogent.

The Crown position is there is a real danger in looking at any one of these pieces of evidence in isolation and it is submitted that the vice in the argument put by the appellant is that it looks at a possibility conceded by Professor Cordner and seeks to rely on that as a fulcrum for arguing the inapplicability of other surrounding circumstances whereas the procedure ought be to firstly look at the evidence given by the neighbours - and this is not an uncommon situation in cases of this kind. You may not have eyewitnesses but you do have contemporaneous accounts of noise and specific words coming from the area.

You look at that in conjunction with the injuries suffered and the range of possibilities that might go to explain the injuries suffered and then you look at that in conjunction with the explanation given by the appellant firstly to the police in the record of interview and then in the re-enactment and then in his evidence before the court and it is when you put all of those things together that you have the full case and you look at the way in which all of the evidence fits together as a circumstantial case. It is submitted here that the evidence of the neighbours was cogent and it was relevant when looked against the other evidence. In particular, it commences with the evidence of Ashleigh Rawlings.

There appeared to be three men living in a house nearby all builders who worked together and indeed one of them demonstrated by banging on the witness box the kind of noise that he heard and that is one of the examples of the opportunity of the jury to be able to assess the person who heard it, his experience of life and his capacity to communicate that particular experience to a jury. Rawlings at page 62 - - -

TOOHEY J: Before you take us to the detail, Mr Flatman, I rather took you to be going to this sort of evidence to show over what period of time there were noises and cries and so on. Before you take us to the detail, what do you say emerges from the evidence of the Crown witnesses as to the length of time the appellant and the deceased were at least in argument?

MR FLATMAN: They vary significantly, as one would expect. They talk in terms of 10 minutes to half an hour to an hour and indeed there is one piece of evidence - and they differ in the time that it occurred, but they are subject to the same kind of vagaries that eye witnesses have about these sorts of subjective things and as far as time is concerned that is to be looked at in the light overall of the evidence and overall the evidence is quite clear that this man was still at the hotel at 10 o'clock. The bar closed at 10 o'clock. There is the evidence of a Mr Brown. He went on drinking in another part of the hotel which remained open for some later time and there he drank his Pernod and lemonades. He had been drinking beer. So that if you put that together with the evidence of the barman then you had independent stronger evidence in terms of time frames.

TOOHEY J: I am not sure what you mean by that. Are you suggesting that there was not a great deal of time involved on the evidence of the Crown witnesses?

MR FLATMAN: No, the Crown witnesses were talking about yelling and shouting over a long period of time, but in terms of the altercation involving bangs or thuds, they are fairly consistent that it is within a confined area but I do not think it is specifically referred to.

TOOHEY J: What is your point?

MR FLATMAN: I am sorry, I - - -

BRENNAN CJ: What is your point about the time?

MR FLATMAN: My point about the time was that if you accept the other evidence about the time, in reality the jury would have found that it was a period of some 10 to 15 minutes, therefore it is more likely that it was a continuous sustained attack. If you put it in the context of the way in which the appellant gave his version of events, it fits into a much more readily understandable version where he comes home, goes into the bedroom, comes out, goes into the kitchen, comes out again and then goes over to where the phone is, but he talks about a period of time. My learned friend was suggesting it could be an hour to an hour and a half, in which case how do you know what might have happened through that period of time that people might not have heard? It is stronger for the Crown for it to be a lesser period of time.

BRENNAN CJ: I see.

MR FLATMAN: I have taken a long while to make a simple point, I am sorry, but that is the purpose. There is a distinction between the two lengths of time because one is a more contained period of time and these events, in our submission, took place in a fairly contained period of time in circumstances where he came home and there was a dispute and it escalated and it escalated and culminated in an attack. That fits in, we say, then with the evidence of the neighbours. So that my friend asks how do you know you heard some noise and there was silence, that that could not have occurred at any time? The Crown says if you look at it in this contained period of time, clearly it fits in with what the appellant was saying. He said that it finished at this time when the deceased ended up on the floor, but that is consistent with both versions. That puts the final blows or thuds or thumps or whatever you want to call them at the end of the altercation, and after that there is no further noise, which is consistent within the time frame. The evidence given by Ashleigh Rawlings at page 62 is that he heard some banging noises and then at line 15:

Also I think a glass plate or something broke as well.

When, during that night, did you hear the glass plate breaking, that sound?---I can't remember the exact time.

What about the banging noises?---No. All I know is the plate broke before the banging noises.

Did you hear Mr Meyers say anything at all after the banging noises?- --He did say one thing. He said, "Get off the f... floor, you weak bitch", and I didn't hear a reply.

Did you hear anything further after that?---No.

How soon before you heard that were the banging noises?---That was after the banging noises.

A long time or a short time?---A short time.

Rawlings' evidence is important because it shows a sequence first of all of a plate breaking, then - - -

BRENNAN CJ: Was there a broken plate?

MR FLATMAN: There was a broken vase that hit the appellant on the back of the head. That fits in with the same time as the culmination of the altercation between the parties and it would have been a fairly strong inference, in my submission, to say that was what he heard followed by banging noises, then:

"Get off the f... floor, you weak bitch", and I didn't hear a reply.

So that we have got the injury to the back of the head, the banging noises, the comment in that context, which would suggest that she was on the floor and not able to defend herself, and then no further noise after that. We do know, from the appellant's version, that there was a continuous argument and dispute. I say that if it was a continuous dispute over some 15 minutes that is the sort of thing that when it stopped the listeners would be aware of. That is entirely consistent with it occurring at the very end of the altercation after he had come home from the hotel and had a dispute.

The next witness of significance is John Rawlings, another member of the household. At page 70, again he did say that there was yelling and shouting for probably an hour. At line 17:

Did you hear anything at the end of the argument?---Four or five thumps.

How would you describe those thumps?---.....How did they sound? How would you describe them?---

And he demonstrated it in the court. So that the jury was in a position to know how this man could reproduce the sound:

Is that how loud they were or were they louder?---That's how loud they were about from my place.

How far away is your place form the unit - say, the front door of the units?---With the road, plus both houses, it would be about 30 feet from the road.

After you heard those four or five thuds did you hear anything else?- --No. Went quiet.

There is a consistency, that at the end of the argument it goes quiet, and it is not just consistent between the two neighbours, it is consistent with the version, whether you accept it or not, purported to be given by the appellant. The two witnesses were Julie Anne Steele and Gary Steele were husband and wife who lived across the road from the appellant's unit. She heard three loud bangs coming from across the road, from the front of the house. She was directly opposite, and that would have been the area in the vicinity of the dining room.

BRENNAN CJ: What page is this?

MR FLATMAN: That is at page 78. At line 22:

What time are you in the kitchen speaking to your husband?---20 to 11, quarter to 11.

Did you hear something at that time?---My husband went off to clean - to the bathroom and when he was gone we both heard three loud bangs.

Just tell us what you heard?---I heard three loud bangs.

Where did these loud bangs come from?---The front of the house.

Which house?---The front of our house. The sound was coming out of the front of the house from across the road.

If you look at the plan, there house is directly opposite that part of the dining room that fronts on to the road. The witness Cronin was a retired police officer, visiting a friend - - -

BRENNAN CJ: Just pausing there, it may have been the fault of the examiner, but the way in which I read 78 to 79 is that the first thing she hears are the bangs and then there is a lot of swearing and language. Is there any other part of the evidence which indicates a contrary sequence of events? It is not very clear.

MR FLATMAN: It is not very clear:

Did you hear anything else at that time---Just a lot of swearing and language, but I couldn't make out much -

She does not say that the bangs was the last things that she hears.

BRENNAN CJ: She does not say which is which. Yes, all right.

MR FLATMAN: That is consistent with the swearing and language being contemporaneous with the banging. Bearing in mind that all of these witnesses are like eye witnesses in a sense in that it will all be subjective, it will all be according to their recollections and their experience. John Cronin, the retired police officer, was visiting a friend in an adjoining unit and he could hear scuffling, like running noises. He gives the most complete version of events. At page 99 to 106 his evidence is. At page 101:

Was there then a change in the noises coming from the unit?---There was a particularly loud thump and then followed by a series of loud thumps, not quite as loud a series of loud thumps, but after about the third thump she called out in a pleading voice, "Stop, stop, you're hurting me" and then I never heard her any more. About six or seven thumps all told.

Did you hear anything further said by Mr Meyers around about that time?---Not on that occasion, not after that.

No, I am talking about at the time you heard the thumping. Around that time was Mr Meyers saying anything that you heard?---Yes. He screamed one phrase I did catch, "I'll fix you, you ..." and it sort of became unintelligible after that.

Was that before or after the thumping?---That was during the thumping, when the thumping started.

You said that you heard Tracey say, "Stop, Noel, you're hurting me." Did you hear her say anything after that?---No.

At a later stage did you observe that other people -

Over the page, he heard those things "from the unit adjoining the Meyers unit" at page 102. He was on the front verandah of that unit. He was with a Mrs Krick and when asked how long it went on for he said:

it would be about ten minutes, I would say, quarter of an hour.

Now, it is our submission that that evidence is particularly relevant because it indicates a confrontation; it indicates an expression of intent "I'll fix you" and the rest of it unintelligible; it indicates an expression of the position of the victim, "Stop, stop, you're hurting me", he never heard her any more, and that there were about six or seven thumps all told, again, the end of the altercation and there is a consistency in that, in our submission, that all or many neighbours, Mead, Ashleigh Rawlings, John Rawlings, Julie Anne Steele, Gary Steele and John Cronin, all give evidence of thumps or bangs, one demonstrating it, Mead indicating that it sounds like a kick on a door. The common thread, from at least three of the witnesses, is that the bangs were followed by silence, Ashleigh Rawlings, John Rawlings and John Cronin.

KIRBY J: But is not the appellant's case that you do not concentrate on the 10 minutes or the 20 minutes or the half an hour, you concentrate on what actually caused the death and whether, in relation to that, there was the requisite intention?

MR FLATMAN: Yes, your Honour, but this is evidence to show that the time at which noises indicative of some sort of an assault took place, it took place at the end of the altercation, however long it took, and was followed by a period of silence and that that places the culmination or the peak, if you like, of the altercation between the parties at the time prior to her being silent and it fits in with - when you look then at the other evidence, of the appellant not being able to demonstrate any occasion earlier during the period of time that they were together in which he was aware of a situation where he caused her injury, where he caused her directly - he was unable to give direct evidence of her hitting her head against a wall or being knocked over or being struck or being injured in any form. It was only until the end of the altercation that he puts forward a proposition that she fell over.

So that you put that together with the evidence of the witnesses and you have a situation of trauma occurring at the end of the dispute but not in the way described by the appellant but by the application of several blows in the sense that there were several bangs, bumps or thuds.

BRENNAN CJ: Is this the proposition, that her death was caused by sub arachnoid haemorrhage and oedema of the brain, that that could have been caused by one or perhaps more of the injuries sustained to the head?

MR FLATMAN: Yes.

BRENNAN CJ: Any injury of that magnitude must have been produced by something which sounded by way of a thump. There were a series of thumps. They were consecutive, one after the other. They occurred at the end of the melee and they were accompanied by the statement, "I'll fix you", and from all of that the jury was entitled to find that the explanation given by the accused was false and that the death resulted from one of those thumps which was done with the necessary intent?

MR FLATMAN: Yes, your Honour.

BRENNAN CJ: Is that the proposition?

MR FLATMAN: That is the proposition, yes. That is a proposition arising out of the combination of the two lots of evidence, the neighbours on the one hand and the evidence of the appellant both in the court and in his statement to the police on the other. But you add to it the evidence of the injuries that were suffered and the evidence of Professor Cordner.

BRENNAN CJ: I do not see that that helps your case particularly because all that that does is to show that there was an injury, an intracranial injury which was occasioned by moderate force. That is as far as you can take it, is it not, in Professor Cordner's evidence?

MR FLATMAN: Except that there is a danger that in going to some cross-examination that says that it is possible that the injury, first of all, that actually caused death could have been caused by one blow and that the trauma to the head other than the trauma caused by the hair could have been caused by two or more blows. But that really says it all because really that is the extreme possibility being conceded by Professor Cordner.

BRENNAN CJ: There is a possibility which, if one puts it in the context that Mr Kent put it in, might be consistent with innocence.

MR FLATMAN: I am not certain what the context of that is.

BRENNAN CJ: What you have to do is to say that that context could have been justifiably rejected by the jury as being unreasonable, having regard to the sequence of the thumps and the silence that followed and the statement which accompanied the thumps.

MR FLATMAN: I do say that, your Honour, but it is not - the statement made by Professor Cordner that the injuries to the head were indicative of repeated blunt impacts to the head involving virtually every aspect of the head - - -

BRENNAN CJ: I do not wish to interrupt you, but have you not got to start with the cause of death in any culpable homicide case?

MR FLATMAN: Yes.

BRENNAN CJ: We have here the cause of death specifically stated to be the oedema of the brain and the sub arachnoid haemorrhage.

MR FLATMAN: Yes.

BRENNAN CJ: The question then is what causes that, and the answer to that question is one or more blows to the head. You have then another situation and that is the extra cranial bruising and that was caused by two or more blows to the head.

MR FLATMAN: I agree with that, your Honour, yes.

BRENNAN CJ: But we are concerned relevantly on the charge of manslaughter or murder to that which causes the intracranial damage, is not that right?

MR FLATMAN: We are, your Honour - - -

BRENNAN CJ: I am not saying the other is irrelevant. What I am saying is that that is the chain of causation which the Crown must establish.

MR FLATMAN: Can I put it this way. It could have been that there were things heard by the neighbours that were consistent with one blow. What has been heard here is consistent with a series of not necessarily blows but of impacts to the head. It might be impacts to the head by the head being bumped against the floor or the wall or whatever, but the evidence is consistent with that, so is Professor Cordner's evidence consistent with that. What Mr Kent seeks to do is say because it is possible that it might have been only one blow that caused the actual haemorrhage and because it is possible that it might be no more than two, that is a thing that weighs heavily in favour of the alternative hypothesis. I say that evidence as a whole is equivocal in the sense that it is consistent. The evidence really of Professor Cordner is probably more consistent with a series of blows being administered or a series of traumas being administered to the head consecutively, but you cannot exclude - - -

BRENNAN CJ: But consistency does not - - -

MR FLATMAN: Consistency is a small piece of circumstantial evidence nonetheless that can be taken into account in determining on the whole of the evidence whether the Crown has proved its case beyond reasonable doubt. You might say it is not a huge piece of evidence in its own right but it is nevertheless one of the features. Here is some evidence that the witnesses heard that is quite consistent with the culmination of an altercation and quite consistent with the victim's head being the subject of trauma for repeated consecutive impacts. That is consistent with the medical evidence.

The next step is that you concede that it is possible that it might be no more than two blows that has caused the external injuries, but that is not consistent with any of the surrounding circumstances. It is not consistent with the rest of the injuries. It is not consistent with the evidence given by the neighbours. But the danger, in my submission, lies in placing too much emphasis on what is a possibility. What really here is that it is possible to argue theoretically that one blow caused this. If you look at that in isolation - - -

BRENNAN CJ: Mr Flatman, let me put this hypothesis to you. He comes home from the hotel, he is drunk and he is in a fighting mood. She also is in a fighting mood and has had substantial liquor taken. They engage in a verbal and to a large extent physical altercation. There are some injuries inflicted to her head which could produce the bruising that is seen extracranially. He then decides that he does want to go to the phone and he does want to ring up her mother or brother-in-law or whoever it might be and in trying to get to the phone, she approaches him once more and, although he had first decided that he was going to teach her a lesson and inflict some harm on her, he pushes her out of the way so that he could get to the phone. She falls, hits her head and suffers the fatal injury. Would you be entitled, if those facts were established, to a conviction?

MR FLATMAN: If those facts were established, no, if they were established as facts.

BRENNAN CJ: Then the question is whether or not the evidence excludes it.

MR FLATMAN: Yes.

BRENNAN CJ: And your argument is having regard to the sequence of events of the thumps that is the end of the case because there is thumps, there is silence and looking at the injuries that were sustained that is sufficient to justify the jury coming to the adverse conclusion?

MR FLATMAN: Yes, that together with the fact that the alternative hypothesis has no supporting evidence, that he came home and administered some severe trauma to the deceased prior to his change of mind. There is no evidence of that and there is no evidence to support it from the circumstantial evidence. He is in a position of knowing what happened and he has not put forward that explanation.

BRENNAN CJ: He is under no onus to do that.

MR FLATMAN: No, he is under no onus to do that, your Honour, but that is still one of the factors in my submission that can be taken into account in deciding whether or not the inferences the Crown seek to have the jury draw are more likely to be taken than not, that if that really happened then one would expect some evidence that would support that. Of course he is under no onus and I am not suggesting it should be used for any improper purpose but it is part of the evidentiary overall situation and that is the difficulty, in my submission, that the argument has.

There was some evidence relied on again by Mr Kent in the evidence of Professor Cordner that related to the fact that the injuries sustained to the head were consistent with blows of moderate force. There was re-examination about that at pages 149 to 150. At line 5 at page 149:

What about bruising?---Well, it means that the carpet would absorb some of the force and therefore the amount of force applied to the head is probably a little bit greater, although the net effect is at least moderate force to the head.

Now, the questioning goes on over the page, but ultimately at line 13 on page 150:

From your experience what is the correlation between external injuries such as bruising and the injuries within the brain and how good an indicator is external bruising of trauma to the brain? Are you able to answer that question?---Well, it indicates that the brain has been shaken inside the skull and accounts for - gives an explanation for the bleeding around the brain and unconsciousness and death.

And if there an effect of a cushioned below, for example like a carpet, can that make a difference to the external appearance yet still cause an effect internally?---It tends to minimize the effect of the external appearance and still have the effect internally.

I raise that simply as some qualification of the argument that Professor Cordner was indicating that they were blows that were of moderate force. It still has to be looked at in the context of the whole of the case.

Reference has been made to the clumps of hair that had been torn from the deceased's scalp and they were found at seven different locations and they were found in the lounge and in the dining room, in particular in the lounge west of the phone book, which is not terribly clear in the photograph in photograph 10, but between the phone book and the chair that faces the coffee table according to the plan a clump of hair that had been torn from the head of the deceased was found, but more importantly on the top of the coffee table in photograph 10 is a clump of hair that had come from under the head of the deceased and that had been discovered by a police officer, Frith, referred to at page 155 in the transcript.

TOOHEY J: Line 28, is it not?

MR FLATMAN: Line 28:

Where did you find that hair before you placed - - -?---That piece of hair was underneath Tracey's head.

That is a significant piece of evidence, in my submission, to add to the evidence of the neighbours and of the thuds and the bangs before the period of silence, taken together with the explanation given by the appellant. Professor Cordner was cross-examined about the degree of force that would be needed to pull clumps of hair from the head. It was suggested that it was moderate to moderately severe, although the professor said really that is a matter of common human experience. It would be my submission that that is so; that it is a matter for the jury to take into account that there were seven clumps of hair that had been torn from the head of the deceased and that that would involve, common sense would tell you, a significant amount of force exerted to the head each time a clump of hair was removed.

The nature of the injuries, the position of the body, the history from nearby immediately beforehand and the clump of hair nearby all point very strongly to the way in which the Crown suggests the injuries were actually imposed, and that it was not a situation of the deceased simply being pushed away at the end of the altercation while the appellant was seeking to go to the phone. There is no other explanation that could feasibly be put forward as to the presence of the hair in those circumstances.

The fact that the hair was also found in the dining room, in two separate - it was found in the lounge room - perhaps before I leave the lounge room, it was found behind the couch in the lounge room, photograph No 5 - and in fact the plan at page 356 sets out the places in which the hair was found in the lounge room - but behind the couch and also at the top end of the couch in photograph No 8. It is probably hard to pick up in the photograph, but the plan shows its presence.

Over the page at page 357 there are - on the right-hand side of the plan, one can see the sketch of the phone table. The clump of hair - it is not marked as a clump of hair but a patch immediately below the phone table, and a second patch further down near the skirting board, on the right-hand side, at photograph 14. They are not easy to pick up against the bone carpet but the third place where the hair was found was in the tablecloth that is in the corner in the dining room. Your Honours can see a close-up of the hair in photograph No 20 and a position of the tablecloth in the corner of the dining room in photograph No 14.

The hair was not explained in the course of the initial comments made by the appellant to the police and it was suggested in the evidence to the court and also I think in the record of interview that she was pulling his hair and he may have pulled her hair in order to stop her doing that. It is our submission that that is not a feasible or believable explanation. The effort of removing hair from someone's head in the quantities and circumstances as occurred here is remarkable and the explanation, in our submission, is thoroughly inadequate. The removal of the hair supports the proposition of the hostility and aggression towards the victim but highly relevant, being the factor of the hair being found under the head of the body.

The Crown case came down to a number of circumstances which, when you put them together, in our submission, amounts to an inevitable inference that the appellant caused the death of the deceased in these circumstances with the appropriate intent. The deceased had no apparent signs of injury prior to that night. She sustained extensive injuries that night. Indeed, both the minority judgment and the majority judgment in the Court of Appeal acknowledged that. The injuries were consistent with a severe physical assault on the deceased and were not consistent with one fall and the assault was one of a consistent duration. There was either yelling in the initial stages or banging in the closing stages which involved continuity which made the evidence of the neighbours more cogent. The fact that the deceased had those clumps of hair torn from her scalp, the fact that they were found in many different places, particularly in the lounge and the dining room, the circumstances that were not explained of the blood from the deceased found on the light switch which led to the door to the laundry which in turn led to the back door out of the unit.

The evidence of the neighbours not just that they heard swearing and yelling but consistently by the neighbours that the yelling was done by the appellant. The evidence by Ashleigh Rawlings that at the end of the incident, the "Get off the floor, you weak bitch", the deceased being heard to say specifically the words, "Stop it. You're hurting me". The series of bangs or thumps, the consecutive nature of those bangs and thumps, whilst it is said by the appellant that that could have been the pot plant falling over or that could have been the vase in the other room, if you look at that and analyse that, on the appellant's version, that took place earlier. That took place earlier in the altercation. He says that it took place whilst he was coming in the hallway, whilst he was coming from the bedroom. These events take place at the end of the dispute, at the end of the altercation, and are not consistent with the number of bangs and the number of thumps that were heard.

As I have mentioned, the concluding part of the Crown case is that the appellant's account of the altercation just does not account for the extensive injuries of the deceased. It does not accord with the evidence from the neighbours. The appellant in his evidence did not deal with evidence from Cronin as to what was said. He did not deal with the proposition that he said he had said, "I'll fix you". He did not deal with the proposition that he had said, "Get off the floor". He did not deal with the statement that was attributed to the victim that she said, "Stop it, you're hurting me". In the circumstances of all of that, it is our submission that it was an overwhelming case for an inference that the appellant occasioned the injuries to the deceased in circumstances accompanied by the appropriate intent.

It is said there is an alternative hypothesis consistent with innocence. It is our submission that far from that alternative hypothesis being a reasonable hypothesis put forward by the appellant, it is an hypothesis based on speculation and conjecture. It does not have support from the evidence. The only basis for the argument is put on the evidence of Professor Cordner which concedes possibilities in relation to the way in which the injury - one injury might cause the injury to the brain and at least two the injuries to the top of the head.

It is our submission that if the alternative hypothesis is put that it must have occurred at the time when he went to the phone and then pushed her away and she fell over, that was so inconsistent with the surrounding circumstances, it was inevitable that that be rejected, if that is put as the alternative hypothesis.

If the alternative hypothesis is put that the injury might have occurred at some stage earlier than that, that is not supported by any evidence and runs contrary to the evidence of the neighbours and the surrounding circumstances at the close. In our submission, there is no serious alternative hypothesis available in this case and it falls far short of the proposition that a jury ought to have acquitted the appellant on the basis that it could not exclude any such alternative hypothesis. They are the matters that I want to put before the Court.

BRENNAN CJ: Yes, thank you, Mr Flatman.

KIRBY J: There is just one little matter when you have dealt with that issue, Mr Flatman. Two questions: first of all, you heard the explanation given of the way in which this really serious injury had crept into Victorian jurisprudence. Is the Crown able to give us reference to how that occurred in the history of murder cases in the Court of Criminal Appeal before the Court of Appeal?

MR FLATMAN: Like Mr Kent, mine is an anecdotal position.

KIRBY J: I do not think that is good enough for the Court.

MR FLATMAN: I can say that there was a period of time when both versions were put to the court that grievous bodily harm - - -

KIRBY J: There must be cases on this. There must be expositions of how it happened in the Court of Criminal Appeal.

MR FLATMAN: There are certainly cases that have been before the court obviously where this form of charge has been put, but I am not familiar either with any specific case that has discussed it as a central issue in the case. There must be some obiter, I agree, in relation to it.

KIRBY J: Speaking for myself, if you were to find that it would be helpful to me to have a reference to that.

MR FLATMAN: I will undertake to do that, your Honour, because we have the facilities I think to follow that.

KIRBY J: The second is the question that I addressed to Mr Kent at the end of his submissions relating to examination of how this issue is dealt with in a comparative law way in other jurisdictions. Do you know of any enlightenment that we might find from looking at what they do in New Zealand or Canada or elsewhere?

MR FLATMAN: I have not made that analysis. I proceeded on the same basis as my learned friend to apply the law as I understand it to be here to the facts of this case.

KIRBY J: The question is what is the law and whether Knight and the other cases take it as far as it can be taken or whether there is some enlightenment in other jurisdictions that would help, because otherwise we will just continue to get these differences of view in this Court and in other courts. Maybe it is inescapable.

MR FLATMAN: Because of the huge number of fact situations that come before the courts it seems to me to be very difficult to produce a formula that is any different to the formula that currently exists.

KIRBY J: It may well be and that may be what is the lesson of Knight and the other cases, but sometimes it is useful to have a dip into other countries of a similar tradition.

GUMMOW J: And other countries where the relevant sections come ultimately, from the English Court of Criminal Appeal Act of 1907. All this flows from that, does it not, one way or another?

MR FLATMAN: Yes.

GUMMOW J: That is where these sections come from.

MR FLATMAN: Yes.

KIRBY J: I have a recollection that I once looked at this in the Court of Criminal Appeal in New South Wales and that the English statutory provision was somewhat different and that that was said to justify a more stringent approach in Australia that had been adopted and was reflected in case of which Knight is the exemplar. However, if you have not analysed it we cannot get your assistance.

MR FLATMAN: I have not and I would be speaking simply from general principles.

BRENNAN CJ: Thank you, Mr Flatman.

MR FLATMAN: Before I sit down perhaps there are some page references in the outline of argument at page 12 of the respondent's outline of argument if I could correct.

TOOHEY J: You are speaking of the reference to authorities, are you?

MR FLATMAN: Yes. Gordon and Gordon 57 A Crime R 413 at 418 and Dellapatrona 31 NSWLR 123 at pages 146 to 147, and then the final one Karam 83 A Crim R, that should be 416.

BRENNAN CJ: What should be?

MR FLATMAN: Karam reads "412". It should be 416.

TOOHEY J: So the 425 in the line above simply goes, does it?

MR FLATMAN: Goes down to the line below.

TOOHEY J: It is already down there.

MR FLATMAN: Yes. It goes out. Thank you.

BRENNAN CJ: Thank you, Mr Flatman. Mr Kent?

MR KENT: Just briefly, if the Court pleases. With respect to the submission generally about the timing of the event and its consistency with whatever: I have not contended that on any particular basis of the time frame but merely indicated what the evidence was. A number of Crown witnesses say an hour and the shortest time is 10 to 15 minutes and the appellant says 10 to 15 minutes. Whatever, it is my submission that the submissions that we have made are still alive. It does not depend upon that time frame but the reference to the time frame of an hour is simply based upon the evidence of Crown witnesses. We are not contending one way or the other about it. That is evidence that is there and a jury could find that it spanned over an hour. They do not have to. They could find it was as short as 10 to 15 minutes.

As to the reference to the evidence of the neighbours and banging noises: my learned friend referred to the evidence of Mr Rawlings, this is Asleigh Rawlings, about the order of events with respect to the banging. Ashleigh Rawlings at page 18 says as to the order of events, he had - - -

BRENNAN CJ: What page?

MR KENT: What it is, is a piece of evidence in which he says that, as he said in his statement, he may be mistaken about that order of events. It is page 68, I am sorry, I misread my own figure that I have written down. It is 68.

Could you be mistaken about the order in which you heard things?--- Yes, I put that in the statement. That's at the bottom of the statement.

Although he does say in his evidence, "Yes, the order was, I heard the sound like the breaking of the plate and then heard the thumps.", a proper view of his evidence is that he is not claiming that that is definite fact situation as far as he is concerned, and never was, because he says "I put it in my statement I could be mistaken."

TOOHEY J: Except he is re-examined, about three lines further on, is he not?

MR KENT: Yes:

MR GYORFFY: That happened before the banging.

HIS HONOUR: The breaking the glass?

MR GYORFFY: Yes.

But that is what he is saying is his impression as he stands in the witness box now, but he is saying, "I've said right from the start I could be mistaken about it." The extent of that evidence remains, that whilst he is now saying, "That is what I believe", he is at pains to point that he had some reservation about that when he first even spoke about it.

TOOHEY J: He is not the only one who said it though, is he?

MR KENT: He is not the only one who said it, no, but it is not just much help to my learned friend to rely upon that piece of evidence as to support that contention. Even so, the difficulty that the respondent has about that is that it then goes to rely upon the evidence as to banging sounds and say that it is open to find that the banging was the application of force to the head of the deceased. That is a conclusion that simply cannot be drawn, in our submission. You have the evidence of Mead that he heard banging sounds which he described as banging on the door and then banging on the front door, page 54.

He says, "I'm a carpenter, I know that - and then I heard some different sounds of banging." What interpretation can people put upon the sounds of banging. He says, "I'm a carpenter, I know that, and then there were some different sounds." Other people do not claim any sort of expertise about banging on doors or anything else. They are not asked and they do not express opinions about what they are, and they cannot do that. Neither can the jury draw the conclusion or form an opinion that it would not have been proper evidence for the witnesses themselves, in my submission.

BRENNAN CJ: Let us look at the other pieces of evidence. We have got one pot plant turned over; we have got one chair turned over; and we have got a broken piece of crockery.

MR KENT: Two phone books on the floor; a brass vase with a dent in it knocked over; we have got the placemats and tablecloth as being pulled off the table. The chair may make more than one sound when it falls over. There is a - - -

GUMMOW J: On carpet?

MR KENT: Yes. A chair is not a simple object.

KIRBY J: One would not have thought placemats would make a large thump.

MR KENT: A flat object falling onto the carpet may well; who knows. But the point about it is, is that there are many, many items. There is a telephone on the floor. There is a teledex down behind the telephone itself. It is not just a matter of saying there is a chair on the floor, we get one sound out of it.

BRENNAN CJ: But taking all those things into account, and then looking at the injury that was inflicted to the head of the deceased externally, and to the removal of tufts of hair of such a nature as to suggest the application of substantial, though moderate force to the head, and then put that together with evidence from the neighbours that the thumps were heard at the end of the melee, why would the inference not be open beyond reasonable doubt that the blows to the head were of such force that the thumps are to be attributed to those injuries, and that that occurred at the end, and that it was silence thereafter?

MR KENT: Firstly, my learned friend points out that the hair is found in different locations. The Crown's contention is, if it be correct, that the deceased must have been held by the hair and had her head repeatedly banged into something.

BRENNAN CJ: That is right.

MR KENT: That is not consistent with the location of the hair in the place.

BRENNAN CJ: Why not?

MR KENT: Because it is all over the place. And presumably the Crown's contention is that there was a quick succession of blows, not that there were blows to the head in the dining area, by the coffee table, near the kitchen door, nearer to the front door.

GUMMOW J: There was a big chunk found under the head.

MR KENT: And there is a piece found under the head.

GUMMOW J: It looks a pretty big chunk from the photograph.

MR KENT: Yes. But, your Honour, there is no evidence upon which anybody could find that when hair was pulled to such an extent as to remove it from the head, where if somebody who obviously has a substantial head of hair, that it would immediately come out of the hair. It may be that the hair is pulled at another point and then it is dislodged from the head when she falls onto the ground. It is speculative to say otherwise. We do not know the answer to those questions and cannot know what happens with the pulling of the hair. There is no expert evidence of it as to whether it would come clean away from the head.

KIRBY J: But the ordinary common sense tells you that hair tends to be rooted in the head and is hard to remove.

MR KENT: But it also tangles together, your Honour. I mean I could not say that there would be any problem if somebody pulled a piece of my hair out that it would fall and land on the ground because I have not got enough of it left to retain it but when someone has got long hair, where someone has got perhaps bleached hair that might be of a different consistency than undyed hair, who knows. There is no evidence about this and we cannot draw those conclusions, with respect, your Honour.

What is it that the Crown says the thumps were? We do not really know. Where did they take place? We do not know. There was hair also in the bedroom on the bed. There is evidence about that, that it is not of the quantity as the other pieces of hair and it may have been consistent with the hair having been combed but the person losing hair while sitting on a bed combing their hair. But certainly the other evidence is that there is hair pulled out by the roots and I do not know what the evidence is about whether there was hair pulled out by the roots there. It is not clear. They are the only matters that we have by way of reply, if the Court pleases.

BRENNAN CJ: Yes, thank you, Mr Kent. The Court will consider its decision in this matter.

AT 3.43 PM THE MATTER WAS CONCLUDED