SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  Phillip John Glattback was convicted of murdering his former partner, Anita Scipione.  He unsuccessfully appealed against that conviction to this Court.  He was also unsuccessful in his application for special leave to appeal to the High Court of Australia.  He then petitioned for a pardon from the Governor of Queensland, who referred the matter to this Court for determination as in the case of an appeal under s 672A Criminal Code 1899 (Qld) ("Criminal Code").

[2] I agree with Keane JA's reasons for dismissing Mr Glattback's appeal subject to the following observations which can be briefly stated because of his Honour's comprehensive analysis of the relevant facts and issues.

[3] Mr Glattback instructed his lawyers that he did not wish to give evidence himself or to adduce evidence of the deceased's medical and psychiatric history.  I accept that those instructions were probably influenced by his trial lawyers' advice that the evidence of the deceased's medical history lacked utility in his defence.  His trial lawyers, apparently after carefully reviewing Ms Scipione's medical history, determined that it did not provide "a reasonable basis to conclude that Ms Scipione was suffering any relevant psychiatric disturbance at or around the time of her death, or even within a substantial period of time preceding her death".[1]

[4] It is significant that portions of Ms Scipione's medical history appeared unfavourable to Mr Glattback in that they referred to his physical aggression towards her and his significant narcissism.[2]  Were Mr Glattback permitted in any retrial to call evidence of Ms Scipione's medical history, he would risk the receipt of further unfavourable evidence of his domestic relationship with Ms Scipione: Evidence Act 1977 (Qld), s 132B.

[5] On the limited material Mr Glattback has placed before this Court, it appears that his trial lawyers determined that the evidence of Ms Scipione's medical history was probably irrelevant and inadmissible because his account was that she slipped and hit her head a number of times during their scuffle which preceded her death[3] and also because the history of any psychiatric illness of Ms Scipione was seven years old and the more recent reports suggested that she was "quite normal, enjoyed social activities like bowling and a glass of wine etc. and Phil was this abusive husband".[4]  The present case therefore differs significantly from Re Knowles[5] where trial defence counsel would like to have called evidence (that the deceased had in the past become aggressive and violent after consuming moderate amounts of alcohol) but firmly (though wrongly) believed such evidence was irrelevant and inadmissible.  By contrast, the material before this Court suggests that Mr Glattback's trial lawyers simply did not think Ms Scipione's medical history would be helpful to Mr Glattback's case.

[6] That was a legitimate view of Ms Scipione's medical history fairly open to competent lawyers to take.  Even if evidence of Ms Scipione's medical history was able to be led at trial as relevant and admissible as showing her true relationship with Mr Glattback or, unpromising as it may seem, as evidence of an alternative cause of death, it may well have been tactically disastrous to lead it.  It was potentially double-edged.  The legal opinion formed by Mr Glattback's lawyers as to the undesirability of calling evidence of Ms Scipione's medical history (conveyed to and apparently ultimately accepted by him in the exercise of his free and informed choice not to give or call evidence) was a legitimate view of that evidence and one fairly open to competent lawyers to take.  Even accepting that the medical history was of some relevance and admissible, the decision not to call that evidence at trial was a rational, tactical decision made to avoid a forensic risk, namely that the evidence could well develop unhelpfully to Mr Glattback's case when at best it was of only marginal relevance and assistance in the light of its more recent effect and Mr Glattback's account of events.  Failure to call that evidence at trial did not give rise to a miscarriage of justice within the meaning of those words in s 668E(1) Criminal Code: TKWJ v The Queen.[6]

[7] Mr Glattback has failed to persuade me that the receipt of the further evidence placed before this Court of Ms Scipione's medical history, which was not before the jury at his trial (nor before this Court in Mr Glattback's previous appeal; nor before the High Court in his special leave application) demonstrates, that if it had been, there is a significant possibility or it is likely that a reasonable jury would have acquitted him so that a miscarriage of justice within the meaning of those words in s 668E(1) Criminal Code has resulted.[7]

[8] The order is the appeal is dismissed.

[9]  KEANE JA:  On 13 February 2004, the appellant was convicted upon the verdict of a jury of the murder of Anita Scipione ("the deceased").  On 1 October 2004, an appeal against his conviction was dismissed,[8] and on 21 March 2005 an application to the High Court for special leave to appeal was refused.[9]

[10]  On 7 December 2006, the whole case was referred back to this Court, pursuant to s 672A of the Criminal Code 1899 (Qld) ("the Criminal Code"), for this Court to determine as "if it were an appeal".

The evidence at trial

[11]  The evidence adduced in support of the Crown case at trial was discussed extensively in the 2004 reasons of the Court of Appeal.  It is not necessary to repeat that discussion.  For present purposes, the Crown case may be summarised briefly.  The deceased died in her house at around 10.30 am on 12 July 2002.  The appellant was the only other person with her when she died.  They had lived together for several years and had a young son.  Their relationship had ended and the deceased wanted the appellant to move out of the house which she wished to retain.  There was evidence that the appellant had expressed an unwillingness to move out.  On the previous evening, the appellant and the deceased had argued about the fact that the appellant had been seeing another woman, Ms Jury.  The deceased had abused Ms Jury who had not known of the relationship between the appellant and the deceased.

[12]  On 12 July 2002, the police were called to the scene at 10.28 am by Mrs Draper, a neighbour who heard the deceased screaming repeatedly:  "Please, please Phil, don’t kill me."

[13]  Police were shown by the appellant to the deceased where they found her on the ground in the garage in a pool of her own blood.  She had suffered extensive injuries to the head.

[14]  Dr Charles Naylor, a forensic pathologist, performed a post-mortem examination of the deceased.  He observed extensive bruising to the left cheek and a lesser degree of bruising over the right cheek.  Underneath the skin, there was bruising to the left, front and side of the head.  There was also widespread bruising over the right side of the head.  Dr Naylor thought that some of the injuries to the head and face of the deceased were unlikely to have been caused by falls, and were more likely to be the result of a punch.  There were small areas of bleeding known as petechiae on the inside of the eyelids and the surface of the lungs.  There were a number of areas of bleeding in the structures of the deceased's neck.  There was bleeding in the right area of the salivary glands on the jaw and in the covering of one of the muscles on the right and a lesser degree of bleeding over the corresponding muscle on the left.  There was bleeding on the left side of the upper neck.  In that area, he found a fracture of the thyroid cartilage of the voice box, and, behind the voice box, there was bleeding about halfway along the spine just in front of the neck.  This Dr Naylor "interpreted … as … indicative of an impact or severe pressure to the structures of the neck".  His opinion was that:

"the main cause of death was compression of the neck, and the evidence for this is that there was a fracture in the neck structures … petechiae inside all four eyelids and over the lungs and the various areas of bleeding or bruising within the neck structures."

He said that the changes in the neck "strongly suggest that the neck was compressed by something such as a hand".  Dr Naylor was, however, willing to accept that it was possible that some other cause may have accounted for the damage he observed in the neck structures of the deceased.

[15]  The Crown also adduced evidence from neighbours to the effect that the appellant was given to abusing the deceased and taunting her about "being a psycho" and about her previous attempts to kill herself.  This evidence was said to demonstrate the abusive nature of their relationship.  The appeal to this Court in 2004 was concerned principally with the admissibility of this evidence of the relationship between the appellant and the deceased.

[16]  The appellant's case was that the death of the deceased was accidental in the sense that he had done nothing to harm the deceased whose death was due to misadventure.  Evidence that the deceased had a psychiatric condition was before the jury.  There was evidence from Dr Park that the deceased was receiving ongoing drug treatment for depression, and there was evidence from Mrs Smith, a neighbour, to the effect that the deceased was "having psychiatric treatment".  The evidence of Ms Jury, a girlfriend of the appellant whose relationship had been kept from the deceased until shortly before her death, of an angry verbal attack upon her by the deceased the night before the fatal incident was also before the jury.  The appellant did not give evidence at his trial; but out of court statements made by him as to the circumstances of the death of the deceased were placed before the jury.  As will be seen, these were to the effect that, when he and the deceased became involved in a scuffle in the garage over whether she should attempt to drive while still affected by alcohol after drinking an excessive amount of Cointreau the night before, the deceased slipped over and hit her head.  Evidence of an analysis of the deceased's blood at the time of her death showed that no alcohol was present.

The appellant's argument in this Court

[17]  On the appellant's behalf, it is now argued that a miscarriage of justice occurred at trial as a result of the failure of his legal representatives to prove the deceased's history of psychiatric illness.  It is clear that the appellant's legal representatives at trial were aware of the availability of this history:  indeed, they had collected the information themselves in the course of a commendably thorough preparation of the appellant's case.  Nevertheless, they declined to seek to put that history into evidence because they regarded it as irrelevant to the appellant's case which was based on a defence of accident.  They were also of the view that the psychiatric history of the deceased would be likely to do the appellant more harm than good with the jury if the extent of the fragile psychiatric condition of the deceased were laid out in detail to the jury and set beside the evidence of the appellant's abusive treatment of her.

[18]  On 10 February 2004, the appellant gave his former lawyers signed instructions that he did not wish to give or call evidence; and that he understood that, as a result:

"…

3. Certain evidence which only I can give will not be placed before the jury (such as details of [the deceased's] drinking and illness the night before her death, her convulsion just prior to death, and my wiping of the Cointreau bottles, etc)

…"

[19]  The appellant says that his former lawyers failed to make him aware of the full extent of the material available to establish the deceased's psychiatric history.  The appellant has sworn an affidavit to the effect that his decision not to give evidence was linked to the refusal of his lawyers to adduce evidence of the deceased's psychiatric history.  The appellant has sworn:

"… I had been informed that there was no available independent information before the jury to support my assertion that [the deceased] had a history of psychiatric illness, diagnosis for schizophrenia and hospitalisation in mental health institutions and that she was possibly having such an episode in the day or so before she died.

     If I had known that such evidence was available I would have insisted that it be marshalled into admissible form and placed before the jury. I would also have given the account as set out in my statement to my trial lawyers."

[20]  On the appellant's behalf, it is submitted that the appellant's legal representatives at trial had wrongly concluded that the evidence of the psychiatric history of the deceased was not relevant to the defence of accident raised by the appellant.  It is said that this error, and the appellant's consequential decision not to give evidence, deprived him of a fair chance of acquittal.

[21]  The bases on which it is said that the deceased's psychiatric history was relevant and therefore admissible are succinctly stated in the appellant's written submissions.  There it is said that:

"the evidence both supported the account given by [the appellant] in respect of her death by making it far less implausible, and it addressed and contextualised the highly prejudicial relationship evidence received by the jury, which they would have understood could assist them in determining the requisite intent to convict the appellant of murder."

Re Knowles

[22]  The focal point around which the appellant's arguments in this Court were organised was the decision of the Full Court of the Supreme Court of Victoria in ReKnowles.[10]  It is, therefore, convenient to refer to this decision now.  In that case, a man was accused of murdering a woman with whom he had been involved in a sexual relationship.  He had stabbed her in the course of a physical struggle.  His account was that, while she was affected by alcohol, she had attacked him with a knife.  His defence was one of accident, or, more accurately, that the mortal wound was not inflicted by a voluntary and conscious act on his part.  The accused was advised by his counsel at trial that evidence from two other men in relation to the deceased's mental condition was irrelevant and, therefore, inadmissible.  One of these men (Swaine) said that the deceased became aggressive and physically violent after consuming alcohol.  The deceased's former husband (Saunders) said that the deceased was so argumentative and aggressive during their marriage that he thought her mentally unstable; on one occasion, in the course of an argument, she "came at [him] with a knife".

[23]  The Full Court of the Supreme Court of Victoria held that the accused's trial had miscarried because of his counsel's error in failing to appreciate that this evidence was relevant and admissible.  That was because that evidence:

"could have removed the strong appearance of unreality from the petitioner's evidence as to the conduct of the deceased and his apprehensions at the opening of the fatal scene.  Indeed, it was evidence which could have been regarded as giving a strong indication that that part of his evidence was consistent with an established pattern of conduct by the deceased."[11]

[24]  The decision in Re Knowles was discussed by McHugh J in the High Court in TKWJ v The Queen.[12]  McHugh J said:

"Sometimes the error of counsel may have so plainly affected the result of the trial that a miscarriage of justice will have occurred even though the error involved a forensic choice or judgment and did not constitute 'flagrant incompetence'. In Re Knowles ([1984] VR 751), the Full Court of the Supreme Court of Victoria ordered a new trial where counsel failed to call two witnesses because he believed that their evidence was neither relevant nor admissible. On a charge of murdering his de facto wife, the accused claimed that he had accidentally stabbed her when he attempted to take a knife from her after she had become belligerent and abusive while intoxicated. The two witnesses, who had been in relationships with the deceased at earlier times, would have testified that she became aggressive after drinking. I would have thought that counsel's view as to admissibility was arguably right. But the Full Court held that the evidence was admissible (Re Knowles [1984] VR 751 at 762) and that counsel's error was a 'fundamental error' (Re Knowles [1984] VR 751 at 770, 771) which had resulted in a miscarriage of justice. Re Knowles ([1984] VR 751) must be regarded as authority for the proposition that a miscarriage of justice may occur when counsel makes a legal error as to a fundamental point even if counsel's view is arguably correct."

[25]  The broad issues which arise in seeking to apply the approach in Re Knowles to the present case are whether the appellant's former lawyers erred in law in their appreciation of the relevance of evidence of the deceased's psychiatric history, and whether that error deprived the appellant of a fair chance of acquittal.

[26]  In relation to the first of these issues, the difficulty which confronts the appellant becomes apparent when one seeks to identify how it is said that the chronicle of the deceased's psychiatric illness serves to render the appellant's version of the fatal incident more plausible.  If the deceased's psychiatric history does not reveal a pattern of behaviour which serves to explain and render credible that which otherwise seems implausible, then that history lacks the kind of probative value referred to in Re Knowles.  In relation to the second of these issues, a related difficulty arises:  it is simply not possible to accept that a reasonable jury would have entertained a reasonable doubt about the appellant's guilt if the deceased's psychiatric history had been put in evidence and the appellant had chosen to give evidence.

[27]  In order to explain the extent of these difficulties for the appellant, it is necessary first to set out the appellant's versions of the incident and the psychiatric history of the deceased.

The appellant's versions of the fatal incident

[28]  The police officers who attended at the scene of the deceased's injuries in answer to the neighbour's call found the deceased lying on her back on the floor.  She was not breathing and she had no pulse.  Her eyes were swollen, black and shut.  There was a quantity of blood on the floor behind a large wound at the back of her head.  There was a large white plastic bag covered in blood.  The appellant said at this time:  "We were having an argument, she fell over and hit her [head]."

[29]  The appellant spoke further to Mr Dugger, a police officer, at 11.10 am on 12 July 2002.  This conversation was recorded.  The appellant said that the deceased had become "really shitto about" the fact that he had been seeing another woman.  During the preceding night, the deceased had become "absolutely pissed out of her head" drinking Cointreau, and was "still pretty pissed" that morning.  She was referring to this other woman as a "fucken slut".  He asked her "Please, Anita, don't do that please."  The appellant went on:

"… we were in the laundry and she was on about driving and I said, 'Please don't drive, don't drive, you can't drive, you're drunk, you know, think about Phillip, think about yourself' you know, and then I tried to sort of stop. I said, look please just stop and held her by an arm like, just both arms and I said to her, please stop and she sort of broke away and took a swing at me and hit me and then I sort of - we scuffled a bit and then she fell on the ground and like - I don't know, she just sort of - she hit her head and there was a lot of blood and I - I sounded to her, I said, 'Please stop, stop, stop.'  I said, 'You're bleeding, you're bleeding' and I tried to grab a plastic bag that was on the floor. I just grabbed it and tried to put it on her head and she just - even more she just started hitting me and punching me and I tried to sort of hold her, and then, of course, all the blood was on the floor and she just fell over and she fell over again and she hit the ground again and like I was just holding her and trying to hold her and she was getting up. Mate, the strength was unbelievable. It's just - she was just like throwing me off and I kept saying to her, please, please, please, stop, stop, stop, stop, stop, stop. I said, 'You're hurt, you're hurt, you're hurt' and I was screaming at her and she was saying, 'You're trying to kill me, you're trying to kill me' and she was f'en and blinding at me nothing and she kept - she just kept falling over and then she went down bang, really really hard and she like didn't move and I - and I grabbed her and – I just sort of was holding her and I was – I was trying to shake her and everything and - and then I tried to feel for like - listen to her breast like for the heart and I - I tried pumping the heart like the CPI because I know CPI and all that stuff and I screamed at her and then I run upstairs because I was going to make a phone call to get – try and get an ambulance and the next minute I heard the police car and that's why I came flying downstairs and opened the door …"

It will be noted that, in this version, the deceased fell for the first time during the course of a scuffle with the appellant after she had broken away from his hold on her arms; and that, after her first fall, she kept "hitting and punching" the appellant while he tried to hold her.  The deceased was said to have fallen again and again while the appellant was "trying to hold her and she was getting up".  It is to be noted, in the light of the later accounts by the appellant, that this version does not suggest that the deceased slipped and fell before becoming engaged in any "scuffle" with the appellant.  Finally, it should be noted that this version does not suggest, either that the appellant applied any pressure to the neck of the deceased, or that he had any occasion to do so.

[30]  There was more to this recorded conversation between the appellant and Mr Dugger, but it was not led in evidence:  these parts of the conversation were excised from the evidence by agreement between the parties prior to trial.  The relevant parts were as follows:

"Dugger:'What happened?'

Glattback:  '… Anita and myself have been – had ongoing arguments for a while right.  She had a lot of psychiatric problems and I took – um is the first one a DVO, a Domestic Violence Order?

…

Glattback:'I hurt my finger when I slipped over on the floor'

Dugger:'… you've got just some blood on you and blood on your jeans …'

Glattback:'… I think it was just where I fell over where she was bleeding, you know, we just like fell on the floor … I was just trying to hold her because she was going hysterical … I was trying to stop her from bleeding…'

…

Glattback:'Fuck me.  Just ridiculous, bloody society does nothing to help her and all they do with the psychiatrist is tell you you're wrong every time you try and help them.'

…

Glattback:Sorry, yes one mate, yeah.  Anita has a lot of – early on in our relationship a lot of really bad psychiatric problems.  We ended up in, um, the – like a psychiatric hospital for several months at a time.  She was on a lot of heavy drugs and stuff like that but she won't go and help herself. She won't go and see a psychiatrist at the moment.  I'm afraid when you see the psychiatrists, you talk to them and you try and help them out and they tell you you're a bloody idiot anyway so, I mean, it's sort of like a catch 22, you can't win.  You try your best to help the people out and then society's upper level decides that you're doing the wrong thing.  Mate it's hot."

To the extent that it might be thought that the appellant was here suggesting in this conversation that he had taken out a domestic violence order against the deceased, that was not the case.  In truth, a domestic violence order had previously been made against the appellant for the protection of the deceased.

[31]  A telephone conversation between the police and the appellant's brother's wife, Paula, was covertly recorded by the police.  This conversation was not tendered at trial.  It included the following:

"Glattback:'we had – we just had a massive fight.  She's just been f'ing and blinding, carrying on during this – took a swing at me and everything.  She was pissed from last night.  She wanted to drive the car – I wouldn't let her.  I should have let her bloody well go as usual – me protecting her has cost me now … it was just a total accident, you know, I mean, she – she was trying to hit me and I was trying to stop her and then she fell over and then – she got – fell over again.  I fell over and oh fuck me dead, I (ui) – wish I'd just let her go and get in the fucken car – kill her bloody self that way, I mean it's just stupid and I should not have tried to stop her …'"

It will become apparent that, in later versions, the appellant did not persist with an assertion that the deceased "took a swing at him".  Once again, it should be noted that there was no suggestion that the deceased's initial fall occurred because she simply slipped on the floor of the garage while not engaged in a scuffle with the appellant.  Importantly, it is to be noted that, as in the appellant's conversation with Mr Dugger, the appellant's assertion was that the occasion for "the scuffle" was the appellant's solicitous attempt to stop the deceased from driving because the deceased was drunk from the previous evening's drinking.

[32]  A record of a telephone conversation between the appellant and Mr Allen Pappas, his community corrections officer, was tendered in evidence at trial.  It was relevantly in the following terms:

"Glattback:'I didn't loose [sic] it. I didn't loose [sic] anything, mate.  I was quite totally under control…I sort of said to her, 'Look, you know, I'm leaving. I'm getting out of here' and, um, last night – oh well, she went off her head over at some friends' places and mine and f'ing and blind in the street like she normally does and then she come home and I tried to settle her down … she laid into, um, about half a bottle of small Cointreau, one of them medium size bottles and she polished that off and then went for the big one.  Anyway, she was up and down all night sick and everything and I looked after her …Got her into bed … then this morning she's just got up and she's just ranting and raving … 'Fuck this.  Fuck that' and screaming and all the time and I said to her, you know, 'Look, just calm down …' and the next minute she was like, 'I want to go out. I'm going out.'  I'm going,  'You absolutely can't drive, you know.  She was obviously still drunk and she – I know those tablets and that she's on … she went to go downstairs …I was trying to keep her calm … then we got down in the garage and I - she tried to push past me, so I grabbed both her arms and I just said, 'No, please, don't be stupid.' You know, 'You can't drive when you're drunk' and then she just like pushed me off and then, you know, I sort of tried to hold her and we ended up falling over and she smacked her head on the bloody ground and split that open.  So there was a – I had a plastic bag.  I grabbed that and I tried to put that across her head and say to her, you know, 'Look, just stop the bleeding.  Let's just stop the bleeding', you know, and she was screaming, 'You're trying to kill me' and all this shit and I just said to her, 'Please, don't be stupid', and 'cause the more she pushed and shoved, she – we got up again and we fell over again and we got up and we fell over and, like, we were just up and down like bloody yo-yos and every time she fell over she was smacking her head and bloody, you know, just making things worse and I was trying to stop her.  I was trying to hold her and, like - and then, um, - then she just sort of stopped and nothing was happening and I sort of felt quickly for her pulse and for her heart and nothing has  happened … I took him down the school.  I come home and she was sort of half asleep and that and I made her a cup of tea and everything and then she whinged and moaned about that.  Then she had a shower and then she come out and then …she just lets off with [rallies] …I just said, 'I don't want you to make me angry.' … like as I said to you before, we haven't had any major problems, you know … I know that there's a abusive phone calls charge out on her, um, from my ex-wife because she – she phoned - phoned them and started abusing them …'"

It will be apparent that, in this version, the appellant asserted that they fell over together the first time she fell when she pushed him and he "tried to hold her".  The appellant did not subsequently persist with this assertion.  It may also be noted that the appellant said that he "felt quickly for her pulse and for her heart".  The appellant's assertion that the deceased was "obviously drunk" should be noted.

[33]  On 16 January 2003, the appellant signed a detailed statement prepared by his lawyers.  In that statement, he said:

"A short time later I was in the garage, I think I was in there getting some string or some tools for the balcony renovations I was conducting. Our garage was full of all sorts of building materials. It was so full that, despite it being a double garage you couldn't really fit any cars in it. It housed two boat motors, timber planks and trestles, scrap metal and other building materials. Anita came down into the garage and I noticed that she had got changed into new clothes, although I cannot recall or describe exactly what they were. She said that she was 'going out for a while'. I indicated, 'No, don't go, you're still too drunk'. I basically told her to go back to bed and get some more rest. As I recall, she was standing right next to me. I said things like, 'You could kill yourself'.

     I recall I took hold of her arms gently, on either side of her. I did so just to console her and try to steer her back to bed … I was trying to put into practice the technics [sic] I had been taught through the Domestic Violence Courses that I had attended as part of my probation. I recall that she shrugged me off rather aggressively, throwing my hands off her arms by quickly lifting her arms up above her head. I stepped backwards a metre or so just from the force of her reaction. She then turned to her left and slipped. I recall that as she slipped, she went down and hit her head very heavily. I recall the thumping noise. Straightaway, I could see blood on the garage floor. It appeared to be coming from where she had hit the left side of her head. I was standing about one to two metres away. She was on her side and I went over and rolled her onto her back. She went hysterical, yelling at me and saying that I was trying to kill her. She was totally out of her mind it seemed. I tried to tell her to stay still. I was only trying to help her but she was out of control. She started to stand up and I tried to help her and it was at this stage that we both slipped over and ended up on the floor. I then left her on the floor, got up, stepped away and went around the cupboards in the garage to get a rag … There was already lots of blood everywhere. As I was coming back over to her I saw her attempt to get up. She crashed down again for the third time in the same spot. The floor was very slippery from the blood. I was about three metres away at that stage. I am not sure what part of her body connected with the floor as she fell for a third time. I got to her and knelt down, effectively sliding in the pool of blood. I put the rag on her face, towards her left temple. As I was doing this, I realised that I had grabbed a pool rag. It is the one I use to clean up any hydrochloric acid that may be spilt when I maintain the pool. (The rag was actually an old pair of Phillip Jnr's tracksuit pants). In my haste I hadn't notice which rag I had grabbed. I quickly took the rag off her face and threw it away. I threw it under a cupboard standing in the middle of the garage and I believe it landed up out on the other side of the floor ...

     I was continually telling Anita to stay still, I don't think I was yelling but I was probably talking quite loudly. I didn't have my hearing aid in at this time and that tends to make me talk quite loudly. Time seems like an absolute blur, the whole thing felt like half an hour but it was probably five minutes all up. I remember then grabbing a plastic bag (like a shopping bag) … and I ran around back to Anita. As I did so, she tried to get up. Again she crashed down onto the floor and this time landed across some wooden easels, hitting them face first and knocking them over. I believe they may have ended up under some timber which was propped up nearby. I was a couple of metres away when she fell for the fourth time. I recall that she hit her face and was lying face down on the concrete. At that stage she had what appeared to be a seizure. She started convulsing. Her whole body was shaking violently and rapidly. This shaking seemed to last for about ten seconds.

     As she was convulsing I grabbed her and pulled her up, rolling her over so that her head was resting on my legs. I was cradling her. I was holding the plastic bag up against her head in a fairly useless attempt to try to stem the blood flow. There was blood absolutely everywhere. It seemed as though we were bathing in it.

     Anita suddenly went limp. I've got no idea if her eyes were open or not. I just recall her face being covered in blood. She was still on her back with her head in my lap. I was crouching down with my left arm cradling her head, and the plastic bag in my left hand holding it against the left side of her face. I remember at this time feeling for a pulse in her throat area. I did so with my right hand. I recall pressing into her throat with my fingers fairly hard. She was a large woman with a thick neck and I had to press in hard to try to find a pulse. There was blood all over her and my fingers kept slipping. I could not feel any pulse. I am trained in first aid and would generally be capable of finding a pulse. I then felt around her chest area (heart for a pulse) but could not find one there either. I then did a couple of heart compressions (CPR manoeuvres).

     After this I placed her head onto the garage floor and ran upstairs to make a telephone call requesting an ambulance. As I did this, I heard a police car coming around the comer. I ran back downstairs into the garage again and heard the police coming to the door. I opened the door and let them in, saying, 'Quick, she's in here'. I ran in ahead of the police and tripped on the stairs and crashed to the floor …" (emphasis added)

It will be apparent that, in this version, the first fall, ie the fall described in the highlighted sentence, was not said to have occurred in the course of a scuffle; indeed, no reason for that fall is identified, except possibly a loss of balance on the part of the deceased.  How such a fall could have resulted, as a matter of the mechanics of human movement, in the deceased hitting "her head very heavily" so as to leave blood on the garage floor is not explained.  Further, this is the first occasion on which the appellant mentioned that the deceased fell face down.  It is the first occasion when the appellant described a fall which might account for injuries to the deceased's face which were observed in the post-mortem examination.  This version also contains the first suggestion by the appellant that he pressed the deceased's throat "fairly hard" with his fingers in an attempt to find a pulse.  This suggestion offers a possible explanation for the fractured thyroid cartilage of the deceased's voice box. 

[34]  The committal hearing took place on 12 February 2003.  On 6 February 2004, the appellant signed a further statement prepared by his lawyers.  This statement would seem to contain the account which the appellant now swears that he would have given at trial had he been properly advised.  In this statement, prepared as it states to correct "falsehoods" in his previous statement to his solicitors, his account of events changed.  This statement acknowledged that he had exaggerated the amount of alcohol that the deceased had drunk on the night before the fatal incident, although this statement adhered to the proposition that the occasion for the physical confrontation was the appellant's solicitude for the deceased because she was "still too drunk" to drive.  As has been seen, the evidence in the Crown case, which can be taken to have been fully exposed at the committal hearing, was that the deceased's blood alcohol concentration at death was nil.  Other relevant points of difference with his statement of 16 January 2003 are highlighted in the passage below:

"In The Laundry

     When I got down to the garage I heard Anita in the laundry. I did not see Anita come downstairs. She may have come down the back stairs or front stairs. She walked towards the garage and I walked towards her and we met at the clothes horse, which is still in the laundry area. I noticed that she had got changed into new clothes, although I cannot recall or describe exactly what they were. She said that she was 'going out for a while'. I indicated, 'No, don’t go, you're still too drunk'. I basically told her to go back upstairs and get some more rest. As I recall, she was standing right next to me. I said things like, 'You could kill yourself or someone else'.

     She tried to walk past me and I recall taking hold of her left arm with both hands. I did so just to console her and try to steer her back upstairs. I was trying to put into practice the techniques I had been taught through the Domestic Violence Courses that I had attended as part of my probation.

     She pulled violently away, flailing her arm out as she did so. I think her arm hit me on some part of my body, but I am not sure where. I have stated earlier that she took a swing at me, but this is not correct. It is more correct to say that she just threw her arm out as she was pulling away from me. As she pulled away she said words to the effect of 'Piss off' or 'Leave me alone.'

In The Garage

     After she pulled away from me she walked past me and into the garage … I went around and stood in front of her, effectively blocking her passage to the door. I told her that she was obviously upset. I tried to console her and said things like 'You are going to kill yourself and kill someone else.'

     At that point I took hold of both of her arms with my hands. I was not forceful. I was trying to guide her out of the garage and back up the stairs. I did not want her going out. I was really trying to put the domestic violence techniques into practice. I recall that she then aggressively threw her arms up in the air by quickly lifting her arms up above her head, throwing my hands off her arms. I was thrown backwards a metre or so just from the force of her reaction. At the same moment she went backwards also and slipped on the garage floor. The floor to our garage is very slippery. I certainly did not push her because I was holding onto her arms and so was unable to push her.

First Fall

When she slipped I was about 1 or 2 metres away from her. I recall that she slipped and hit her head very heavily, I am not sure what part exactly. I recall the thumping noise. She may have hit the metal strips laying on the floor, but I am not sure of this. Straightaway, I could see blood on the garage floor. She was on her left side and I immediately rushed to her and rolled her onto her back.

     I bent over her and said 'Are you alright, you are bleeding, you have hit your head, stay still.' After I rolled her over onto her back I grabbed a plastic bag which was just nearby and I put it onto her head to stop the bleeding. Contrary to my previous statement I never attempted to stop the flow of blood with a rag.

Second Fall

     As soon as the plastic bag touched her head she went hysterical, yelling at me and saying that I was trying to kill her. She was totally out of her mind it seemed. I tried to tell her to stay still. She tried to push me off. I was only trying to help her, but she was out of control. The bag had only touched her head for a few seconds when she started to try to stand up. I tried to help her up while still trying to apply the bag to where the cut in her head was. She was falling all over the place. I was wrestling with her for control and she was wrestling with me to try and get away from me. I was still holding on to her and we were about 3/4 of the way to standing up when she slipped again and fell down a second time, dragging me down with her. This all happened in one continuous movement.

      After Anita's second fall (and my first) we continued to wrestle for control. She may have knocked the trestle and easels over and she may have knocked over the paint tins and crashed into the metal strips. I am not sure of when she hit things or whether or not I hit them. There was already lots of blood everywhere on the floor. Before she attempted to get up again I continued to try and get her under control and stop the flow of blood by putting the bag up against her head. She attempted to get up again, which she did. I got up too. The floor was very slippery.

Third Fall

     She fell down again landing face down and I fell about 1 metre away, landing on my buttocks. I am not sure what part of her body connected with the floor as she fell for the third time, but I have a feeling that her head hit the ground as she fell because I heard a loud bump.

     At that stage she had what appeared to be a seizure. She started convulsing face down. Her whole body was shaking violently and rapidly. I froze for perhaps 10 to 15 seconds, but it is difficult to recall the exact time. I got to her and knelt down, effectively sliding in the pool of blood.

     As she was convulsing I grabbed her and pulled her up and rolled her over. I was kneeling on her right side and leaning over her with my knees on either side of her right knee. She was still shaking. I put her hand to my face in an attempt to reassure her that I was not trying to hurt her. I was still holding the plastic bag up against her head in a fairly useless attempt to try to stem the blood flow. There was blood absolutely everywhere. It seemed as though we were bathing in it. At that point her arm fell down, catching as it went my neck chain and pulled it off. It came off easily because the clasp was very weak. At some stage my glasses also fell off, but I am not sure when.

     Anita suddenly went limp. I've got no idea if her eyes were open or not. I just recall her face being covered in blood. The plastic bag was in my left hand and I was holding it against the left side of her face. I went forward and checked her breathing by placing my cheek up against her mouth. I also pulled up her shirt so that I could see her chest and check whether she was breathing. I remember at this time feeling for a pulse in her throat area. I did so with my right hand. I recall pressing into her throat with my fingers fairly hard. She was a large woman with a thick neck and I had to press in hard to try to find a pulse. There was blood all over her and my fingers kept slipping. I could not feel any pulse. I am trained in first aid and would generally be capable of finding a pulse. I then felt around her chest area (heart for a pulse) but could not find one there either. I then did a couple of heart compressions (CPR manoeuvres), but I did not get any response. Given the circumstances, the fact that Anita was someone close to me and the fact that I was under a great deal of stress, there is a possibility that I did not check for Anita’s pulse correctly. I believe that I did not do any mouth to mouth, despite having previously suggested I did. I certainly do not recall doing this.

     After this I placed her head onto the garage floor and ran upstairs to get my mobile phone and make a telephone call requesting an ambulance. When I was upstairs I heard the police car coming around the corner. I may have seen it, but I am not sure. I ran back downstairs into the garage again and heard the police coming to the door. I opened the door and let them in, saying, 'Quick, she's in here'. I ran in ahead of the police and tripped on the stairs and crashed to the floor …"

Importantly for present purposes, one may note, in this version, the absence of any suggestion that the deceased attacked the appellant at any time.  It may also be noted that this is the first occasion on which the appellant suggested that the slippery nature of the floor contributed to the deceased's initial fall. 

The psychiatric history of the deceased

[35]  The records of treatment of the deceased by medical practitioners were summarised in the appellant's submissions in this Court.  According to that summary, the deceased was first diagnosed as suffering a psychiatric illness in 1986 by Dr White.  She was variously diagnosed with schizophrenia, psychosis, bipolar disorder and depression.  She suffered psychotic episodes which coincided with breakdowns in her personal relationships.  The deceased was diagnosed with lupus in 1994.  She was prescribed medication for this condition and for her psychiatric illness, and was on medication at the time of her death.  There was some speculation as to whether the lupus, or the medication prescribed for it, affected her psychiatric condition.  There was only one reported episode of non-compliance with her medication, and that was in early 1987.  Dr White noted in 1998 that the deceased had "always been cooperative and compliant with her treatment and medication", and Dr Johnson noted in 2001 that the deceased "claims to be compliant with meds".  The deceased made three documented attempts at suicide:  on 2 February 1995 (jumping out of amoving car); 25 May 1995 (attempted drowning); and 16 October 1996 (walking into moving vehicular traffic without caring if she was struck).  For the six years prior to her death the psychiatric history of the deceased reveals episodic depression, panic attacks and anxiety but no psychotic episodes or suicide attempts.  The deceased reported in mid 2001 that she no longer had suicidal ideation.

[36]  It is unnecessary, I think, to set out any more of the detail of the psychiatric history of the deceased reflected in the notes collected on the appellant's behalf.  In that regard, the effect of these notes is, I think, fairly summarised above.

[37]  The appellant also refers to notes which show him visiting the deceased when she was an inpatient.  It is said that this material would tend to balance the evidence led by the Crown of the abusive aspects of their relationship.  At this point it may be noted that the deceased's psychiatric history, which the appellant now says was erroneously not put into evidence at trial, contains some details which would be unlikely to advance his prospects of success before the jury.  For example, there is a note by Dr Park dated 8 July 2002.  That note is in the following terms:

"History:  I was informed today that Anita is deceased. I recall that at her last visit when she attended for an insurance medical that she told me she wished to separate from Phillip, but did not wish to leave the house, and wanted to still live in the house with him, but not in a marital relationship - she did not want him to have the house. She denied any fear of substantial harm, and was still urged to leave him. She will contact DSS re her financial situation if she feels compelled to leave …"

There is also a letter written by Dr Matthews dated 7 July 1999, which relevantly states:

"On the four occasions I saw here, [the deceased] presented as a pleasant lady who was erratic in her attendance she was not psychotic and in a euthymic mood state despite multiple social problems, not the least of which was a relationship with a husband who struck me as being significantly narcissistic (who I also understand is physically aggressive toward her on occasions)."

[38]  The content of the first note tends to confirm that the appellant was not in the process of moving out of the house.  That supports the evidence of Ms Casasola, the school teacher of the son of the appellant and the deceased, to the effect that the appellant was not willing to leave the house.  The perception of that unwillingness, as a source of friction and dispute between the deceased and the appellant, undermines the defence of accident advanced by the appellant.  The content of Dr Matthew's letter tends to support the evidence led by the Crown as to the appellant's character and the nature of his relationship with the appellant.  One could readily understand a forensic judgment by the appellant's lawyers at trial to avoid a course which would have resulted in this evidence coming before the jury.

[39]  The respondent urges that the decision by the appellant's former lawyers not to lead this evidence at trial is a reasonably explicable forensic decision which affords no basis for concluding that what happened at trial was a miscarriage of justice.  In this regard, the respondent relies upon the approach reflected in the decisions of the High Court in TKWJ v The Queen[13] and Nudd v The Queen.[14]  On the appellant's behalf, it is argued that, in a proceeding under s 672A of the Criminal Code, this approach is not applicable because "the whole case" is referred to this Court.  On the appellant's behalf, it is argued that the crucial question for present purposes is not whether or not a different tactical judgment should have been made; it is whether the deceased's psychiatric history was relevant and, therefore, admissible.

[40]  In my respectful opinion, it is not necessary to decide whether the nature of a proceeding under s 672A of the Criminal Code is such as to render the approach in TKWJ and Nudd inapplicable.  That is because I consider that the appellant's former lawyers were correct in their appreciation that the deceased's psychiatric history was irrelevant to the issues for determination at trial.  Accordingly, it was, in truth, inadmissible.  On this basis, it is unnecessary and inappropriate to refer to the further medical practitioners' notes of the deceased's psychiatric history with which the respondent sought to supplement the case referred to this Court to "balance" the selection relied on by the appellant.

The psychiatric history was irrelevant

[41] It may be accepted that, as the appellant submits, the deceased was "having considerable emotional, psychological and other difficulties about the breakdown of her relationship with the appellant".  The records of the deceased's psychiatric history do tend to suggest that she was, indeed, a very disturbed individual.  To the extent that her history might suggest that the deceased was a difficult person to live with, they might well have a tendency wrongly to prejudice the fair trial of the case in favour of the appellant:  a "difficult" victim may be thought a forensic advantage to an accused charged with murder.  On the other hand, this evidence might be apt to prejudice the jury against the appellant, both for the reasons which concerned the appellant's lawyers at trial, and because it might support the view that her behaviour might have given him a motive to wish to cause her serious harm, perhaps out of frustration and impatience.  It is not, in my view, necessary to pursue these speculations as to the balance of prejudice.

[42]  What the psychiatric history does not in any way suggest is a pattern of conduct involving bouts of physical violence to others, a proclivity towards frenzies of self-harm or any other predisposition which might render plausible any of the appellant's versions of the fatal incident.  The psychiatric history does include an occasion on 2 February 1995 when the deceased was said to have been "difficult to restrain by nursing staff, requiring security assistance"; an occasion on 16 September 1996 when the deceased made a "running charge from clinic … down the corridor barging 2 staff and dispensary door - (broke lock on door frame …)"; and an occasion on 16 October 1996 in which the deceased was "specialled by 2 nursing staff (due to physical strength and psychotic state)".  These events were contemporaneous with the deceased's documented suicide attempts.  They occurred nearly six years before the death of the deceased.  There is no suggestion that the deceased experienced an episode of psychosis at or about the time of her death.  For the sake of completeness, one should also mention that, on 10 April 2002, the deceased was charged with assault occasioning bodily harm over an incident with another woman at a playground after an altercation regarding their children.  But this was not said to be a psychotic incident.

[43]  The deceased's psychiatric history reveals that six years before her death she had suicidal tendencies; it does not in any way suggest that these tendencies were manifest at the time of her death or that she ever had a tendency to physical violence.

[44]  As to the appellant's versions of the fatal incident which were tendered at trial, where he asserted a violent assault upon himself by the deceased, his later versions resiled from that assertion; and, in any event, so far as the deceased's psychiatric history is concerned, there is no suggestion that she was prone to psychotic attacks upon others.

[45]  As to the appellant's later versions of the fatal incident in the two statements taken by his former solicitors, it could not seriously be suggested that they recount some form of suicide by the deceased, and no such suggestion was advanced on the appellant's behalf.  In relation to these later versions of the fatal incident, there is no pattern or predisposition emergent from the deceased's psychiatric history which would explain or render credible the appellant's implausible account of the "yo-yo" like behaviour described by the appellant in their repeatedly falling, hitting the deceased's head, standing up and repeating the process.

[46] For the sake of the argument presently under consideration, one may even ignore the difficulties for the appellant of his different versions of the circumstance of the death of the deceased.  For present purposes, one may assume that the final version would have been given by the appellant at trial.  The appellant's final account of the deceased's initial fall, and her repeated struggling and falling and injuring herself, draws no support from any propensity or pattern of conduct on the part of the deceased which can be discerned from the psychiatric history of the deceased detailed in the notes placed before this Court.

[47] It is important to note in this regard that, in mid-2005, the appellant's present solicitors sought expert opinion from Dr Bruce Westmore, a forensic psychiatrist, and from Associate Professor Johan Duflou, a forensic pathologist, in relation to the impact which the "evidence of the deceased's psychiatric condition (including medication she had been prescribed) may have had on the mechanisms associated with the fatal injuries sustained by her".  Neither of these experts suggested a link between the psychiatric condition, reflected in the deceased's psychiatric history and the "mechanisms" referred to in the appellant's final statement, and the fatal injuries sustained by her.  Neither suggested a relevant propensity on her part to engage in physical violence to others, or to engage in acts of self-battery, or self-strangulation, or even simply to lose her physical balance.

[48]  In Mallard v The Queen,[15] Gummow, Hayne, Callinan and Heydon JJ, speaking of the Western Australian analogue of s 672A(a) of the Criminal Code, described the function of a court of appeal to which a reference of the whole case is made as requiring "a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings …".

[49]  It may be said immediately, in the light of this passage from Mallard v The Queen, that the materials relied upon by the appellant to establish the psychiatric history of the deceased are not in form admissible as evidence: they are essentially a collection of comments said to have been made by medical practitioners involved in the treatment of the deceased over the years.  There was, however, no objection by the respondent to the reception of this material as evidence upon which this Court might determine these proceedings.

[50]  The point to be made for present purposes is that the various medical practitioners whose notes have been collected on the appellant's behalf do not in those notes address the question which Dr Westmore and Professor Duflou were asked to address.  This Court can only proceed on the footing that the medical practitioners whose notes about the deceased have been collected on the appellant's behalf do not suggest some predisposition on the part of the deceased at any time, either to engage in physically violent behaviour, whether towards others or to herself, or even simply to fall over repeatedly.  It simply could not be inferred from this material that the deceased, at the time of her death, was suffering from an outbreak of some condition which predisposed her to act violently towards others or towards herself or simply to fall over.

[51]  Accordingly, the notes of the deceased's psychiatric history were not relevant on the basis affirmed by the decision in Re Knowles.  The failure of Dr Westmore or Professor Duflou to suggest a connection between the psychiatric history of the deceased and the "mechanisms" associated with her death by the appellant serves to confirm that the view taken by the appellant's former lawyers in this regard was correct.

[52]  Insofar as the appellant also argues that the evidence of the deceased's psychiatric history would properly serve to "contextualise" the history of the appellant's abuse of the deceased, it is difficult to see that this argument means anything more than that the deceased was a difficult person whose behaviour might be very trying, and that the appellant, on some occasions in the past, acted humanely towards her.  That is not a basis on which this evidence could be said to be relevant as demonstrating, either the plausibility of any of the appellant's versions, or the possibility of an unintentional killing of the deceased.  It should also be noted that provocation was not, and is not, raised as an issue.

[53]  I am, therefore, of the opinion that the appellant's lawyers at trial were correct in their view that the deceased's psychiatric history was irrelevant.  Accordingly, the appellant's argument on this issue fails.

Loss of a fair chance of acquittal

[54]  If the evidence of the deceased's psychiatric history is regarded as inadmissible because it is irrelevant to issues in the case then, consistently with the appellant's argument, it cannot be said that a miscarriage of justice was involved in the appellant's failure to give evidence of his version of the fatal incident.  But even if that evidence was admissible, it is not possible to suppose that it might have led to a verdict of acquittal.  Accordingly, the appellant was not denied a fair chance of acquittal at his trial.

[55]  On the appellant's behalf, it was accepted that this Court should have regard to all the versions of the fatal incident given by the appellant in deciding whether the deceased's psychiatric history and his own evidence together afford him a fair chance of acquittal.  Even if the collected practitioners' notes were put into evidence and the appellant gave evidence himself, the various versions of the fatal incident given by the appellant, when viewed together, afford no reasonably arguable basis for a reasonable doubt as to the guilt of the appellant.  As Hayne J said in TKWJ v The Queen:[16] "[t]he ultimate question will be whether the jury would have been likely to entertain a reasonable doubt about guilt if all the evidence had been before it."  A jury could not ignore the inconsistencies and the "falsehoods" along the way towards the appellant's final version of the fatal incident, or the implausibility of that version of the fatal incident which emerged from the appellant in his second statement to his former lawyers.  This was the account of the deceased falling and banging her head and getting up to renew the struggle with a passive and, indeed, sympathetic appellant.  If one asks whether there is a "significant possibility that a reasonable jury" would have acquitted on the basis of this evidence,[17] the answer must, I think, be in the negative.

[56]  The appellant's versions of the fatal incident are so divergent in important particulars that they cannot afford a coherent explanation of her death.  Common to each version, however, is a self-serving determination to avoid responsibility which produces an increasingly elaborate account of the fatal incident.  The appellant's final version of the fatal incident, considered alone, does not provide a plausible account of the fatal incident, especially having regard to the evidence of the nature and extent of the deceased's injuries.  This final version would be comical if the truth which it seeks to obfuscate were not so tragic.

[57]  The appellant's final version of the fatal incident would have been sorely tested by cross-examination about his different earlier versions including the version of 16 January 2003.  The absence of a plausible account, in terms of the jury's ordinary experience of human movements, to account for the deceased's first fall in which she was said to have hit her head, was already apparent on the face of the appellant's final version of the fatal incident.  The contrivance involved in the construction of that version would have been painfully emphasised in cross-examination by reference to the appellant's earlier inconsistent accounts.

[58]  In my respectful opinion, it would test the credulity of the appellant's fellow citizens comprising the jury too far to suggest that they could accept as a possible explanation for the death of the deceased the appellant's implausible and contrived explanation of the battering which led to her death.  The jury would have been required to consider the appellant's assertion that the fatal incident began because he tried to stop the deceased driving a car because she was obviously drunk in the light of the uncontested evidence that showed that her blood alcohol concentration at the time of her death was nil.  The jury would also have been confronted by the disparity between the appellant's original account, in which the deceased attacked the appellant and thus began a struggle in the course of which the two of them fell, and his final account in which the deceased fell for the first time by herself for no reason apart from a loss of balance on her part.  The jury could reasonably accept one or other of those accounts only if it was supported by other evidence independent of the appellant who was the only source of each of these quite different accounts of the fatal incident.  There was no such evidence.

[59]  In the absence of an acceptable account of the fatal incident from the appellant, the jury would look at the evidence of the many injuries suffered by the deceased and would conclude that, as a matter of ordinary human experience, they could only have been inflicted deliberately by another person.  On the evidence, the appellant was the only person who could have inflicted this battery on the deceased.  Even if Dr Naylor's "interpretation" of the fracture of the thyroid cartilage of the voice box is regarded as subject to reasonable doubt, it is not possible to accept, as a reasonable hypothesis, that the totality of the injuries described by Dr Naylor occurred in the manner described in any of the appellant's versions of the fatal incident, and particularly the final version.

[60]  In summary on this issue, the overwhelming inference from the circumstances of the death of the deceased which are not open to doubt is that her death resulted from a battering deliberately administered by the appellant, with the intention of causing her death or grievous bodily harm.

Conclusion and order

[61]  In my respectful opinion, no miscarriage of justice occurred at the trial of the appellant.  The appeal should be dismissed.

[62]  HOLMES JA:  I have read the judgments of the President and of Keane JA.  I agree with their reasons and conclusion.