R v Thomas[2020] QCA 236

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 22 March 2019 a jury found the appellant guilty of murder.  The victim was his some-time partner, who was found dead, lying on her back on the floor, naked from the waist down.  She had injuries to her neck consistent with strangulation.  She also had extensive rib fractures that were consistent with attempts at resuscitation.  Other rib fractures had been independently inflicted and were unlikely to have been caused by resuscitation attempts.
2. [2]
   The appellant challenges his conviction on a number of grounds which can be summarised as follows:

   1. (a)
      Ground 1: the trial judge erred in law by admitting exhibit 41, which contained six inadmissible photographs, causing a miscarriage of justice;
   2. (b)
      Ground 2: the trial judge failed to direct the jury as to how exhibit 41 could be used, thus creating the danger of impermissible reasoning by the jury;
   3. (c)
      Ground 3: the trial judge failed to direct in relation to motive;
   4. (d)
      Ground 4: the verdict was unreasonable and cannot be supported by the evidence;
   5. (e)
      Ground 5: the trial judge failed to leave the partial defence of provocation;
   6. (f)
      Ground 6: the trial judge’s failure to direct the jury in relation to opinion evidence may have caused a miscarriage of justice; and
   7. (g)
      Ground 7: a collation of faults caused the trial to miscarry.
3. [3]
   The appellant appeared on his own behalf before this Court and in the course of his oral submissions expanded upon a detailed written outline covering all grounds.
4. [4]
   The appellant also applied to adduce fresh evidence.  I shall deal with that application after considering the grounds of appeal.

Essential facts

5. [5]
   At the start of the trial, the appellant pleaded guilty to manslaughter (though that plea was not accepted by the Crown).^[1]  As defence counsel told the learned trial judge,^[2] the only real issue in the trial was whether the appellant had the requisite intent for murder.  In what follows, I will attempt to summarise the evidence at the trial, focussing on that relevant to the issue of intention.
6. [6]
   On 24 October 2015 police attended a Greenslopes house where the deceased^[3] lived.  She was discovered lying on her back, wearing a jersey.  She was naked from the waist down.  Next to her on the floor was a pedestal fan.  There was hair on the floor near her head and it was noted that she had bruising to her neck.^[4]  The hair discovered near Jane’s head was not indicative of natural shedding as the hairs were still in an active stage of growth.  In order for them to have been removed from Jane’s head force had to be applied.^[5]  It could not be determined whether that had occurred before or shortly after Jane’s death.^[6]
7. [7]
   Officers from the Scenes of Crime unit attended at the house in order to take photographs, collect items and samples for forensic testing, and collect evidence.^[7]
8. [8]
   During the police investigation Jane’s mobile phone was discovered under the side of the bed in the bedroom area.^[8]
9. [9]
   Across the road from Jane’s house was an industrial bin in which police found items that belonged to Jane, including her shorts and underwear.^[9]  Those items were photographed and taken for testing.  A number of DNA samples were obtained from those items for later analysis.  Analysis of fingerprints found on the items in the industrial bin showed a connection to the appellant.^[10]
10. [10]
    Various household items, including empty cans of alcoholic drinks, cans of soft drinks, and some medication in the name of Jane,^[11] were also located and taken for testing.  Some of those items contained material which revealed DNA analysis consistent with that of Jane and the appellant.
11. [11]
    Jane’s ex-husband, Mr Zub, gave evidence that Jane had a history of excessive drinking and experienced depression.  They separated in late 2010 or 2011 and some time later authorities intervened, taking their children away from Jane to reside with Mr Zub.^[12]  He was asked to identify six photographs which became exhibit 41.  The photographs were dated 29 January 2014 and Mr Zub said he could recall Jane having those injuries.^[13]  The prosecutor stated that she did not intend to ask Mr Zub any questions concerning the photographs or the injuries they revealed, beyond asking him to identify the photographs and that Jane sustained the injuries.^[14]
12. [12]
    In cross-examination Mr Zub described Jane’s excessive drinking which had an impact on her behaviour and reliability.^[15]  In relation to exhibit 41, he explained that he did not know how the injuries happened, but the photographs arose from an incident where he had been driving past Jane’s residence and saw her quite intoxicated and staggering towards a taxi.^[16]  He said she had stumbled down some stairs and he did not cause the injuries, but the photographs were presented as evidence on a later domestic violence application.^[17]
13. [13]
    An ex-partner of Jane, Mr Sullivan, gave evidence that he met her in about 2013 and they had lived together as partners for about a year.  He described her drinking and an attempt to engage in rehabilitation at a detox centre.^[18]  About three or four weeks before her death Jane went to stay with Mr Sullivan, telling him that she needed to get away.  She did not bring any personal items with her such as clothes or toiletries.  She stayed about a week.^[19]
14. [14]
    Another former partner, Mr Beikoff, gave evidence that he met Jane at a rehabilitation clinic at about the end of 2014.  Subsequently, they commenced a relationship.  He said there were times when Jane gave him her bankcard so that he could purchase things for her such as alcohol or cigarettes.  He did not keep the bank card, but gave it back.^[20]
15. [15]
    Mr Zub gave evidence that his daughter’s FaceTime records showed that Jane tried to contact her daughter about four times on 22 October 2015, and the daughter tried to call Jane back on 23 October, unsuccessfully.^[21]  A friend of Jane, Ms Malone, also unsuccessfully attempted to call Jane on 22 October.  She tried again the following day, again without success.^[22]
16. [16]
    An extensive record of the phone calls and texts between the appellant and Jane was tendered.^[23]  The record commenced on 9 May 2015, at least five months before Jane’s death.  They revealed a somewhat volatile relationship with frequent insults being directed from the appellant to Jane.  On 22 October 2015 the following messages and calls were exchanged between the appellant and Jane:

    1. (a)
       at 6.50 pm Jane texted, “I’m home now”;^[24] 
    2. (b)
       at 7.44 pm Jane asked, “Are you coming or not?”, following that with, “It’s okay if you can’t make it but I would just like to know”;^[25] 
    3. (c)
       Jane then called the appellant’s phone several times over the next few minutes, obviously unsuccessfully because she sent a message at 7.49 pm saying, “Okay – is this payback?”;
    4. (d)
       at 7.51 pm she texted, “Don’t expect me to talk to you again then”;^[26] and
    5. (e)
       the appellant then called Jane at 8.07 pm, though it was a missed call.
17. [17]
    The records do not show any further use of her phone by Jane.
18. [18]
    Jane’s aunt, Ms Welke, gave evidence (by phone) that Jane developed an alcohol addiction about seven years prior to her death.^[27]  In cross-examination she was asked whether in the lead up to Jane’s death Jane was intoxicated when Ms Welke spoke to her.  She replied “Not all the time, no, I don’t think so, no”, and then added:^[28]

“And I’ve got to say this – you’re the defence barrister, I presume, and I might be out of line saying this, but whether she was an alcoholic or not didn’t – she didn’t deserve … what she got.”

19. [19]
    Just before she finished that response the trial judge intervened to tell her not to offer comments.
20. [20]
    The appellant’s housemate, Ms McPartland, gave evidence that she saw the appellant at about 6.30 am on Friday, 23 October 2015.^[29]  After she returned home later that day she noted that the appellant had done some shopping and filled the freezer with groceries.^[30]  The following day, Saturday, 24 October, she saw the appellant at about 8.30 in the evening.  She did not see him the next day.^[31]
21. [21]
    Two friends of Jane gave evidence that confirmed that she let others use the PIN number for her bank card.^[32]
22. [22]
    Phone records were produced in evidence.  They revealed that on the morning of 23 October 2015 the landline at Jane’s house was used seven times between 10.40 am and 11.40 am, in each case calling Jane’s own mobile telephone number.^[33]  The Crown’s case at the trial was that Jane had been murdered at that point in time, and that the phone calls were an attempt by the appellant to locate Jane’s phone.
23. [23]
    Detective Dwyer also produced CCTV footage, as well as Jane’s bank account, which revealed the withdrawal of $1,000 from an ATM at Greenslopes at about 8.00 am on Friday, 23 October 2015.^[34]  The bank records revealed further withdrawals, in each case $1,000, on 23 and 25 October 2015.^[35]
24. [24]
    Telecommunication records produced at the trial showed use of Jane’s laptop and messages sent to Jane on Saturday, 24 October 2015:^[36]

    1. (a)
       between 5.03 am and 5.08 am Jane’s laptop was used to access websites connected with Singapore Air;
    2. (b)
       at 10.40 am the appellant sent a text: “u didn’t even say now don’t be like that phone was flat are u home”;
    3. (c)
       at 10.41 am the appellant sent: “helloooooo”;
    4. (d)
       at 10.57 am the appellant sent: “wasting my time can’t u awnser [sic]”; and
    5. (e)
       at 7.42 pm the appellant sent: “helloooooooo”.
25. [25]
    The Crown case at trial was that those messages were by the appellant to pretend that he did not know that Jane was dead at that time.
26. [26]
    Evidence was given at the trial of the appellant arranging to purchase a flight ticket to the Philippines.^[37]  Ms Williams worked with Flight Centre and the appellant came to her office on Saturday, 24 October 2015, saying that he intended to travel in the next week or two.  She booked him a flight to leave Brisbane on 4 November 2015, returning on 4 December 2015.  The appellant paid the price of just over $1,000 in cash.
27. [27]
    Evidence was given by Mr Ioannides, a friend of the appellant.  He said that he knew the appellant for about four years by 2015, and also knew that the appellant had a wife or girlfriend in the Philippines and often travelled there.^[38]  He said that he saw the appellant on Friday, 23 October 2015 at which time the appellant paid him $300 which he owed.  He saw him again on Sunday, 25 October at about 7.00 am, when the appellant arrived at his door with a travel bag on wheels and a backpack.^[39]  The appellant remained there, drinking with Mr Ioannides, until guests started to arrive for a barbeque.  The appellant said that he wanted to talk to Mr Ioannides about something and eventually they spoke on the balcony.^[40]  Mr Ioannides asked him what was going on and the appellant led him out into the car park.  Then followed this account:^[41]

“Yes?---Okay.  We went out into the carpark, and – and then Rob told me his story then.

What was the story that Rob told you then?---He went to see a woman.  He went to see a woman, and that she humiliated him.  Rob told me that she – he’d never been so humiliated in all his life, “So I grabbed her and I squeezed”. …

Was he just using his words?---No, he actually had a little action there for that one.

Show us the action?---“I grabbed her and I squeezed”.

You’ve got your two hands in front of you?---Yeah.

Is that how he had the hands, the two hands in front of – in front of himself?---Yeah.

As he said those words?---Yeah.

“I squeezed”?---Yeah.

Yes.  Did he say anything else about the context of her humiliating him?---No.

Did he say to you who this woman was?---No.

Did he say to you where it had happened?---No.

Did you ask him any further questions?---I asked him if she was okay.

Yes?---And he said, “No, she’s dead.  She humiliated me”.  I said, “Holy shit, Rob”.  That was our conversation.

Did he say anything else, apart from that she was dead?---“She humiliated me”.  That was the third reference to that.”

28. [28]
    In cross-examination Mr Ioannides described the appellant as being subdued during the conversation.  He said that the appellant did not tell him for what period of time he had “squeezed” the woman, and denied that he had been told anything about “going down on her”.^[42]  He confirmed that at the time the appellant made the second mention of being humiliated, it was “fairly graphic”, and again said that the appellant demonstrated using his two hands.^[43]
29. [29]
    After the conversation the appellant remained at Mr Ioannides’ house.  During that time police came to the door looking for him.  Mr Ioannides knew that the appellant was sitting in a chair in his house, but did not tell the police where he was.  The police asked him to call the appellant’s phone which he did, but the phone was dead.  Shortly after that the appellant left, but left his suitcase behind, asking Mr Ioannides if he could send it to his wife in the Philippines.^[44]
30. [30]
    In light of the appellant’s concession on appeal that he caused the death of Jane, it is not necessary to review the evidence of the appellant’s injuries or the DNA evidence that linked the appellant to Jane’s body.^[45]  Nor is it necessary to review the police evidence showing searches of the appellant’s property and seizure of various items.^[46]
31. [31]
    Dr Ong, a forensic pathologist, gave evidence of the injuries to Jane, and the cause of death.  The essential features of that evidence were as follows:

    1. (a)
       Jane weighed 47 kilograms and was 167 centimetres tall;
    2. (b)
       an external examination of Jane revealed the presence of petechial haemorrhages, which are pinpoint haemorrhages on the lining on the inside of the eye; such haemorrhages are caused by the application of high pressure to the small vessels in the eye causing them to rupture;^[47]
    3. (c)
       there were a number of more minor injuries including a black eye on the left and a 2 cm abrasion to the back of the right ear;
    4. (d)
       there was a bruise to the tip of the chin which extended from the back of the ears to the underside of the chin, through to the inside of the lining of the mouth; Dr Ong described it as an extensive bruise and consistent with strangulation;^[48]
    5. (e)
       there was a large bruise occupying a big area on the front of the neck consistent with the application of at least moderate force by an object or fingers or hands;^[49]
    6. (f)
       there were several bruises on the back of the neck which were subcutaneous; they were at the junction of the neck and chest and then higher up there were three smaller bruises each about one centimetre long, arranged vertically; the bruises to the back of the neck were distinct bruises, independent of the injuries on the front of the neck;^[50] those injuries were consistent with the application of fingers to the neck; these injuries were independent of the injuries to the front of the neck, and could have been caused by the back of the neck being forced against an object by the pressure applied to the front of the neck, or by fingers being on the front and the back;^[51]
    7. (g)
       internal examination revealed that the injuries to the neck extended deep inside to the base of the tongue;^[52] the likely cause was the application of pressure from fingers involving moderate force;^[53] they were recently inflicted;^[54]
    8. (h)
       Dr Ong also found extensive haemorrhaging to the sternomastoid muscle, which is the muscle going from the root of the ear to the collar bone;^[55] that is one of the strongest muscles of the neck and would require mild to moderate force in order to produce the haemorrhaging; those muscles showed fairly extensive haemorrhages, going deep into the muscles and to the thyroid gland; on the left the haemorrhaging continued to the corner of the lower jaw, explicable by more force being applied to the left side than the other;^[56]
    9. (i)
       Dr Ong found a fracture to part of the thyroid cartilage, commonly associated with pressure to the neck;^[57]
    10. (j)
        the carotid sheath (which encloses the carotid arteries) was surrounded by haemorrhaging which, according to Dr Ong, can occur towards the end of a struggle or strangulation;^[58]
    11. (k)
        a CT scan revealed a second fracture to the cricoid cartilage on the right of the neck consistent with the application of force to the upper portion of the neck rather than the lower portion;^[59]
    12. (l)
        examination of the front of the chest revealed extensive fractures to the ribs; on the right front, ribs two to seven were involved, and ribs five, seven and eight on the right posterior side;^[60] on the left front, ribs one to six were fractured;^[61]  the force required to cause those fractures was severe, consistent with stomping, blunt impact, or resuscitation;^[62]
    13. (m)
        the posterior fractures were inflicted differently from those on the front;^[63] it was only rarely reported that posterior fractures were the result of resuscitation, therefore they were only “possibly” consistent with CPR; the other cause was blunt trauma;^[64]
    14. (n)
        all the rib fractures were recent; Dr Ong could not distinguish between the application of blunt force trauma or resuscitation in respect of the front rib injuries;^[65]
    15. (o)
        he gave the opinion that the minimal haemorrhaging suggested they occurred either at around the time of death or after death;^[66]
    16. (p)
        Dr Ong’s opinion was that the cause of death was due to pressure on the neck such as manual strangulation or throttling using fingers, or alternatively an arm lock using part of the arm to compress; there were signs of asphyxia;^[67] and
    17. (q)
        in cross-examination Dr Ong said that the neck bruising showed that the pressure was not limited to one area, but “It’s probably … the fingers have moved around”.^[68]

Grounds 1 and 2 – exhibit 41 photographs

32. [32]
    These two grounds concern the admission into evidence of exhibit 41, which contains six photographs of Jane with bruising.  The appellant’s contention was that the photographs did not depict any event relevant to the issue in the trial, as they were of bruising to Jane in November 2014.  It was contended that the photographs were inadmissible and highly prejudicial, so much so that their prejudicial effect outweighed any probative value they had.  The appellant also made the point that his own counsel’s failure to object to the admission of those photographs was not fatal to the ground of appeal, and did not prevent a miscarriage of justice.
33. [33]
    Further, ground 2 concerned the failure of the learned trial judge to deal with exhibit 41 in the summing up.  That was compounded, it was said, by the failure of the appellant’s counsel to seek directions designed to exclude any reliance on similar facts or propensity.  That failure to seek a redirection was not an answer to the absence of an appropriate direction in the summing up, and did not avoid a miscarriage of justice.
34. [34]
    During the course of the hearing before this Court, counsel for the Crown^[69] explained that exhibit 41 was tendered at the request of the appellant’s trial counsel.  The appellant denied any knowledge of that, as a consequence of which the Court asked for an affidavit from the appellant’s trial counsel to be obtained, dealing with that question.  That affidavit has been received and makes these points:

    1. (a)
       before and during the trial the appellant’s counsel liaised with the prosecutor for certain evidence to be led by the Crown;
    2. (b)
       the appellant’s counsel sought for exhibit 41 to be tendered in the Crown case, because he had a particular forensic purpose; and
    3. (c)
       however, during the trial the learned trial judge “closed down the purpose before my closing address”, as a result of which the appellant’s counsel did not address on exhibit 41.
35. [35]
    It is also true to say that exhibit 41 was not referred to in either of the addresses, nor in the summing up.  When one considers the content and what was said about exhibit 41 that is not surprising.  The photographs were tendered by the prosecutor at the request of the defence, and on the express basis that the prosecutor did not wish to ask any questions about the injuries or the photographs.  They were identified by an ex-partner of Jane, Mr Zub, who said he had seen those injuries and they related to a period in November 2014.  In cross-examination he denied that he was responsible for them and gave evidence that Jane had stumbled down some stairs at about that time.  Thus, as the evidence stood the injuries depicted in the photographs had no logical connection with the appellant at all.
36. [36]
    The appellant’s counsel asked the Crown prosecutor to tender the photographs, because he had a particular forensic purpose in mind.  The fact that that purpose was negated in the course of the trial does not mean that the evidence was prejudicial to the appellant.  No one addressed exhibit 41 after the evidence of Mr Zub, and it seems to have disappeared as an issue.  I am unable to conclude that those pictures had any effect on the jury in its deliberations.
37. [37]
    After the hearing of the appeal the appellant was given leave to make a further submission concerning this point and the respondent replied.  The additional submission took the contention no further.  It was suggested that the affidavit of defence counsel shows that only one photograph was sought to be tendered by the prosecutor at the request of defence counsel.  The affidavit makes it clear that exhibit 41 was the subject of the request.  The reference to a “photograph”^[70] may have been to one of the six in that exhibit, but in any event does not detract from what the affidavit expressly states.
38. [38]
    These grounds fail.

Ground 3 – failure to direct on motive

39. [39]
    This ground concerned the request by the appellant’s counsel during the trial that the trial judge give a direction concerned with motive.  The passage of evidence in which that was discussed was:^[71]

“Mr Lynch:  Okay.  The other thing – the only other matter that I wanted to raise, which was touched upon the other day, about motive and your Honour had indicated there was no motive.

His Honour:  Yes.

Mr Lynch:  I just wonder whether your Honour might give the second part of that direction that’s in the bench book at 49.1 about motive that positive evidence that the accused lacked a motive is clearly a matter to be taken into account by a jury in a circumstantial case.

…

His Honour:  … Yes.  I think I should say that.  Thanks Mr Lynch.

…

His Honour:  Do you agree with that Ms Balic?

Ms Balic:  I have no issues with that.

His Honour:  All right.  And I think that should really logically come – it logically should come above the heading Physical Facts Relevant to Inference.  In other words, after I return to circumstantial evidence and say, well, this case is about these sorts of circumstantial evidence, then I should say, well, you know – say, in effect, motive is relevant in some cases.  There’s not any suggestion of motive in this case, but a lack of motive is relevant because and then use that text.  Are you happy with that form?

Mr Lynch:  Yes.”

40. [40]
    The appellant’s contention was that no such direction was given.  The submissions went on to urge that the failure to give that direction gave rise to a miscarriage of justice.
41. [41]
    The appellant’s contention is mistaken.  What was sought by the appellant’s counsel, and agreed by the trial judge, was a direction that “positive evidence that the accused lacked a motive is clearly a matter to be taken into account by a jury in a circumstantial case”.  During the course of the summing up the learned trial judge said:^[72]

“The point I made earlier that I’d return to the subject matter of circumstantial evidence.  When you’re answering question 2, you must decide whether the defendant had or did not have the required intention, as a matter of inference from circumstantial evidence.  And in this case, the categories of circumstantial evidence that are relevant to question 2 are, first, the physical findings that you make as to the circumstances of the death, and second, the findings that you make as to the conduct of the defendant that happened after the death that go to his intention, as you see it.  Any positive evidence that the defendant lacked a motive to cause [Jane’s] death or to do her grievous bodily harm is also relevant.  It would be another circumstance to be taken into account in his favour in a case based on circumstantial evidence.”

42. [42]
    That part of the direction which is highlighted above is what defence counsel sought, and his Honour proposed to give.  There is, therefore, no merit in this ground.

Ground 5 – failure to leave provocation

43. [43]
    This ground contends that the defence of provocation should have been left to the jury.  The appellant was referring to the defence available under s 304 of the Criminal Code 1899 (Qld) which applies to an unlawful killing where the accused “does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool”.
44. [44]
    This ground is without merit for the reasons set out below.
45. [45]
    Firstly, the appellant’s trial counsel expressly disavowed any reliance upon provocation, making it plain to the learned trial judge that the only live issue was intention.^[73]
46. [46]
    Secondly, there was no evidence of acts of provocation which might have led to a loss of self-control.  Mr Ioannides’ evidence was that the appellant told him several times that Jane had humiliated him and he had never been so humiliated in all his life.  Nothing further was said as to the nature of the humiliation, or the circumstances in which it occurred.  Mr Ioannides’ account of what the appellant said included the sentence “So I grabbed her and I squeezed”.  On several other occasions in his evidence the word “so” was not included, and on one occasion the word “and” was substituted.^[74]  Thus, the evidence did not rise so far as to show a particular link between the alleged humiliation and the strangulation.
47. [47]
    Thirdly, there is no evidentiary basis to suggest that the provocation would have caused a loss of control in a reasonable person.
48. [48]
    In my view, the appellant cannot establish that there was a miscarriage of justice by the failure to leave the defence of provocation.  This ground fails.

Ground 6 – opinion of Ms Welke

49. [49]
    The appellant’s contentions under this ground related to the comment by Ms Welke under cross-examination where she said, “I might be out of line saying this, but whether she was an alcoholic or not … she didn’t deserve … what she got.”
50. [50]
    The appellant contended that the comment may have introduced the jury to factors of prejudice or emotion, or influenced its decision.  It was submitted that the trial judge had a duty to direct the jury to disregard those claims in order to avoid a miscarriage of justice.
51. [51]
    I do not consider that there is any merit in this ground.  Given that Ms Welke was Jane’s aunt and had known Jane all her life, the jury would not have been concerned that she might have made a personal comment to the effect that just because she was an alcoholic she did not deserve to die.  It is extremely difficult to see that as giving rise to any prejudicial influence over the jury.
52. [52]
    Further, no direction was sought by the appellant’s counsel in relation to that comment.  It was rightly left to disappear as being the somewhat emotive and defensive reaction of a family member.  To have sought a specific direction on it would have run the risk of merely emphasising something that was inconsequential.
53. [53]
    This ground fails.

Ground 7 – an aggregation of faults

54. [54]
    On this ground the appellant raised a number of matters, suggesting that they caused a miscarriage of justice.  Those matters included:

    1. (a)
       the consistent failure by defence counsel to raise an objection to the many inconsistencies in the prosecution’s case; an example that was given was the failure to challenge the reliability of police statements, particularly in relation to Mr Ioannides and Ms McPartland;
    2. (b)
       the failure of defence counsel to object to what was said in address by the prosecutor, namely that the Crown’s case was that the appellant called Jane’s telephone from her landline because he was trying to locate the mobile phone; in this respect defence counsel made no objection notwithstanding that there was evidence of a latent fingerprint on the face of the landline; and
    3. (c)
       the failures of defence counsel meant that the trial did not meet the minimum standards of fairness; the incompetence of defence counsel “was so egregious, frequent and obvious as to have denied the appellant a fair trial”.
55. [55]
    There are considerable difficulties confronting this ground.  I will attempt to enumerate them below.
56. [56]
    Firstly, defence counsel made a decision as to which witnesses he wished to cross-examine, and on what basis.  At that time he would have had all the police statements.  That he might not have cross-examined in the way the appellant (a non-lawyer) might have done, does not mean that the cross-examinations were inadequate.  Mr Ioannides was cross-examined about the state of sobriety of both himself and the appellant on the day of the conversation, as well as the accuracy of his account of the conversation itself.  He was also cross-examined to establish that he did not see any injuries to the appellant’s face or arms.  Defence counsel would have been reluctant to attack the unreliability of the statement when compared to his oral evidence, unless there were compelling grounds to do so.  That he did not, suggests that the oral evidence did not depart substantially from the statement.
57. [57]
    Secondly, a similar state of affairs applies to the statement of Ms McPartland.  Her evidence was confined as to occasions when she saw the appellant after 23 October 2015.  She was cross-examined to establish what sort of cigarettes the appellant smoked, as to whether she could be mistaken about when she saw the appellant, as to the fact that he would repay any money he borrowed, and also to establish that she did not see any injuries on him.  In the circumstances it is very difficult to see what benefit might have flowed from attacking the unreliability of her evidence based on her statement.
58. [58]
    Thirdly, there was evidence of a fingerprint on the landline, but the forensic analysis did not establish to whom it belonged.  The fact that there was such a fingerprint does not mean that the appellant did not use the landline, as the prosecutor suggested.
59. [59]
    After the hearing of the appeal the appellant was given leave to make a further submission concerning this point and the respondent replied.  The additional submission took the contention no further.  The absence of proof as to the identity of the fingerprint found on the handset did not mean that the appellant did not use it, and it was not impermissible for the prosecutor to suggest that possibility, nor did it give rise to a miscarriage of justice.
60. [60]
    Fourthly, the circumstances surrounding exhibit 41 have been dealt with above in relation to grounds 1 and 2.
61. [61]
    Fifthly, a perusal of the transcript does not reveal incompetence on the part of defence counsel.  One must bear in mind that the issue at the trial was that of the intention of the appellant, and specifically whether it could be found that he had the intention to kill or cause grievous bodily harm.  That being the issue, defence counsel pursued what avenues might have been helpful to that contest.
62. [62]
    I do not accept that it has been demonstrated that counsel’s conduct denied the appellant a fair trial.  This ground fails.

Ground 4 – unreasonable verdict

63. [63]
    In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[75] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
64. [64]
    The role of the appellate court was recently restated in Pell v The Queen:^[76]

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

65. [65]
    The High Court restated the pre-eminence of the jury in R v Baden-Clay.^[77]  As summarised by this Court recently in R v Sun,^[78] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,^[79] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”^[80]
66. [66]
    At the commencement of the trial when the appellant was arraigned, he pleaded not guilty to murder, but guilty to manslaughter.^[81]  The Crown did not accept that plea.  However, for that reason, as was emphasised by the appellant’s trial counsel in the course of exchanges with the learned trial judge, the only issue in the case was that of intention.  It is the quality of the evidence concerning that issue to which attention must be paid.
67. [67]
    Foremost in that consideration is the evidence of the pathologist, Dr Ong.  His evidence as to the nature of the injuries and the cause of death has been summarised in paragraph [31] above.  Salient features are:

    1. (a)
       the haemorrhages to the eyes were consistent with the application of pressure, obstructing the flow of blood from the head back to the heart;
    2. (b)
       there was extensive bruising from the area of the chin through to the inside of the lining of the mouth, consistent with strangulation;
    3. (c)
       the large area of bruising to the front of the neck was consistent with pressure applied by fingers or hands, and a degree of moderate force;
    4. (d)
       the bruising to the neck included deep bruising inside the muscles through to the tongue; to access that area required pressure from fingers exercising moderate force; the injuries on the neck indicated that pressure had been applied;
    5. (e)
       the pattern of bruising to the deep strap muscles of the neck and into the jaw showed that more force had been applied on the left side than on the right;
    6. (f)
       the application of the force to the neck had caused two fractures, consistent with the application of pressure to the neck;
    7. (g)
       the sparse haemorrhages to the carotid sheath on both sides of the neck indicated that those injuries occurred towards the end of a struggle or strangulation;
    8. (h)
       there were extensive fractures to the ribs on the front right of the body, caused by severe force, but consistent with resuscitation attempts; Dr Ong could not exclude resuscitation as being the cause of that blunt force trauma; however, the conclusion was that the rib fractures on the posterior side were only “possibly” caused by resuscitation, but the other cause was blunt trauma;
    9. (i)
       the overall finding was that death was caused due to pressure on the neck by manual strangulation or throttling, using fingers, or alternatively through an arm lock;
    10. (j)
        in Dr Ong’s opinion, the bruising indicated that the pressure was not limited to one area and was probably caused by fingers moving around; and
    11. (k)
        the application of the force to the neck would have been for a minimum of 20 seconds.
68. [68]
    The second category of evidence was that from Mr Ioannides as to what the appellant described.  In short, it was that he had been humiliated and had “grabbed her and … squeezed”.  That description was accompanied by the appellant demonstrating the use of two hands.  The significance of that demonstration was that Dr Ong’s findings were consistent with the application of two hands, for some time, and with force.  Further, there was nothing in what the appellant said to Mr Ioannides that suggested lack of intent to do what he did, such as “I didn’t mean it to go so far”.
69. [69]
    Given that the appellant accepted that he had caused Jane’s death, the evidence referred to above provided an ample foundation for the jury to conclude that when he “squeezed” Jane, he did so with the intention to kill or cause grievous bodily harm.  The pressure he applied was to her neck, and with two hands.  The level of force necessary, the length of time it was applied for, the fact that the fingers moved around and the fractures to the neck all provide a foundation to infer the requisite intent.
70. [70]
    In my view, it was open to the jury to conclude that the appellant strangled Jane in a way which was deliberate and with the intention to (at least) cause grievous bodily harm.
71. [71]
    In my view, a review of the whole of the evidence demonstrates that it was open to the jury to be satisfied beyond reasonable doubt of the defendant’s guilt of murder.  This ground therefore fails.

Application to adduce new evidence

72. [72]
    The appellant applied to adduce fresh evidence.  The categories were as follows:

    1. (a)
       the transcript of the committal proceedings;
    2. (b)
       the post-mortem report by Dr Ong;
    3. (c)
       client instructions concerning the photographs and exhibit 41;
    4. (d)
       the original police statements from Sergeant Robinson, Sergeant Leitch, Ms McPartland and Mr Ioannides; and
    5. (e)
       the incident log of domestic violence history concerning Jane, between 2013 and 2015.
73. [73]
    All but the last item constitutes evidence that would have been in the hands of defence counsel at the time of the trial.  It is not fresh evidence and should not be permitted to be adduced.
74. [74]
    Given the appellant’s concession that he caused Jane’s death, and that the only issue was intention, the incident log concerning domestic violence issues between 2013 and 2015 is irrelevant, even if it were otherwise admissible.
75. [75]
    The statements of Sergeant Robinson and Sergeant Leitch go to the question of a fingerprint on the phone cradle in Jane’s house.  The appellant evidently thought that they would assist him on that aspect of ground 7.  He was mistaken.  The statements establish that the fingerprint was not one which could be identified.  No doubt, that is why those witnesses were not called.
76. [76]
    The application to adduce further evidence should be refused.

Conclusion

77. [77]
    As all grounds have failed, the appeal should be dismissed.
78. [78]
    McMURDO JA:  I agree with Morrison JA.
79. [79]
    NORTH J:  I have read the reasons for judgment of Morrison JA.  I agree with his Honour.  The appeal should be dismissed.