R v Rimene[2023] QSC 123

SUPREME COURT OF QUEENSLAND

1. [1]
   At the close of the prosecution case, the defendant submitted that he had no case to answer on the charge of murder or the alternative verdict of manslaughter on two bases:

   1. (a)
      with respect to causation, there are hypotheses available that are consistent with innocence, such that the Crown has not discharged its onus; and/or

   1. (a)
      that the Crown cannot negative the defence of dwelling.
2. [2]
   The Crown submits that there is evidence in relation to both the defence and causation upon which the defendant could be lawfully convicted.
3. [3]
   Where a no case submission is made the question of law to be decided is whether on the evidence as it stands the defendant could lawfully be convicted. If the answer is yes, the case must be left to the jury. If not, it is the duty of the trial judge to direct a verdict of acquittal.^[1]
4. [4]
   The principles which apply for a no case submission were authoritatively stated by the High Court in Doney v The Queen^[2] and conveniently reiterated by Burns J in R v Goldsworthy, Goldsworthy v Hill:^[3]

[5]  When a no case submission is made, the question of law to be decided is ‘whether on the evidence as it stands [the accused] could lawfully be convicted’. If the answer to that question is in the affirmative, the case must be left with the jury. If not, it is the duty of the trial judge to direct a verdict of acquittal.

[6]  The approach that must be taken to the determination of that question was authoritatively laid down by the High Court in Doney v The Queen, as follows:

‘[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’

[7]  It follows that a trial judge who is called on to rule on a no case submission must take the Crown case at its highest. Furthermore, questions of credibility, reliability or the weight to be accorded particular evidence are all matters within the exclusive province of the jury. So, too, are inconsistencies in the evidence; they are for the jury to resolve. Nor is it for a trial judge to consider whether a verdict of guilty returned by the jury on the evidence comprising the Crown case might later be determined by the Court of Appeal to be unsafe or unsatisfactory. That is not the test.

[8]  The jury is the arbiter of the facts. As the Court remarked in Doney, it is fundamental to the determination of the facts that ‘the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful’. As to questions concerning the reliability of particular evidence, the Court accepted as correct the following proposition taken from R v Galbraith:

‘Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of the witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.’

[9]  Of course that is not to say that a trial judge should not consider whether evidence that has a ‘tenuous character’ or an ‘inherent weakness or vagueness’ should be the subject of a warning to the jury but, even if such a warning is given, that evidence will still be available for use by the jury subject to that warning. It is then a matter for the jury to decide what weight should be given to that evidence.

[10]  Where the Crown case rests either wholly or partly on circumstantial evidence, a no case submission is to be decided on the basis of such inferences that are reasonably open in support of the Crown case. It is not the function of a trial judge to choose between inferences which are reasonably open to the jury. The determination of the facts is a matter for the jury, as is the drawing of inferences based on those facts. The judge must therefore proceed on the basis that ‘the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution’.  That however does not mean that reasonable hypotheses consistent with innocence arising on the Crown case can in every instance be ignored. To the contrary, the task of the trial judge is to determine whether the evidence is capable in law of supporting a verdict of guilty. Thus, if the evidence in the Crown case is incapable of excluding all reasonable hypotheses consistent with innocence, the evidence will not be capable in law of proving the charge and there will be no case to answer in relation to it. That is just another way of saying that it is only if the evidence is such that an inference of guilt is incapable of being drawn beyond reasonable doubt that it might be concluded there is ‘in law no material on which a verdict of guilty might be found’, however that point is not reached merely by the existence of a ‘possible inference consistent with innocence’. It follows that the question whether the Crown has excluded every reasonable hypothesis consistent with innocence is a question for the jury; whether the evidence as a whole, and taken at its highest, is capable of doing so is one for the judge. (emphasis added)

[11]  For completeness it should be said that what is required of the Crown in discharging the onus of proof of guilt is not that every possibility of innocence be excluded by the evidence but only that every reasonable possibility be excluded. As such: ‘The existence of an admitted possibility but one that is assessed by experts in the field as being ‘extremely unlikely’, or ‘very remote’, or the result of a ‘very rare coincidence’ is not sufficient to introduce a reasonable doubt precluding the jury from being satisfied to the requisite standard of proof of guilt.’” (internal citations omitted)

Causation

5. [5]
   One of the critical elements which must be proved by the Crown is that the defendant killed Mr Jones, the deceased.
6. [6]
   Relevantly s 293 of the Criminal Code provides that:

… any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

7. [7]
   Holmes JA in R v Legradi & Lombaard (Legradi & Lombaard) conveniently summarised the authorities as follows:^[4]

“It will suffice if the appellants’ acts are “a substantial or significant cause of death”. Juries may properly be told that,

‘… the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter”. (footnotes omitted)

8. [8]
   Section 296 of the Criminal Code provides that:

A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.

9. [9]
   The Crown identified that it was contending that the acts which caused the deceased’s death were the compression to the neck and all of the acts, the reason being that, consistent with the doctor’s evidence, it could be inferred that the psychological stress that arises from an altercation could have caused the deceased to die, the psychological stress being caused on the Crown’s case by the entire assault.^[5]
10. [10]
    The defence accepts that the defendant inflicted injuries upon the deceased, Mr Jones. Admissions were made by the defendant to police immediately after the event in that regard. There is however on the evidence a contest as to the extent of the physical acts of the defendant carried out with observations of eyewitnesses, Ms Phythian and Ms Bishop, particularly in terms of the number of times the defendant used force to cause the defendant to hit his head on the driveway. There is an inference reasonably open on the basis of the observations by the pathologist Dr Milne that there were physical blows to other parts of the deceased’s body, particularly his face.
11. [11]
    There is no evidence of any other cause for the injuries identified by the pathologist,^[6] which included trauma to the deceased’s head, neck and face, save in respect of those injuries which could have been caused by attempted resuscitation. There was also evidence of some historic injuries which were healing.  Dr Milne considered all the injuries were inflicted with mild to the lower end of the moderate range of force.^[7]  There is a reasonable inference open on the evidence of the defendant and Ms Phythian and Ms Bishop that the force used was moderate.
12. [12]
    In short it is uncontested that on the night of 31 October 2020, the deceased turned up to the house of Ms Clark dressed in a jacket with a hoodie and black gloves and had a bottle of fuel and a lighter. There is evidence of there being fuel on the driveway, which the Crown accepted was evidence of an assault by the deceased. It was conceded that the question of self-defence would be determined on the basis of an unprovoked assault under s 271(2) of the Criminal Code. There is evidence from the defendant and Ms Clark that the deceased moved towards the defendant. The defendant told police immediately after the events in question that the defendant and deceased had grappled with each other. There is some evidence suggesting there may have been an exchange of blows. According to the defendant, the deceased pulled the defendant down on the ground onto his knees, that the defendant then jumped up and grabbed the deceased in response to the deceased’s actions and swept his feet and grabbed him and threw him to the ground causing him to hit his head and repeated  that when the deceased attempted to get back up, grabbing him by the throat and pushing him to the ground causing the deceased to hit his head. One description in a police recording included that the defendant “grabbed him by the throat to try and cut his airway and smashed him”^[8] and to another officer that “I grabbed him by the throat and swept him out”, and then, in the re-enactment, that he “swept him” and “driven him into the ground” and put his “right hand in his neck and drove his head straight into the ground” and when the deceased came up again “I’ve just gone whack with an open … palm and I’ve just taken his head straight back into the ground again” and “I’ve grabbed him up under the chin and I’ve just lifted him … I hit him, I’m pretty sure I hit him in the chin or in the, in the throat.”  
13. [13]
    There are two eyewitnesses who observed the defendant banging the deceased’s head on the ground on a number of occasions, although the precise number of occasions and how that occurred are matters of discrepancy.  Ms Phythian, who lived next door to Ms Clark, gave evidence that she thought it was less than a minute between hearing men yelling and seeing the male in the dark t-shirt strike the other man, shaking him and striking his head, namely the back of his head, two or three times and that it all happened quickly. Ms Bishop’s description was of a man standing and shaking the other, suggesting he was hitting his face when he did so and letting go of the man who fell to the ground and lifting him up again and repeating that action.
14. [14]
    The defence submits that based on evidence given by Dr Milne outlined at paragraph 40 of its submissions, the Crown cannot prove that the acts of the accused caused the death of the deceased because it cannot prove beyond reasonable doubt that the acts of the accused caused the death of the deceased given there are hypotheses available consistent with innocence. 
15. [15]
    In addition to the injuries that were attributed to the evidence, Dr Milne identified that the deceased had a number of pre-existing injuries or medical conditions.
16. [16]
    Dr Milne gave evidence that the deceased suffered cardiomyopathy and secondly an area of severe narrowing of the arteries or atherosclerosis, which is the commonest cause of heart attacks. He considered that the conditions were both severe. The former condition could “cause an arrhythmia and then you could faint or collapse or even die at any time”.^[9] In respect of the deceased’s atherosclerosis, Dr Milne gave evidence that “that too can cause a sudden arrhythmia at any time and it could also cause a heart attack from which someone may or may not survive.”^[10]
17. [17]
    Dr Milne’s evidence included that:

    1. (a)
       “And the existence of this particular significant brain injury, the tissue tears, are the likely consequences death once they’re suffered?---Possible consequence. Like, from what we’ve got, I can’t – I can say there’s been significant injury, and it’s – you know, it’s used to grade these sort of brain injuries, and that’s a medium grade. Potentially, that could happen down the track but not inevitably;^[11]
    2. (b)
       Why did this man die?---I couldn’t make a – a good conclusion as to why this man died, because I think there are several factors involved. I don’t know the full circumstances around the story, so my cause of death was undetermined;^[12]
    3. (c)
       What is the most likely cause of his death?---That’s a difficult question to answer as well. Again, without knowing the circumstances of the events that happened because we’re dealing with head injuries, we’re dealing with neck injuries, we’ve got two types of heart disease and we’ve got a significant amount of alcohol in the system. So, I think, death has been a combination of factors;^[13]
    4. (d)
       Would you accept, yes, or no, that death was likely given the nature of the head injuries and particularly the brain tissue tears?---Not at that moment. So I mentioned that significant brain injuries. Those brain injuries likely but not definitely would have caused unconsciousness. But they shouldn’t have caused instant death;^[14]
    5. (e)
       …whether or not death was likely with the combination of the neck injuries, the compression, and the head injuries including the brain injuries?---The difficulty there is I don’t know what happened to the neck. If it’s a single blow they might have been irrelevant. And if it had been determined that there had been sustained pressure on his neck for a few minutes, for example, then that would certainly raise the possibility of it being the cause of death;^[15]
    6. (f)
       Now, the two types of heart disease, you’ve commented that they are possible contributors to his death?---Yes;^[16]
    7. (g)
       Could you say please whether or not this man had been placed in a stressful situation such as giving an altercation whether or not that could have then resulted in the cardiac event?---Yes. Like we said before, he could have had a sudden death anytime. The chance of that happening increases if you are under psychological stress or excitement or if you are in increased physical activity, so being involved in an altercation or sustaining injuries, that all increases the likelihood of a cardiac event;^[17]
    8. (h)
       Dr Milne, just to put the condition of this man’s heart in lay terms, it’s the case isn’t it that at any day of this man’s life he could have got out of his bed to walk to his  bathroom and died, correct?---Yes;

Yes. And that is in respect of both conditions?---Yes;^[18]

9. (i)
   And it’s the case, isn’t it, and, I think, you’ve just given this evidence, that heightened emotional status or being involved in an altercation could relatively cause his death because of his heart?---Yes;^[19]
10. (j)
    … Now given the state of this man’s heart he could have died at any point during the course of the altercation?- Yes”.^[20]

18. [18]
    The defendant submits that given the above evidence there is no medical evidence that the injuries suffered of themselves were likely to cause death nor that the combination of the neck injuries, the compression and the head injuries caused death. Further, there is evidence from Dr Milne that the deceased could have died at any time during the course of the altercation and that heightened emotional status or being involved in an altercation could have caused his death because of his heart, which has not been excluded on the Crown’s case. It further contends that given Ms Phythian’s evidence, which was supported to some extent by the evidence of Mr Stephen Phythian, there is not a reasonable inference open that sustained pressure was applied by the defendant to the deceased’s neck over a few minutes.
19. [19]
    The Crown contends that it was open to the jury to be satisfied beyond reasonable doubt that the defendant’s sustained attack on the deceased, including the focussed pressure on the neck, caused his death directly or caused the acceleration of his death. Whether the acts of the defendant are described as an acceleration of death or an indirect cause of death, it is enough to establish causation for the purposes of s 293 of the Criminal Code.
20. [20]
    The Crown point to the evidence of the defendant that he applied pressure on the deceased’s neck to contend that there was focussed pressure on the neck capable of supporting causation. While that is the case, there is no evidence of sustained pressure on the neck which was referred to by Dr Milne as being a matter which “would certainly raise the possibility of it being the cause of death”^[21]. The Crown also relied upon Dr Milne’s evidence that the chance of a cardiac event increased “if you are under psychological stress or excitement or if you are in increased physical activity, so being involved in an altercation or sustaining injuries, that all increases the likelihood of a cardiac event.”^[22] Thus all of the actions of the defendant in the Crown’s submission are capable of supporting the defendant’s acts being a cause of the deceased’s death.
21. [21]
    There is no doubt based on Dr Milne’s evidence that the combination of the neck and head injuries suffered by the deceased, which it is open for the jury to infer were caused by the defendant, at least in combination with the deceased’s heart condition could have caused his death. However, the opinion of Dr Milne and the underlying heart conditions support a reasonable hypothesis that the deceased’s death could have been a spontaneous event which could have occurred at any time by the deceased being in a heightened emotional state or that he could have died at any time during the altercation on that evening. Neither Ms Phythian or Ms Bishop observed the deceased to be moving when they saw him being hit on the ground and thought he looked unconscious.^[23] 
22. [22]
    While medical evidence is clearly relevant to the question of causation, it is not for an expert to determine whether the acts of the defendant are a substantial or significant cause of death. That is a question of fact to be decided by a jury. As part of the direction given to a jury in relation to causation they are told:

“Whether it has been proved that the defendant’s acts were a substantial or significant cause of death or contributed substantially to the death is not a question for scientists or philosophers. It is a question for you to answer, applying your common sense to the facts as you find them, appreciating you are considering legal responsibility in a criminal matter and the high standard of satisfaction required is proof beyond a reasonable doubt.”

23. [23]
    The fact that there are a number of potential causes and the question of whether the Crown has excluded every reasonable hypothesis consistent with innocence are matters for the jury. The question for the court is whether the evidence is incapable of excluding all reasonable hypotheses consistent with innocence. That does not include remote hypotheses. In R v Summers (Summers),^[24] both Macrossan CJ and McPherson J referred to R v Bracewell,^[25] where Ormrod LJ approved a direction given to the jury in the following terms:

“That direction, in our judgment, correctly draws the distinction between what might be described as scientific proof on the one hand and legal proof on the other.  It is, with respect, an admirably lucid and succinct way of dealing with a problem which often arises in connection with scientific evidence.  It is, of course, part of cross-examining counsel’s duty to invite expert witnesses to consider alternative hypotheses and, after examining them in detail, to conclude by asking ‘Can you exclude the possibility?’.  The available data may be inadequate to prove scientifically that the alternative hypothesis is false, so the scientific witness will answer ‘No, I cannot exclude it,’ though the effect of his evidence as a whole can be expressed in terms such as ‘But for all practical purposes (including the jury’s), it is so unlikely that it can safely be ignored’.  This is in substance what Dr. Green said.”

24. [24]
    In Summers, the Court of Appeal concluded that the jury’s verdict was not unsafe because there was a possibility of a spontaneous rupture of an aneurysm and the appeal was dismissed.  McPherson J stated that the medical witness formed their opinions on the basis principally of lay evidence that quite clearly was accepted by the jury their common sense and experience. Macrossan CJ stated that:^[26]

“The present case provides an example which invites attention from another point of view.  In an earlier age, before medical science had advanced to its present state, the circumstances in which the deceased died and the responsibility for that death would have been described and tried by direct testimony.  The accused commenced a savage beating of the deceased from which the deceased immediately collapsed, lost consciousness and later died without any recovery of consciousness.  It would not have been thought that any difficulty surrounded an identification of the cause of death and the jury would have proceeded simply upon their appreciation of common experience and understanding of the operation of cause and effect.  The expert testimony in the cases before us now reveals the existence of an alternative theoretical possibility and thus has made the cause of death something which, to an extent, is proved by circumstantial evidence.  Nevertheless the matter is still free of complications.  The question for the jury was whether the conjunction of the collapse and lapse into unconsciousness on the one hand with the assault committed by the accused on the other enabled them to come to the conclusion which the Crown sought, once explanations of the underlying mechanisms and the effect of trauma in increasing the possibility of rupture were given to them.”

25. [25]
    The test in relation to an unsafe verdict is of course different from the test in a no case. As was observed by Douglas J in R v James, Tappin & Thomas,^[27] in Summers there was a factual connexion between the assault and the death established both by evidence of what occurred and by the medical evidence and the issue was whether a remote possibility of another cause of death, namely a spontaneous rupture, caused death. In the case considered by Douglas J, his Honour found that there was a defect in the evidence such that, taken at its highest, it could not sustain a verdict of guilty.^[28] His Honour stated that:^[29]

“It would not be right for the jury to be left to speculate for themselves about possible causes of death, based on the evidence of the struggle between Mr Amaya and the defendants, where the only available medical evidence dealing with the important issue does not support the conclusion they are required to reach. That they have had the advantage of hearing from all of the witnesses, unlike Dr Olumbe, does not allow them to fill in this gap in the prosecution case. Here the circumstances did not speak for themselves in establishing whether the conduct of the defendants was a substantial cause of Mr Amaya's death. One can imagine many cases where the converse would be more likely to be true, for example, where there had been a stabbing or shooting. Here, some medical or scientific evidence to link the conduct to the death was necessary, a fact recognised by the prosecution in calling Dr Olumbe. When his evidence clearly does not establish that the defendants' conduct was a substantial cause of the death then the prosecution has failed to prove a vital element of its case.”

26. [26]
    In Legradi & Lombaard,^[30] the deceased had several external and internal injuries which had been inflicted over a period of time by a number of individuals. The Crown had contended that the defendant had applied unnecessary and excessive force, particularly in applying a “choker” hold or neck restraint in circumstances where there was already force being applied. There was evidence that one of the defendants had held the deceased in a “choker” hold. The deceased was found to have an abnormality of the right coronary artery which exhibited severe atherosclerosis. There were also signs of cardiomyopathy which were not as severe. In that case, the pathologist had found that there was no single identifiable cause of death but there were a number of interlinking factors which played a role in the deceased’s death.^[31] The defendants were found guilty of manslaughter. It was contended on appeal that the Crown could not prove the defendants’ actions contributed significantly or substantially to the deceased’s death. That ground of appeal was upheld.
27. [27]
    In Legradi & Lombaard, the Court of Appeal concluded it was not possible for the jury to exclude other hypotheses consistent with the innocence of both men, noting the case was different from Summers where the existence of a very remote possibility of spontaneous rupture at the same time as the assault was not such as to introduce a reasonable doubt precluding the jury from being satisfied of guilt.^[32] The Court of Appeal stated there were seven possible causes of death of which the neck compression and head injuries were the least significant. The pathologist had accepted that other combinations of causes not including neck compression and head injury could have caused the death. According to Holmes JA, those “were real, not remote possibilities which the jury could not rationally exclude”.^[33] The jury could not have been satisfied beyond reasonable doubt that the actions of the defendants in that case were a significant or substantial cause of the deceased’s death.
28. [28]
    The present case is not one where the circumstances speak for themselves in establishing whether the conduct of the defendant was a substantial cause of the deceased’s death. While there is evidence of a number of injuries having been inflicted by the defendant, including neck and head injuries which extend to internal brain injuries, the evidence also gives rise to reasonable inferences that the deceased’s death which was not caused by the physical injuries inflicted by the defendant but a cardiac event caused by the heightened state of the deceased or his own actions that evening in turning up that with fuel and at least in spreading the fuel on the ground. Notwithstanding Ms Phythian’s evidence that the defendant looked to be using considerable force, Dr Milne assessed that the injuries inflicted showed the use of mild to moderate force (at the low end of moderate). Dr Milne could not say whether any of the injuries inflicted of themselves individually were likely to have caused death without more details of the circumstances and speculated one such circumstance could have been compression of the neck for some minutes. The Crown relies on the fact that can be reasonably excluded on the evidence by the evidence of the defendant. There is some evidence, at least from the defendant’s admissions to the police, that the deceased was conscious at the time of the altercation and after the first head injury was inflicted. The defendant stated the deceased came back up so he grabbed him on at least one view of the evidence, by the throat and pushed him back down again causing the deceased to hit the back of his head. The significance of that event, however, in terms of the cause of death and whether it could reasonably exclude the possibility of the deceased having suffered a cardiac event just prior to the defendant inflicting some or all of the injuries was not explored either in evidence in chief or in cross-examination. Nor was the fact that neither Ms Phythian nor Ms Bishop observed the deceased to be moving during the altercation when they observed the defendant hitting the deceased’s head on the ground. It is a matter left open on the evidence which would be a matter for speculation for the jury as to whether the deceased suffered a cardiac event at an earlier point in time apart from the defendant’s actions due to his own actions and heightened state in turning up to Ms Clark’s that evening.
29. [29]
    Taking the Crown’s case at its highest, while there is evidence that the combination of head and neck injuries together with the two types of heart disease and the level of alcohol in the deceased’s system could have caused the deceased’s death there is no evidence capable of excluding the reasonable hypotheses that death was caused by a cardiac event unrelated to the defendant’s physical acts. Dr Milne did not consider the brain injuries would have caused instant death, although they were likely to cause unconsciousness, and without knowing what happened to the neck he was not prepared to say death was likely with the combination of the neck injuries, the compression and the head injuries including the brain injuries. In that context, Dr Milne stated that if it had been determined that there had been sustained pressure on his neck for a few minutes that would raise the possibility of it being the cause of death.
30. [30]
    The Crown particularly pointed to Dr Milne’s evidence that the bruising on the neck and internal fractures on each side of the larynx was more likely caused by a focussed pressure on the neck and that if pressure was applied to the thyroid horns they were more likely to break. While he described the consequences of such pressure on a person’s breathing as blocking off the airways or blocking off the blood vessels or stimulating nerves in the neck which could cause people to struggle to breathe, be unable to talk or cause pain for which not a lot of force was needed to have those effects his evidence was that he could not conclude the head and neck injuries were a likely cause of death. Dr Milne did however state that a blow to the neck could account for injuries to the neck.^[34] Dr Milne gave evidence that other injuries such as the bleeding in the tissue in the neck region was consistent with pressure being applied to the neck. However, his opinion that was proffered that the neck injuries with the brain injuries could have themselves caused death was based on their being circumstances of sustained pressure on the neck for a few minutes. Further, as the Crown conceded, notwithstanding the reference by the defendant to grabbing the deceased’s neck to block his airway or grabbing his neck in the process of throwing him to the ground, there is no evidence that there was sustained pressure on the neck, nor is there evidence from which the inference is reasonably open. Nor is such an inference reasonably open on the evidence of the eyewitnesses. The evidence of Ms Phythian suggests that could not have been the case given the short time frame over which events occurred. Ms Bishop, who was passing by in a car travelling at, on her evidence, 50 km/hr, stated that in terms of the time when she observed what was going in it felt like a lot more than a few seconds.
31. [31]
    While Dr Milne agreed that the placing of the deceased in a stressful situation such as an altercation could have resulted in a cardiac event or by heightened emotional stress, there is a reasonable inference open on the evidence that that could have been caused by the conduct of the deceased himself, given it is uncontested on the evidence that the deceased turned up at Ms Clark’s residence and the Crown concedes that the deceased assaulted the defendant which was unprovoked. The fact he was alive at some point during the altercation is not evidence capable of excluding the cardiac event having occurred at an earlier point to the defendant’s physical assault of the deceased. On any view of the evidence the engagement between the defendant and the deceased took place over a short period of time. The observations of Ms Bishop and Ms Phythian if accepted, were not inconsistent with the defendant’s version of events. Even on the defendant’s admissions, the deceased stopped moving after he forced him backwards and he hit his head on the second occasion.
32. [32]
    Even taking the Crown’s case at its highest, there is a deficiency in the evidence which cannot be filled by the factual evidence of the witnesses. Medical evidence was necessary to link the conduct of the defendant to the death in the circumstances of this case as is demonstrated by the Crown calling Dr Milne. Dr Milne’s evidence clearly does not establish that the defendant’s conduct was a substantial cause of death. More significantly there is no evidence taking the Crown’s case at its highest capable of excluding the reasonable hypothesis consistent with innocence that the deceased may have suffered a cardiac event before the defendant inflicted the injuries upon him. 
33. [33]
    The Crown has failed to prove a critical element of the charge. The evidence taken as a whole is not capable of excluding every reasonable hypothesis consistent with innocence.
34. [34]
    I will therefore direct the jury to enter a not guilty verdict.

Defence of a Dwelling

35. [35]
    It is not therefore necessary to consider whether the defence of a dwelling could not be negatived by the Crown on the evidence to be considered before the jury.  However, I will address the matter briefly.
36. [36]
    In addition to the issues of causation and intent, there is an issue of whether the killing of the deceased was unlawful.
37. [37]
    Section 267 of the Criminal Code provides that:

“It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—

1. (a)
   the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and

2. (b)
   it is necessary to use that force.”

38. [38]
    There are therefore three elements which need to be satisfied:

    1. (a)
       that Ms Clark was in peaceable possession of a dwelling and that the defendant was lawfully assisting her or acting with her authority;
    2. (b)
       that the defendant used force to prevent or repel the deceased from unlawfully entering or remaining in the dwelling; and
    3. (c)
       the defendant believed on reasonable grounds that the deceased was attempting to enter into or remain in the dwelling with intent to commit an indictable offence in the dwelling and that it was necessary to use the force he used.
39. [39]
    The Crown concedes that there is evidence which raises the defence such that it should be considered by the jury.
40. [40]
    The Crown very properly did not contend that Ms Clark was not in peaceable possession of a dwelling or that the evidence does not establish that the defendant was lawfully assisting Ms Clark or acting with her authority on the evening of 31 October 2020.
41. [41]
    However, the Crown contends that given the fact that the deceased was standing on the edge of the driveway closest to the door it is open for the jury to conclude that the deceased never attempted to enter any dwelling such that the defence would not apply.
42. [42]
    The defence has pointed to a significant amount of evidence which it contends establishes the defence, including that:

    1. (a)
       the deceased was, when banging on the front door, in the dwelling because he was underneath an awning of the premises or was attempting to enter the premises;
    2. (b)
       the defendant used force to prevent or repel the deceased from attempting to enter the dwelling;
    3. (c)
       the defendant believed on reasonable grounds that the deceased was attempting to enter into or remain in the dwelling with intent to commit an indictable offence in the dwelling, in particular to assault both Ms Clark and the defendant or commit arson, and that it was necessary to use the force he used which is founded on:

       1. the threats made in text messages and phone calls by Mr Clarkson to Ms Clark and the defendant made on diverse dates between the 3rd day of October 2020 to the 30th day of October 2020;
       2. the threats and insults made by the deceased to the defendant on the 31st day of October 2020;
       3. the deceased forwarding a photograph of Ms Clark’s house at 1:22pm on the 31st day of October 2020;
       4. the sending by the deceased of an unknown text in Arabic to the accused at 2:13pm on 31st day of October 2020;
       5. the telephone call between Mr Clarkson and the defendant at 10:44pm on the 30th day of October 2020;
       6. unanswered calls to both the accused and Ms Clark from the deceased immediately preceding the deceased bashing on the door;
       7. the dousing of petrol in the vicinity of the front of the house;
       8. the way the deceased was dressed (hoodie and gloves);
       9. the production by the deceased of a lighter in the vicinity of the petrol and the defendant;
       10. the threat made by the deceased to ignite the petrol; and
       11. the deceased advancing towards the defendant and in the general direction of the front door, at a time when the front door was open, and Ms Clark was standing at the entrance to the house.
43. [43]
    The defendant contends that there is no evidence which the Crown can rely on to say that force was not necessary in the circumstances of the case. The Crown do not meet that contention but rather rely on facts which are capable of supporting a conclusion by the jury that the defendant did not have reasonable grounds to consider that the deceased was going to enter the dwelling, namely:

    1. (a)
       the deceased knocked on the front door indicating he was not attempting to enter the premises unlawfully;
    2. (b)
       that the deceased then moved back onto the edge of the driveway away from the front door and outside of the dwelling;
    3. (c)
       notwithstanding the defendant and Ms Clark thought it was Mr Jones, they opened the door to him;
    4. (d)
       the defendant had instigated contact with the deceased to the effect that he wanted to speak to him about his nephew and stated he would come and see him;
    5. (e)
       the petrol was on the ground;
    6. (f)
       there is evidence that the defendant said the lighter was dropped and it was found on the driveway; and
    7. (g)
       that there is evidence that the altercation between the defendant and the deceased occurred on the driveway some distance from the front door based on the evidence of Ms Phythian and Ms Bishop and supported by the position of the plastic bottle and the lighter, although the defendant stated that the deceased and he moved down the driveway during the altercation which the defendant contends could also be reasonably inferred.
44. [44]
    There is strong evidence that supports the defence, however, there is some evidence which if wholly accepted by the jury could establish beyond reasonable doubt that the defence is not made out. I do not accept the evidence if accepted by the jury is incapable of excluding all reasonable hypotheses that are consistent with innocence. It will be a matter for the jury whether they accept the evidence and if they do, whether they are satisfied that there were no reasonable possibilities that the defendant had reasonable grounds for believing that the deceased entered or was attempting to enter Ms Clark’s house to commit an indictable offence.
45. [45]
    Given the conclusion above the jury will be directed to enter not guilty verdicts on the count of murder and the alternative count of manslaughter.