JOHNNY WILLIAM WALTERS v THE KING [2024] SASCA 53

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE STEIN) R V WALTERS [2022] SASC 156 Appellant: JOHNNY WILLIAM WALTERS Counsel: MR M NORMAN KC WITH MR J WILSON - Solicitor: TIM DIBDEN BARRISTER & SOLICITOR Respondent: THE KING Counsel: MR M HINTON KC WITH MR F NIEMANN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/08/2023 File No/s: SCCRM-23-015015 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. WALTERS v THE KING [2024] SASCA 53 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Kimber) 2 May 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - OTHER ACTS OR OMISSIONS RESULTING IN DEATH This was an appeal against conviction entered, and an application for permission to appeal against sentence imposed, for manslaughter by unlawful and dangerous act. Following a trial by judge alone, the appellant was acquitted of the murder, but convicted of the manslaughter, of the victim, consequent upon a physical altercation at the residence of a third-party over a bottle of whisky. The prosecution’s case, which depended in large part on the testimony of observers of that altercation, was that the appellant, enraged by the victim’s belligerence, had engaged in a prolonged assault, over the course of approximately four hours, of the victim that culminated in the victim’s death. Expert forensic pathological evidence adduced by the prosecution posited a number of potential causes of the victim’s death, each of which was attributed to the prolonged assault inflicted on the victim by the appellant. As at the time of his death, the victim suffered from a multitude of physical disabilities and ailments, and both he and the appellant were heavily intoxicated with alcohol and other illicit substances. -- 1 of 34 -- At the trial, the appellant had contended that the injuries precipitating the victim’s death were not caused by his assault thereof, but were instead attributable to the victim repeatedly falling over himself while attempting to attack the appellant. On appeal, the appellant contended that the verdict delivered by the trial judge was unreasonable insofar as it rejected his submission that the injuries substantially contributing to the victim’s death were self-inflicted. The appellant also sought to agitate on appeal that, in the event that his appeal against conviction was dismissed, the sentence imposed by the trial judge was either manifestly excessive or predicated on an error of fact that impacted the assessment of the objective seriousness of the offending. Held (per the Court), dismissing the appeal against conviction and granting permission to appeal, but dismissing the appeal, against sentence: 1. On an independent assessment of the evidence, the trial judge’s verdict was not unreasonable. Although no precise forensic cause of death could be isolated, the injuries inflicted by the appellant on the victim, jointly and severally, were voluntary, unlawful, dangerous, and substantially contributed to the victim’s death. 2. In circumstances where the offending of which the appellant was convicted involved the protracted and violent assault of an older, sickly, intoxicated, and debilitated man, and in light of the appellant’s poor prospects of rehabilitation, the sentence imposed by the trial judge was not manifestly excessive. 3. The sentence imposed by the trial judge had not proceeded on a misapprehension of the relevant facts of the offending. Insofar as the trial judge had observed that the appellant had delivered at least multiple punches to the victim that had fatal consequences, the trial judge had correctly characterised the initial punches thrown as substantial contributions to the victim’s death. Criminal Law Consolidation Act 1935 (SA) s 11; Sentencing Act 2017 (SA) ss 47(5)(d), 48, referred to. Arulthilakan v The Queen (2003) 78 ALJR 257; Dansie v The Queen (2022) 274 CLR 651; Dent v The King [2024] SASCA 12; R v RIK [2004] NSWCCA 282; Royall v The Queen (1991) 172 CLR 378; Wilson v The King (1992) 174 CLR 313, applied. R v Church [1966] 1 QB 59; R v Le Brun [1992] QB 61; R v McDonald (2015) 123 SASR 313; Thabo Meli v The Queen [1954] 1 WLR 228, discussed. -- 2 of 34 -- WALTERS v THE KING [2024] SASCA 53 Court of Appeal – Criminal: Kourakis CJ, Lovell JA, Kimber AJA 1 THE COURT: The appellant, Mr Walters, was charged with the murder of John McLellan on 23 May 2020, contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). He elected for trial by Judge alone. On 22 December 2022, the Judge acquitted Mr Walters of murder, but returned a verdict of guilty of manslaughter. Mr Walters appeals against his conviction for manslaughter on the ground that the verdict is unreasonable and not supported by the evidence. In respect of one of his proposed grounds of appeal, Mr Walters seeks permission to appeal. 2 Dr Langlois, a forensic pathologist, gave evidence that Mr McLellan died of multiple causes, including multiple blunt force injuries to his head. Mr McLellan suffered from chronic illnesses and was intoxicated by alcohol and drugs at the time those injuries were inflicted. It was not contested at trial, or on appeal, that a number of the blows to Mr McLellan’s head were inflicted by Mr Walters. Relevantly to the appeal, the three primary issues at trial were whether or not the prosecution had proved beyond reasonable doubt that: • the blows struck by Mr Walters caused injuries which substantially contributed to Mr McLellan’s death; and • those blows were unlawful; and • viewed objectively, those blows exposed Mr McLellan to an appreciable risk of serious injury. 3 In summary, the defence was that, because the witnesses who had observed the altercation between Mr Walters and Mr McLellan were unreliable, a finding could not be made beyond reasonable doubt that Mr Walters had struck unlawful and dangerous blows which had sufficiently contributed to the injuries suffered by Mr McLellan to have contributed to his death substantially. It was submitted that Mr McLellan might have sustained the injuries which substantially contributed to his death because he tripped himself up in his own belligerent, albeit unsuccessful, attempts to confront and stand up to Mr Walters. 4 For the reasons that follow, on an independent examination of the totality of the evidence, we are satisfied beyond reasonable doubt that Mr Walters inflicted unlawful and dangerous blows which substantially contributed to Mr McLellan’s death. We would grant permission to appeal, but dismiss the appeal. 5 The Judge sentenced Mr Walters to nine years imprisonment. The manslaughter of Mr McLellan breached a suspended sentence of five months and two weeks imprisonment, which was revoked by the Judge. The total notional sentence, therefore, was nine years, five months, and 14 days’ imprisonment. -- 3 of 34 -- [2024] SASCA 53 The Court 2 Section 47(5)(d) of the Sentencing Act 2017 (SA) mandates, subject to s 48 thereof, a four-fifths non-parole period. It was submitted that Mr Walters’ offending fell within s 48 of the Sentencing Act. The Judge rejected the contention that there were exceptional circumstances. The Judge deducted, from the notional head sentence, 80 days for time spent in custody, resulting in a head sentence of nine years, two months, and 26 days. The Judge fixed a non-parole period of six years, 11 months, and 25 days. 6 Mr Walters also appeals against his sentence on the grounds that it is manifestly excessive and that the Judge proceeded on the mistaken factual basis that punches struck by Mr Walters were dangerous and caused Mr McLellan’s death. It will be seen that the latter ground must fail with the dismissal of the unreasonable verdict ground. We would also dismiss the former ground. Mr McLellan suffered a slow and painful death caused by the protracted violent assaults committed by Mr Walters. Mr Walters has a long history of offending and has but little scope for rehabilitation. Even though he had suffered much abuse and deprivation as a child, which, no doubt, played a part in instilling his tendency to violence, the sentence was proportionate to the gravity of the offending. Conviction Appeal Grounds 7 Mr Walters appeals against his conviction on the following grounds: 1. The Learned Trial Judge erred in her approach to considering whether the prosecution had contemporaneously proved the elements of manslaughter beyond reasonable doubt by: 1.1. conflating the issue of whether the applicant and the deceased were involved in a further altercation after the witness Hasler left the unit with the issue of whether the prosecution had proved beyond reasonable doubt that the accused unlawfully inflicted one or more blows, intentionally and deliberately which were dangerous and which caused the deceased’s death. 1.2. having rejected as a “reasonably open inference” that the deceased’s injuries, particularly to various part of his head were sustained by repeated falls unrelated to any force applied to him by the applicant 1.2.1. failing to identify the relevant act or acts which caused any of the deceased’s injuries, beyond the three punches to the deceased’s face described by the witness Hasler. 1.2.2. failing to identify the relevant act or acts which caused the deceased’s death. 1.2.3. failing to then consider whether the prosecution had proved that all elements of manslaughter existed at the same time (the requirement of contemporaneity) namely, whether the act or acts of the accused which caused the deceased’s death were performed intentionally and deliberately, were unlawful, and were dangerous. -- 4 of 34 -- [2024] SASCA 53 The Court 3 2. The Learned Judge erred in her application of the burden of proof in relation to determining whether the prosecution had excluded self-defence beyond reasonable doubt. 3. The verdict of the Learned Judge was unreasonable or cannot be supported having regard to the evidence. Particulars of Ground 3: 3.1. Upon the whole of the evidence the Learned Judge must have entertained a doubt about the applicant’s guilt, particularly as to whether the prosecution had proved beyond reasonable doubt: 3.1.1. that the applicant caused the deceased’s death. 3.1.2. that the relevant act or acts performed by the applicant which were said to have caused the deceased’s death were performed voluntarily and deliberately. 3.1.3. that the relevant act or acts performed by the applicant which were said to have caused the deceased’s death were unlawful. 3.1.4. That the relevant act or acts performed by the applicant which were said to have caused the deceased’s death were dangerous. 8 Ground 3, the unreasonable verdict ground, was referred to this Court for hearing and determining on the question of permission contemporaneously with the appeal itself. 9 Mr Walters’ counsel informed the Court that Grounds 1 and 2 would be argued as elements of Ground 3, and, accordingly, he ‘abandoned’ Grounds 1 and 2 as separate and distinct grounds. The effect of that concession is unclear. 10 Ground 1 might be regarded as no more than a particular of the unreasonable verdict ground. However, it invites a focus on what are claimed to be errors of reasoning of the Judge. As particulars of the unreasonable verdict ground, they may distract this Court from undertaking its own independent review of the evidence.1 We would dismiss Ground 1, recognising that it nonetheless particularises the contention, falling within the unreasonable verdict ground, that the evidence does not exclude the possibility that such unlawful and dangerous blows as Mr Walters inflicted did not substantially contribute to Mr McLellan’s death. 11 Ground 2 alleges an error in the application of the burden of proof, which is distinct from, and can form no part of, the unreasonable verdict ground. When pressed to take the Court to the particular passages in the Judge’s reasons which reversed the onus of proof on the question of self-defence, counsel was unable to 1 Cf Dent v The King [2024] SASCA 12, [42]-[57] (Livesey P and Lovell JA, Nicholson AJA agreeing). -- 5 of 34 -- [2024] SASCA 53 The Court 4 do so. We would simply dismiss Ground 2 because Mr Walters’ counsel was manifestly unable to substantiate it. The Elements of the Offence 12 The elements of the offence of manslaughter of the kind charged here are that the conduct of the accused is: • voluntary and deliberate; • unlawful; • dangerous; and • caused the death of the deceased. 13 The relevant conduct of Mr Walters comprises a single course of conduct between 5:00 pm and 9:00 pm on 23 May 2020, during which period he struck Mr McLellan on multiple occasions. Mr Walters was properly convicted of manslaughter if any part or parts of that course of conduct satisfied the above elements. Once it is accepted, as it correctly is here, that that course of conduct is properly charged in a single count, it is not necessary that every act of that course of conduct contemporaneously satisfies each of those elements. 14 It is not disputed on this appeal that the evidence proved the first element beyond reasonable doubt. 15 On the second element, it is contended that the evidence does not exclude the possibility that at least some of the accused’s acts were lawful by reason of self-defence. 16 In respect of the third element, it is common ground that the test for dangerousness is that laid down in Wilson v The Queen,2 namely that, from the standpoint of a reasonable person, the accused subjected the victim to an appreciable risk of serious injury. 17 An act causes death if it is a substantial or significant cause of death.3 An act which is a necessary link in the sequence of events which culminated in death is not, by reason of that connection alone, a substantial or significant cause of death. All substantial or significant causes of death are necessary links in the chain of causation, such that it can be said that death would not have ensued but for that cause. However, not all acts which satisfy the ‘but for’ test are significant or substantial causes; they may be necessary causes, but nonetheless make only a negligible contribution to death. 2 (1992) 174 CLR 313. 3 Arulthilakan v The Queen (2003) 78 ALJR 257. -- 6 of 34 -- [2024] SASCA 53 The Court 5 18 In R v McDonald,4 Kourakis CJ considered the proper direction on the contemporaneity of intention and a course of conduct in respect of the offence of murder as follows:5 The proper direction on the issue of contemporaneity between intention and conduct for the crime of murder in the circumstances of this case was: The prosecution must prove that at the time that McDonald struck any collection of blows the combined effect of which was to cause a degree of internal bleeding which substantially contributed to the hypovolemic shock which caused LT’s death, he intended to kill her or cause her grievous bodily harm. 19 Although stated in terms of the particular pathological cause of death in that case, the underlying principle of contemporaneity there applied is that on a charge of murder committed by a course of conduct comprising a multiplicity of blows. We acknowledge that there is authority for the proposition that, in a case of murder, in which the cause of death is a course of conduct, it is sufficient that at any point in that course of conduct, the accused formed the intention to kill or cause really serious bodily harm.6 In our respectful opinion, it is difficult to justify a departure from the fundamental principle of contemporaneity because of the practical difficulties it creates in adopting that approach. In the case of murder, requiring contemporaneity may create evidential difficulties because the mental element may be either subjective intention or foresight of consequences. 20 Be that as it may, the offence of manslaughter does not present those evidential difficulties, because the test for the appreciation of a risk of injury is objective. The factual circumstances in R v Church (Church),7 are illustrative. The appellant was convicted of manslaughter committed by a series of acts culminating in death. The victim in Church drowned in a river into which she had been thrown by Church at a time when he believed that he had already killed her in the course of a violent assault. The English Court of Appeal held that the appellant’s belief that his victim was dead when he threw her into the river did not provide him with a defence. It held that, from the standpoint of the reasonable person, the series of acts, taken as a whole, subjected his victim to a risk of serious harm. From an objective standpoint, the act causing death may still be regarded as subjecting the victim to a risk of serious harm even though the accused believes his or her victim already to have died. That is because there remains a real chance that the victim is still alive, whatever the subjective belief of the accused. 21 The principle of contemporaneity of elements and attendant circumstances with the conduct causing death may be applied to the offence of manslaughter by first identifying an act, or collection of acts, falling within the course of conduct charged which substantially contributed to death. The second step is to ask 4 (2015) 123 SASR 313. 5 Ibid 318 [29]. 6 Thabo Meli v The Queen [1954] 1 WLR 228; R v Church [1966] 1 QB 59, 67 (Edmund Davies J). 7 [1966] 1 QB 59. -- 7 of 34 -- [2024] SASCA 53 The Court 6 whether that collection of acts was deliberate, unlawful, and dangerous. A similar approach was taken in R v Le Brun.8 The events of 23 May 22 At about 9:44 pm on Saturday, 23 May 2020, John McLellan was found by police laying next to a cream coloured couch in a small two-bedroom flat (unit 45) in a block of flats in Mellor Court, Gilberton (the Mellor Court flats). His hair, forehead, face and beard were very bloodied. He was unresponsive and had no apparent heartbeat or other sign of cardiac activity. The attempts of the first responders to resuscitate him failed. 23 The tenant of unit 45 was Mr Mark Sullivan. Mr Ian Gordon also resided in the flat. Mr Walters had been staying there in the days before 23 May. Mr McLellan resided in a nearby flat. He often visited Mr Sullivan and had visited unit 45 daily in the preceding week. 24 The Mellor Court flats had access to James Street, which runs between Edmond Terrace and Walkerville Terrace. There is a Fassina liquor store and a Woolworths supermarket in the Bentzen Court shopping precinct on Walkerville Terrace. 25 Mr Sullivan was a methamphetamine addict but had last drunk alcohol some 16 years earlier. He was using methamphetamine two or three times a week in the lead up to 23 May 2020. Mr Sullivan testified that he had used methamphetamine on Friday 22 May and that he probably took it again on the morning of 23 May. He had not slept for two or so days before 23 May. He described methamphetamine as leaving him in a state which he described as ‘fly’ but he denied experiencing psychotic episodes. 26 Mr Sullivan gave evidence that he saw Mr Walters use methamphetamine on Thursday, 21, or Friday, 22 May. 27 Ms Wilson is a longtime friend of Mr Walters. She arrived at unit 45 at about 2:30 to 3:00 am on 23 May. She testified that she and Mr Walters had used a gram of methamphetamine in the three days preceding 23 May. Ms Wilson brought methamphetamine with her to repay Mr Walters for what he had shared with her on earlier occasions. Ms Wilson mixed up three to four points of methamphetamine with water. She, Mr Sullivan, and Mr Walters injected, about equal, amounts intravenously. 28 Mr Walters’ and Mr McLellan’s movements during the day of 23 May were captured by CCTV located at a number of the sites which they visited or passed by. At 11:17 am, Mr Walters and Mr McLellan left the Mellor Court flats. Mr Walters appeared to be carrying red wine. They took a taxi into the Central Business District where it stopped outside of a bank. Mr Walters and Mr McLellan 8 [1992] QB 61. -- 8 of 34 -- [2024] SASCA 53 The Court 7 left the taxi briefly before getting back in it. It appears that they had not appreciated that it was a Saturday, and that the bank was, therefore, closed. The taxi then travelled to Gouger Street, where it arrived at 11:36 am. When Mr McLellan alighted, he carried, and, at other times, used, his walking stick. 29 Mr McLellan boarded a bus in the city at 12:51 pm, but Mr Walters was barred from doing so because he was carrying alcohol. Mr McLellan arrived at Walkerville Terrace at 1:05 pm. He was using his walking stick but appeared steady on his feet. After getting off the bus, he purchased a bottle of whiskey from the Fassina liquor store. 30 On the way back to the Mellor Court flats, Mr McLellan met his adopted brother, Saint Lucifer Mordechai. They walked on together and were captured on CCTV at about 1:18 pm. Mr McLellan stopped from time to time to catch his breath. 31 Mr Sullivan’s testimony was that he was in his unit with Mr McLellan at about 12:00 pm when he left to shop at Woolworths, from where he returned at about 2:00 pm. CCTV footage shows Mr Sullivan returning to James Street at about 12:24 pm. It appears that Mr Sullivan may not have recalled that Mr McLellan and Mr Walters had left before he ventured out to do his shopping, and that Mr McLellan did not return until after 1.18 pm. 32 Mr Sullivan is again captured on CCTV walking down James Street towards Woolworths at about 4:26 pm. He testified that he went there on that occasion to purchase some mobile phone credit. Between 4:48 and 4:50 pm, Mr Sullivan and Mr Walters are seen in the vicinity of the Fassina liquor store. Mr Walters is shown carrying two wine casks in an orange box. At about 5:00 pm, both men are recorded on CCTV footage walking up James Street towards the Mellor Court flats. 33 Mr Sullivan testified that a fight broke out between Mr McLellan and Mr Walters in the living area of unit 45 at about 5:30 pm. Mr Sullivan’s evidence was that, when he and Mr Walters first entered the flat, Mr Walters made a beeline for Mr McLellan’s bottle of whiskey, which was on the coffee table. He took a mouthful of whiskey directly from the bottle. Mr McLellan, who had just come out of one of the bedrooms, grabbed the bottle from Mr Walters, and claimed it as his. 34 Mr Sullivan testified that Mr McLellan then sat on the cream couch and argued loudly with Mr Walters who was standing in front of the television. He described Mr McLellan’s demeanour as loud and cocky. Mr Sullivan testified that Mr McLellan stood up and was still shouting when the situation ‘exploded’. Mr Walters walked up to Mr McLellan and punched him some six or seven times. Mr Sullivan’s evidence was that the punches forcefully threw Mr McLellan backwards onto the three-seater cream couch and against the wall. However, Mr Sullivan was cross-examined about prior statements to police which were -- 9 of 34 -- [2024] SASCA 53 The Court 8 inconsistent with the degree of force he described in his evidence. Moreover, other evidence established that Mr McLellan fell back onto a two-seater black couch and not the cream couch. Mr Sullivan testified that Mr McLellan’s eyes appeared to be glazed over and that he lost consciousness. Mr Sullivan protested and asked Mr Walters to leave Mr McLellan alone, saying ‘you’ll kill him’. Mr Sullivan claimed that Mr Walters responded, ‘he wants to die and I’m gonna help him!’. 35 Mr Sullivan gave evidence that he later saw Mr McLellan crawling along the floor with his head under the coffee table. He heard Mr Walters ask Mr McLellan whether he intended to climb out of the window. According to Mr Sullivan, Mr Walters then kicked Mr McLellan in the head and punched him again. Under cross-examination, Mr Sullivan’s description of the force behind the kick seemed implausible. Mr Sullivan gave evidence that Mr Walters pulled Mr McLellan up from underneath the coffee table and threw him onto the black couch. Mr Sullivan saw blood dripping from Mr McLellan’s beard. 36 Mr Sullivan testified that, sometime later again, he observed, from his position in the kitchen, that Mr McLellan was on the black couch, apparently conscious and breathing, but gargling blood. Mr McLellan was muttering ‘why are you doing this to me?’. Mr Sullivan testified that the events he described took place over two to three hours, but that there were intervals of inactivity. Later again, Mr Sullivan saw Mr McLellan on the floor, bleeding but still breathing. Forensic examiners later found a pool of blood on the coffee table and blood stains consistent with having been left by Mr McLellan’s bloodied hair brushing against the floor. 37 Mr Sullivan testified that Mr Walters showered to wash off the blood on his body and splashed water from a bucket to clean up the blood in the flat. Mr Sullivan helped him clean up for several minutes. 38 Mr Sullivan’s recollection was that he left the flat between 8:30 pm and 9:00 pm. However, CCTV footage shows Mr Sullivan leaving James Street at 6:46 pm and catching a bus shortly afterwards at 7:00 pm. 39 Plainly, Mr Sullivan’s memory of the length of time over which the incident took place was mistaken. Given Mr Sullivan’s description of Mr McLellan’s bloodied condition as he lay prostrate on the floor, and his evidence of the clean- up, it can be accepted, favourably to Mr Walters, that there was no further assault after he left. It follows that the events leading to Mr McLellan’s death must have taken place between shortly after 5.15 pm and shortly before 6.45 pm. 40 CCTV footage shows Mr Sullivan returning to unit 45 later that night at about 10.46 pm. 41 Mr Walters is shown on CCTV footage leaving the Mellor Court flat at 8:55 pm. He was in the Bentzen Court shopping centre at 8:59 pm and left from there at about 9:03 pm. He caught a bus at about 9:05 pm. He appeared unsteady -- 10 of 34 -- [2024] SASCA 53 The Court 9 on his feet. CCTV footage from the bus shows him speaking intently to a passenger he did not know. Mr Walters was arrested at 3:08 am on 24 May. 42 The Judge had no doubt that Mr Sullivan observed an altercation between Mr Walters and Mr McLellan. However, her Honour found that she could not accept Mr Sullivan’s evidence, unless it was supported by other evidence which she did accept, because of the evidence of his intoxication, its effects on his recollection, and the inconsistencies between his testimony and the statement that he had given to police. Her Honour expressly found that she could not rely on Mr Sullivan’s accounts in respect of the critical events said to have occurred during the incident, including the number, sequence, and force of the blows struck by Mr Walters. Nor could she accept the comment that Mr Sullivan attributed to Mr Walters, ‘he wants to die, and I am going to help him!’. However, we observe that Mr Sullivan’s evidence that he saw Mr McLellan laying on the floor in a bloodied state is supported by the forensic examination of the flat. It is also of some significance that Mr Sullivan did not give any evidence in examination-in-chief or cross-examination that Mr McLellan struck, or attempted to strike Mr Walters in any way. Nor did he describe Mr McLellan tripping, or accidentally falling, in a way which might have caused injury. 43 Mr Nigel (Axle) Hasler was once also a long-term drug addict, but had not taken drugs for many years. He had not drunk any alcohol on 23 May. Mr Hasler gave evidence that he saw Mr Walters and Mr McLellan argue over whiskey. He saw Mr McLellan waving his walking stick and heard Mr Walters direct him to ‘sit down old man’. Mr Hasler tried to calm both men down, but Mr McLellan continued to berate Mr Walters until Mr Walters announced, ‘that’s it Axle, you’ve had your go man’. Mr Walters then ‘whacked’ Mr McLellan ‘straight in the mouth’. Such was the force of the first blow that he ‘hit the wall’ and ‘bounced back on the couch’. Mr McLellan got himself up only to be punched onto the couch once more. The same sequence was repeated for a third time, but Mr McLellan did not get back up from the couch on which he lay. Mr Hasler testified that, after the three punches, Mr McLellan was laying on his back on the couch and bleeding from the mouth. 44 Mr Hasler testified that he thought it best to leave because:: Jock was not going to stop and Johnny was not going to stop as long as Jock was abusing the shit out of him. 45 Mr Hasler’s evidence was that, when he left Mr McLellan, was quiet and was not really moving.9 Mr Walters, on the other hand, was still angry. Mr Hasler testified that he called his nephew to pick him up. CCTV footage shows that Mr Hasler got into a car on James Street at 5:45 pm. It follows from the timing of Mr Sullivan’s departure referred to at [38] above that the altercation between Mr Walters and Mr McLellan continued for less than an hour after Mr Hasler left. 9 T 241-242. -- 11 of 34 -- [2024] SASCA 53 The Court 10 46 The Judge accepted Mr Hasler’s evidence and his account of the blows. We observe that, leaving aside the number of punches and the couch involved, Mr Hasler’s evidence is largely consistent with Mr Sullivan’s. In particular, Mr Hasler’s evidence that Mr McLellan was laying on the, albeit black, couch after the third punch is consistent with Mr Sullivan’s account that the blows were forceful and left Mr McLellan glazed and semi-conscious. On Mr Hasler’s description, the first blow was unlawful and, given that Mr McLellan was ‘whacked’ with sufficient force to cause him to ‘hit the wall’, dangerous. The subsequent punches, in the context of the effect of the first punch, were also both unlawful and dangerous. As we shall see, on Dr Langlois’s evidence, it was established beyond reasonable doubt that those punches made a significant contribution to Mr McLellan’s death. Mr Walters’ Police Statement 47 Mr Walters did not give evidence. His statements to police were adduced in the prosecution case. Mr Walters said to police that Mr McLellan ‘was a fuckin asshole anyway he kept fuckin fightin me bro’ and ‘I didn’t want to fight him bro’. Mr Walters also told police: It’s not like Jock was some fucken Angel. When he’d go around fucking crackin’ heads open…(Inaudible)…thinking he was a fucken gangster with the fucken Carlton Crew an’ shit like that you know what I mean. Shit that, what we put up with that fucker man and I was the only cunt that day that said, ‘Get the fuck up, get outta bed I give ya $200 to take him to GLENELG’. He fucken just wants to bash cunts every day. He fucken – look how old he is mate. ‘Give it away Son’ you know what I mean? What you think I fucken like bashing an old man? Ya serious? I didn’t want to fucken fight him bro. 48 Mr Walters’ statements are evidence, by way of an admission against interest, to having ‘bashed’ Mr McLellan. Moreover, Mr Walters did not assert that he was acting in self-defence, even though he referred to Mr McLellan ‘thinking he was a fucken gangster’. Rather, Mr Walters’ complaint was that he, and others, had to ‘put up’ with Mr McLellan’s boasts. Mr Walters’ reasons for the ‘fight’ are more consistent with a claim that he was provoked by Mr McLellan’s belligerence, even though he did not like ‘bashing an old man’ rather than a claim that he was acting in self-defence. Blood Splatter 49 There were significant areas of blood splatter along the northern wall of the lounge room of the flat in the area of a black two-seater couch. The blood splatter included elliptical and closed circular spots of blood. Some of the splatter was consistent with an impact to a bloodied body part; others were consistent with blood being cast off by a sudden movement of a bloodied body part. Some stains showed signs of having been wiped over. It is significant that some splatter was of a ‘cast off’ pattern. That pattern is consistent with Mr McLellan being struck after he was already bleeding. -- 12 of 34 -- [2024] SASCA 53 The Court 11 50 There was bloodstaining on the cream couch on the western wall of the flat. Some of that bloodstaining appeared to have been diluted by water. Mr McLellan was found in the lounge room, lying on the floor with his head close to the cream couch. The photographs of Mr McLellan’s body showed his hair and face significantly bloodied. There was bloodstaining along the front of the couch and on an armrest on the southern side of the couch. 51 Elliptical droplets of blood splatter were found on the dining room table, against the southern wall, and under the front window on that wall. The splatter found there was caused either by an impact with a bloodied body part, or cast off from a bloodied body part. Again, that finding is significant because it suggests movements of one or more of Mr McLellan’s already bloodied body parts after the punches described by Mr Hasler and at a different location. 52 There was a significant bloodstain on the floor, largely underneath the coffee table near the dining room table. It appeared that the blood had pooled over the top of litter on the floor, or that the litter had fallen onto the blood after it had pooled. As well as that solid area of staining and pooling, there was other staining which was consistent with bloodied hair moving across the floor. 53 Blood splatter was also located on shelves just to the south of the cream couch. 54 Mr Walters’ clothes were significantly bloodstained. The Judge found that Mr Walters must, therefore, have been in close proximity to Mr McLellan when he was bleeding heavily, but could not otherwise find how the blood came to be deposited. Mr McLellan’s Health and Character 55 The defence adduced evidence from several witnesses that Mr McLellan was an argumentative and obnoxious man. Mr Mordechai described Mr McLellan as having a spiteful tongue. In cross-examination, Mr Hasler agreed that Mr McLellan would refer to his walking stick as the ‘skull cracker’. However, Mr Hasler described Mr McLellan’s aluminium walking stick as ‘the most useless weapon you could … find’ and compared it to ‘your mother hitting you with a wooden spoon’. 56 Mr Sullivan described Mr McLellan as an opinionated man who never took a backward step. Mr Sullivan also said that Mr McLellan was a wild, violent man, but explained that his opinion was based on stories Mr McLellan would tell. Both Mr Hasler and Mr Sullivan had seen Mr McLellan wave his walking stick, but neither had ever seen him use it to strike anyone. 57 Evidence was also led that Mr McLellan had a history of offending stretching from 1987 and 2016, the most serious of which was a robbery with violence. He was also convicted of the offences of resist police, possessing an unregistered -- 13 of 34 -- [2024] SASCA 53 The Court 12 firearm, common assault, larceny, and three offences of carrying an offensive weapon. 58 Mr McLellan suffered from a panoply of chronic medical conditions. They included: asthma; anxiety; bipolar affective disorder; cannabis dependence; chronic obstructive pulmonary disease; depression; hepatitis B and C; hepatic encephalopathy; hypertension; mood disorder; opioid dependence; PTSD; alcohol abuse; and alcohol related short term memory loss. The autopsy report showed that, in the day or so before his death, he had taken morphine, methamphetamine, cannabis, and a range of prescription medications, the effect of which were to, by and large, leave him feeling drowsy. Mr Walters’ Intoxication 59 Mr Walters was blood-tested after his arrest. His blood alcohol reading was nil but that was a product of the time of his arrest. His carboxy THC level was 54μg, and his methamphetamine level was 0.07mg, per litre of blood. Based on CCTV footage of Mr Walters and the evidence of the forensic pharmacologist, Professor White, the Judge found that Mr Walters was under the influence of both methamphetamine and alcohol on the morning of 23 May 2020. Her Honour accepted the opinion of Professor White, that it was possible that Mr Walters’ behaviour on the bus after 9.00 pm was consistent with methamphetamine and/or alcohol consumption between 5:30 pm and 9:05 pm. Her Honour accepted Professor White’s evidence that, on the afternoon of 23 May, Mr Walters had a likely concentration of methamphetamine in the intermediate range, commonly reached by people who are using the drug. She accepted Professor White’s conclusion that Mr Walters was so intoxicated by methamphetamine and alcohol that, when he left the unit at about 9:05 pm, he was out of touch with reality. The post-mortem 60 Dr Langlois is a forensic pathologist who performed the autopsy on Mr McLellan. He provided a report of his findings and gave evidence before the Judge. His significant post-mortem findings were:10 1. Bruising and laceration of face and head. 2. Fractured left zygoma. 3. Brain injury. a. Patchy recent subarachnoid haemorrhage. b. Recent (mild) intraventricular haemorrhage (including in aqueduct). c. Petechial haemorrhages white matter frontal lobe. d. Amyloid precursor protein staining corpus callosum and brainstem. 10 R v Walters [2022] SASC 156, [437]. -- 14 of 34 -- [2024] SASCA 53 The Court 13 4. Bruising of chest. 5. Rib fractures. 6. Laceration of spleen. 7. Cirrhosis of liver. 8. Emphysema of the lungs. 61 Blunt force injuries are caused when the body is struck with, or moves into contact with, a blunt object. They may be caused by an object striking the body or by the body falling against an object. The injuries so caused may be bruises, abrasions, or lacerations (being tears or splits of the skin), and bone fractures. In the course of conducting the post-mortem, Dr Langlois observed 56 injuries consistent with recent blunt force trauma to Mr McLellan’s head, neck, trunk, arms, and legs. 62 We focus below on the injuries to Mr McLellan’s head, but mention first bruises, including deep bruises, to his chest which were not associated with attempts to resuscitate him. They are significant for two reasons. First, Dr Langlois explained that they mechanically would restrict Mr McLellan’s capacity to draw breath. Secondly, they must have been sustained after Mr Hasler left. Thirdly, the application of force which caused those bruises must have carried with it an appreciable risk of serious injury having regard to the state in which Mr McLellan was left after the punches observed by Mr Hassler. 63 The injuries to Mr McLellan’s head included bruising of the upper and lower left eyelids, superficial laceration of the upper left eyelid, and subconjunctival haemorrhages of the left eye. Those injuries may have been caused by one blunt force impact or by multiple impacts of that kind. The bruising of the eyelids merged into bruising of the left side of the face, prominently over the left cheek with swelling and a superficial laceration to the left cheek. 64 Dr Langlois identified a fracture of the left zygoma (cheek bone), producing complete detachment. There was an extensive haemorrhage associated with that fracture into the left cheek region, with disruption of subcutaneous tissue, blood extending from the mandible into the perioral tissues, left cheek, left parotid gland, left periorbital region, and inferior part of the left temporalis muscle. Dr Langlois’s opinion was that the left sided facial injuries could have been caused by one blow of moderate force, or several blows of minor force. In Dr Langlois’ opinion, moderate to severe force, like a forceful punch, was required to fracture the cheek bone. It can be inferred, therefore, that at least one blow to the left of Mr McLellan’s face was struck with moderate force. 65 Another blunt force injury caused small abrasions on the left cheek and nose and lacerations over the left supraorbital ridge. Bruising over the left side of the forehead including curvilinear accentuations of bruising, punctate abrasions, and a 2.5-centimetre laceration were consistent with another blunt force injury or -- 15 of 34 -- [2024] SASCA 53 The Court 14 injuries. The complex pattern suggested multiple impacts, but it could also have been caused by contact with an irregular complex object. 66 There was bruising on the end of the nose and an abrasion on the bridge of the nose. Blood in the nostrils was indicative of bleeding from the nose during life, consistent with blunt force injury to the nose. 67 Bruising and apparent swelling of the left ear with tears and splits of the left helix could have been caused by one impact to the ear with the ear pressed flat against the head. Dr Langlois’s opinion was that it would be an uncommon injury from a fall because the ear is protected by other features of the face and head. He considered it more likely that the injury was caused by a blow than a fall. 68 There was bruising of the right eyebrow region, upper eyelid, and the adjacent forehead. 69 There was a three-centimetre laceration of the scalp and a haematoma collection in the left frontal and parietal regions. There was a boggy haematoma collection under the scalp with superficial lacerations in the back left and right regions of the scalp. 70 Bruising and laceration to the right ear canal, bruising to the scalp, bruising and abrasion to the right side of the face and chin with possibly an outline of a curved object across the cheek might have been caused by more than a single blunt force trauma. It might also have been caused by one object with curved features. The base of a glass, possibly the bottom of a bottle, perhaps the side or base of a heel or part of a bottle, could cause such bruising. It was an unusual configuration to expect from a punch. 71 Dr Langlois also observed an abrasion and two lacerations under the chin. They were more likely to have been caused by sharp, rather than blunt force traumas, because they had clean cut edges with no associated abrasion and did not appear to be bruised at the edges. Those particular findings of Dr Langlois were addressed at length at trial and on appeal. 72 One of the lacerations was in a bent elliptical shape and the other was in the nature of a puncture wound. Dr Langlois opined that the injuries under the chin were more probably caused by a glass moving up and down than from side to side, but he did not find any fragments of anything broken in the wounds. Dr Langlois’s opinion was that the abrasion and the puncture wound were consistent with falling, largely vertically, onto glass, or with glass being pushed upward to the underside of Mr McLellan’s chin: … what I meant was in my opinion the injuries are more in keeping with the glass moving, say, up and down rather than from side to side. So, therefore, it would be equally as possible for him to have landed on a piece of glass that was already broken as to have a piece of glass that was broken put under the chin and pushed upwards, but I meant was it was consistent with either of those scenarios, but it was more than the possibility of a swipe or a passing blow or a slash. -- 16 of 34 -- [2024] SASCA 53 The Court 15 73 Shattered glass was found by police on the floor of the living area but the Judge was not able to make any findings about the source of that glass, nor the manner in which it came to be distributed in the lounge room. 74 It is not clear precisely what forensic significance the defence attached to the presence of those particular wounds. It might be that they were wounds of a nature which are likely to have bled considerably and, therefore, to have offered an explanation for the blood found on Mr Walters’ clothing other than direct contact between Mr McLellan and Mr Walters in the course of an assault. Be that as it may, the competing inferences available on Dr Langlois’s evidence are that either Mr McLellan fell, landing on glass, with the underside of his chin exposed, or that a piece of broken glass was pushed upward to the underside of his chin. Dr Langlois thought it unlikely that Mr McLellan sustained the wounds whilst crawling across the floor on which there was broken glass because there was no sign of laceration consistent with having been caused by glass on his arms or hands. 75 It is difficult to imagine the mechanics of a fall which would expose the underside of Mr McLellan’s chin to glass on a relatively flat object in a way which would cause those injuries. Conversely, one can readily envisage how they might be caused by the pushing of glass into the underside of Mr McLellan’s chin. Even if Mr McLellan did sustain the injuries by falling, the relevant questions are whether: • he fell whilst moving about for reasons which were not responsive to the attacks of Mr Walters; or • because of a blow struck by Mr Walters; or • because he was attempting to withstand or escape from Mr Walters’ assault on him. 76 Mr McLellan would be likely to have had greater difficulty in cushioning his fall with his limbs, or otherwise avoiding exposing the underside of his chin, if his fall were caused by Mr Walters, or if he were attempting to escape, shield, or defend himself from Mr Walters than if he had stumbled over himself. 77 Overall, the evidence of those wounds, together with the evidence as a whole, more strongly supports an inference that Mr Walters caused the fall, if that is how the injuries were sustained. 78 Dr Langlois’s opinion was that at least seven impacts were required to cause all of Mr McLellan’s head injuries. The geometry of the head makes it very difficult for one blunt object impact to produce multiple injuries at multiple sites. Dr Langlois’s opinion was that the degree of force of the impacts ranged from moderate to severe. 79 It is important to observe here that either more punches were landed to Mr McLellan’s head by Mr Walters before Mr Hasler left, or Mr Walters struck -- 17 of 34 -- [2024] SASCA 53 The Court 16 additional blows to Mr McLellan’s head after Mr Hasler left. Having regard to the state in which Mr Hasler left Mr McLellan, any further blows to Mr McLellan’s head must have subjected Mr McLellan to an appreciable risk of serious injury. 80 Much was made at trial and on appeal of the possibility that many of Mr McLellan’s injuries may have been self-inflicted in that he fell over himself whilst adopting unnecessarily belligerent poses because of his intoxication and generally frail condition. The abstract possibility of such events, of which Mr Walters was not a substantial cause, may be accepted but, as we shall see, the evidence excludes any reasonable possibility that any such occurrence was a substantial or significant cause of Mr McLellan’s death. 81 The evidence of Mr Hasler shows that Mr Walters launched an unlawful attack on Mr McLellan for no reason other than that Mr McLellan had annoyed him. Any subsequent defensive conduct on Mr McLellan’s part was, therefore, caused by Mr Walters. So, too, was any attempt to escape from or avoid Mr Walters’ blows. Attempts by Mr McLellan to hold his ground, stand up to Mr Walters, or adopt a belligerent or fighting pose are equally natural human responses to aggression. Falls which are the result of exhaustion and the debilitating effects of Mr Walters’ blows were also caused by him. On each of these suppositions, advanced by Mr Walters as a ground for disclaiming legal responsibility for Mr McLellan’s death, the defence mounted, or actions engaged in, by Mr McLellan were natural consequences of, and responses to, Mr Walters’ wanton violence.11 82 It is unlikely that the additional impacts were caused by Mr McLellan’s conduct independently of anything brought about by Mr Walters’ unlawful acts. The nature and extent of the injuries, the extent and spread of the blood splatter and pooling, and Mr McLellan’s debilitated state render fanciful the possibility that Mr McLellan’s injuries were the result of some Don Quixote like jousting with windmills. 83 Dr Langlois found blood in the main airways to the lungs which would have obstructed the passage of air. However, Dr Langlois’s opinion was that the blood may well have been forced into the airway during resuscitation because there was no clear evidence of inhalation of blood during life. Dr Langlois said that there was a large amount of dark red fluid with the appearance of blood in the stomach, but it might have been red wine. If it were blood, it might have been swallowed whilst Mr McLellan was alive, but a similar finding is not uncommon following resuscitation. Dr Langlois was asked, perhaps surprisingly, in cross-examination whether the gargling sounds heard by Mr Sullivan were consistent with Mr McLellan swallowing blood whilst alive. Dr Langlois responded that it would 11 Cf Royall v The Queen (1991) 172 CLR 378, 389 (Mason CJ); R v RIK [2004] NSWCCA 282, [17]- [23] (Hodgson JA, Hulme J and Smart AJ agreeing). -- 18 of 34 -- [2024] SASCA 53 The Court 17 suggest maybe some blood in the mouth but that he ‘wouldn’t really go any further than that’. 84 Neuropathological examination of the brain found axonal changes in the corpus callosum, which connects the two sides of the brain and inner brain stem. Dr Langlois’s evidence was that that finding is in keeping with a head injury sustained during life, with a period of survival for more than half an hour from the time of the head injury to death. 85 Dr Langlois opined that one impact, or a succession of impacts, could have caused the brain injuries. Dr Langlois thought that if the fracture to the zygoma was caused by one impact, the same impact could have caused the brain injuries. Dr Langlois said that some impairment of brain function, with a degree of impairment of judgment, coordination, and consciousness, could be expected from an injury of that kind. It can be inferred, then, that a blow of moderate force, or perhaps a succession of blows of less force, caused the brain injury. In response to a question directed toward his inability to deduce the severity of any blow(s) struck by Mr Walters on Mr McLellan from the latter’s brain injury, Dr Langlois gave evidence that axonal changes of the kind experienced by Mr McLellan would not normally be expected from ordinary, low-force, collisions involving the head. The examples given by Dr Langlois included walking into a low door, falling over, and heading a soccer ball. In each of those examples, Dr Langlois opined that there would be insufficient force or energy to damage a person’s axons and cause intracranial and intraventricular bleeding. Conversely, Dr Langlois, in response to a question asking whether collision with a wall following a sufficiently forceful punch could occasion axonal changes, opined that ‘in that scenario of an impact to the front and then subsequently slumping back, I could imagine that that would produce enough force’.12 It is unlikely, then, that the brain injury was caused by Mr McLellan falling over himself. Any falls after the blow which caused the brain injury, with a resulting loss of co-ordination, can, therefore, be attributed to Mr Walters’ conduct. 86 The evidence of Mr Hasler, and Mr Sullivan, strongly supports a finding that the punches observed by Mr Hasler caused most of the head injuries, and that at least one, if not all of them, were struck with moderate force. On that finding, Mr Sullivan’s evidence that Mr McLellan was ‘glazed over and semi-conscious’ is consistent with Dr Langlois’s opinion about the impairments which were likely to flow from the head injury. 87 It follows from the conclusions reached in the preceding two paragraphs which strongly support a finding that the punches described by Mr Hasler were a substantial cause of Mr McLellan’s death, either by reason of the aspiration of blood or exhaustion as described at [91] and [98]-[99] respectively. 12 T633. -- 19 of 34 -- [2024] SASCA 53 The Court 18 88 The prosecutor drew Dr Langlois’s attention to Mr McLellan’s pre-existing emphysema and to Mr McLellan’s compromised respiratory function caused by the drugs he had taken. He then asked Dr Langlois how blunt force trauma may contribute to respiratory failure:13 Q. In that scenario of respiratory failure then leading to death, do the blunt-force injuries necessarily have a role to play. A. They can. In the situation we have here with a man with emphysema and clearly damaged lungs, again it is difficult to predict the degree of effect that that would have clinically, so I can’t look at the lungs and say they would have this degree of impairment but we do know that he was able to function and move around from day to day, so he obviously had enough function left in his lungs to be able to maintain some degree of activity. But if within that, it can be quite easy to take a person from that level of being able to function to a level where they progress into respiratory failure and factors such as pain which can inhibit breathing, so if a person has bruises and injuries on their chest so that expanding the chest causes them pain, they will tend not to expand the chest and then that can tip emphysema into respiratory failure. In this case we’re particularly worried about the airway, it appears he’s had some blood in his nose, that’s a nose injury. Just blocking the nasal channel can impair the ability to take in air and breathe, but in this case what’s probably maybe more significant is the potential for blood to get in the airways. There was evidence of blood in the airways at the post-mortem. It has to be conceded that that could have occurred at the end of life when he’s on the ground and then having resuscitation blowing the blood into the lungs but some of the lungs [sic] was in the air spaces. When air gets into the airways it’s very viscous, it’s really quite, it’s not actually much of a fluid, it really becomes quite firm and when it fills an airway it’s easy to breathe in past it, because breathing in expands the airway and gets it past the blood, but then when trying to breathe out of course, as I explained, the airway collapses and it becomes harder to breathe out. So blood in the airways is very good at causing what we call air trapping in the lungs, so that people can breathe in and then can’t breathe past it. So in the situation of emphysema where it’s already difficult to breathe out, presence of blood in the airways would make it even harder. So if he did have bleeding, for example from the nose, and it did get in to his – he did inhale any, that would be a potential way that he could rapidly go into respiratory failure. (Emphasis added) 89 In the underlined passages, Dr Langlois explains two mechanisms by which the blows inflicted by Mr Walters may have substantially contributed to Mr McLellan’s death. The first is the effect of the chest injuries in producing a mechanical restriction on Mr McLellan’s capacity to breathe. 90 The possibility that Mr McLellan sustained chest bruising (unrelated to resuscitation) other than for those reasons closely related to Mr Walters’ assaults described in [81] above must be excluded because it is difficult to imagine the choreography of Mr McLellan engaging in such conduct, in a way which might cause him to fall in such a way, and with sufficient force to fracture his ribs. 13 T577-578 -- 20 of 34 -- [2024] SASCA 53 The Court 19 91 The second is the aspiration of blood. True it is that Dr Langlois could not, by pathological examination, exclude the blood having been introduced into the airways by attempts to resuscitate Mr McLellan. However, the fact that Mr McLellan was alive and feisty at the beginning of the altercation, but close to death an hour or so later, strongly supports the inference that nasal bleeding and aspiration into the airways, whilst he was alive, substantially contributed to his death. The evidence: • of Mr Sullivan that he heard gargling noises; • of Dr Langlois that it suggested blood in the mouth; and • of the finding of blood in the airways; and • of the movements of McLellan over a period of time after Mr Sullivan heard him gargling; considered abductively supports a conclusion that the blood was aspirated whilst Mr McLellan was alive over the possibility that the blood was introduced into the lungs by the resuscitation attempts, even though Dr Langlois could not give an opinion to that effect based on the pathology alone. 92 Consistently with his post-mortem report, when Dr Langlois gave evidence, he maintained that the blunt force injuries suffered by Mr McLellan were a cause of death:14 Q. But the blunt-force trauma in your opinion was a cause of his death, even accepting any contribution from the emphysema. A. That is a difficult question to answer because there isn’t one fatal injury, nor is there any collection of injuries that I could point to and say ‘these could cause death’ or ‘these would definitely cause death’. So we discussed how the head injury or at least the manifestations of the head injury and the neuropathology could be fatal, but again a number of people can sustain an equal degree of trauma and not die, so the head injury and the blunt trauma is not necessarily fatal. The fractured cheekbone is a moderate to severe force but would not necessarily be fatal. Any of the injuries you look at, even if the fractured ribs were during the course of the altercation would not cause death of themselves. So one way of looking at it is it is difficult to see how any one or even the total number of the injuries would have killed him if he had been a fit and healthy man but he clearly wasn’t. So it’s all of those injuries on top of the emphysema and possibly with the effect of drugs have killed him, but in saying that it has to be blunt-force trauma there. In my opinion there is no reason to suspect with just the emphysema and the drugs that he would have died at that time. (Underlining added) 93 Dr Langlois’s reasoning in the underlined sentence is based on the inferences he drew in reaching his expert opinion, and which were available to the Judge and to this Court to draw. The inference can properly be drawn from the circumstance 14 T579-580. -- 21 of 34 -- [2024] SASCA 53 The Court 20 that Mr McLellan was, in many respects, an invalid, but alive and functioning before the altercation started, who died soon thereafter. 94 Dr Langlois elaborated on the physiological mechanisms by which the individual injuries caused by blunt force trauma could have contributed to Mr McLellan’s death as follows:15 A. Because there are a number of injuries there that together, of course if we accept that the rib fractures occurred during the assault would cause pain breathing. The head injury, we would expect to have some effect on conscious level and possibly on breathing, the general pain from injuries, any other injuries to the chest of course we explained because of impaired breathing and just the general stress on the injuries on the body, the amount of pain possibly could interact adversely, increasing adrenaline, requiring more cardiac output. So all of those factors together – another way of looking at it is we would assume that he may occasionally have the odd little accident and bump into something or fall and may sustain one or two injuries, but now we have lots of injuries and he’s dead so it must be the cumulation effect of injuries. So why is a cumulation of injuries fatal, well certainly pain, increasing cardiac output, demanding breathing more. Blood loss probably not in this case from the injuries, he has not lost a lot, but we have possibly got a problem with breathing from the blood in the nose and maybe blood in the airways, the head injury decreasing breathing, possibly the rib fracture, if we include it. So there are multiple ways we can postulate that a number of injuries would act together to tip him over that threshold that put him into the pathway to death whereas normally he would be able to function with his emphysema and drugs. I’m afraid it’s one of those sort of airy-fairy forensic things, we just assume, and it is an assumption, that this man is alive and functioning with a certain number of problems and would occasionally injure himself but because he sustained a number of injuries he has died and although, I say, it seems to lack substance, nonetheless forensically we do encounter this on many occasions when a person will sustain multiple traumas, each one of which is not enough to cause death but the combined effect of multiple blunt traumas together cause death and often there is no particular reason or factor that can be identified, but merely the fact that it’s occurred and we do encounter this phenomenon. … A. Yes, the way it’s approached is we know he chronically has the emphysema, the examination of the lungs didn’t show any particular reason why the emphysema would be worse that day than any other, so that’s a chronic condition. The assumption is he chronically uses drugs, so they are there. So on a day-to-day basis the emphysema and/or drugs are present and yet he hasn’t died, so the forensic logic is that the new addition is multiple injuries, possibly combined with some exhaustion, battling or other factors, but there is a specific new event and, therefore, because it is a new event and presumably over a limited period of time. In terms of the forensic cause of death we put that above everything else and say ‘This is the factor –’ and I know we hate the ‘but for’, ‘– but for the blunt-force trauma he would not be dead on that day’. (Underlining added) 15 T580-581. -- 22 of 34 -- [2024] SASCA 53 The Court 21 95 The underlined passages again show the part played by the inference flowing from the change in Mr McLellan’s condition before and after the altercation. It is convenient to make the point here that the reasoning engaged in might be seen as an application of that but for the test in the sense that Dr Langlois makes the point that something over and above Mr McLellan’s underlying pathologies must have precipitated his death. However, that does not entail a conclusion that the additional cause is not a substantial cause for the reasons given at [17] above. Indeed, Dr Langlois’s evidence explains precisely why the blunt force traumas were substantial causes. 96 Dr Langlois was pressed by Mr Walters’ counsel about whether some of the blunt force trauma suffered by Mr McLellan might have been caused by him falling onto or over an object:16 A. No, I mean it could be blunt-force trauma from falling over. Q. So, for example, if there was evidence someone slumped to the floor from a sofa, they’re too intoxicated to put their hands out, that could easily explain why they might get trauma to the face. A. Yes, they slump forward onto the floor, yes. … Q. But is it fair to say this: just looking at the injuries, your expert view was these could be, at least some of them, caused by a fall. A. At least some of them could be, yes, but of course, why I say ‘caused by a fall’ I’m not qualifying whether that’s a spontaneous fall from loss of balance or a fall from the action of another person. Q. Or a fall during the middle of a fight, something like that. A. Yes. Q. Or a fall from slumping off a sofa on to your face. A. Yes. Q. It tells us, of course, nothing about what the person might have fallen against either. A. That’s true, there may be, in some cases, features but all the injuries in this case had no particular characteristic to suggest a particular item or area or characteristics of what had fallen against or what had impacted. Q. We know and I think you visited the scene, pretty cramped space, lots of furniture. A. Yes. Q. Including a broken table. 16 T586; T602; T657. -- 23 of 34 -- [2024] SASCA 53 The Court 22 A. That was my understanding, yes, I didn’t investigate the table. … A. There’s really a lot of assumptions put together there, involving not just physical assault but the role drugs and pre-existing disease and his clear demonstration he has the ability to shout and make a noise, so he has respiratory function. So we would probably have to break that all down, but if the thrust of your argument is that he has been involved in an activity for a period of time before he eventually collapses, that can be possibly be put forward as an example of exhaustion. As I said, traditionally as pathologists, we do not tend to put in the cause of death findings that we cannot observe or have not observed at the post-mortem examination. There are exceptions to that I know but in general terms it’s not usual for us to add something, for example, as exhaustion, because it cannot be assessed or gaged from the findings at post- mortem examination. So it would be very difficult for me, particularity with such a large number of assumptions and certainly a large lack of clarity as to exactly what happened, for me to make any adjustment just from that conjecture, when there isn’t really any clear witness account of what happens at the end. 97 It can be seen from the last passage that Dr Langlois could not opine from the nature of the injuries in themselves whether they were caused by Mr Walters inflicting a blow or blows or from Mr McLellan falling onto objects in a way which caused blunt force trauma. However, the enervated state of Mr McLellan after the punches seen by Mr Hasler, and the nature and spread of the many injuries he suffered strongly support an inference that, as Mr Hasler suspected, many further blows were struck by a still angered Mr Walters. 98 In his examination-in-chief, Dr Langlois explained how physical exhaustion might also have contributed to Mr McLellan’s death:17 A. It is, but there is one other mechanism that I think should be mentioned here and that is simply one of exhaustion. If a person is battling or being beaten or involved in some sort of physical altercation obviously that can be quite a lot of exertion and if a person can normally walk around but get short of breath because of their emphysema and is then in a sustained physical event, that may be enough to simply just exhaust them. So they’ve been breathing hard, that will then cause the chest muscles to become exhausted and then that can lead to death. So just simple exhaustion could be a factor in this case. Q. You say could be a factor, I wonder what, if anything you can say about the likelihood of death occurring in this case resulting from the emphysema, coupled with exhaustion and respiratory failure, but absent contribution from the blunt-force injuries. A. I see. So, yes, if I was to take him on, say, a 10-mile run and not hit him in the process that would probably be quite effective, but the blunt-force trauma has occurred during an altercation, so the blunt-force trauma is important because that presumably is why he’s exerting himself, he’s involved in a physical event where there is presumably an interaction between two people. The blunt-force trauma is a mark or evidence, physical evidence of that physical activity of the altercation taking place. So I suppose another way of looking at it is not the blunt-force trauma per se 17 T578-579; T658. -- 24 of 34 -- [2024] SASCA 53 The Court 23 but the blunt-force trauma is evidence that he was doing something that exhausted him, which is not quite the same answer but it nonetheless indicates that the presence of the blunt-force trauma is fundamental to his death, in my opinion. 99 Dr Langlois continued in his cross-examination to opine on the possible connection between exhaustion and the death of Mr McLellan: Q. I apologise, I can’t give that to you, but nevertheless you volunteer exhaustion as a potential cause of death in this case, bearing in mind all the factors that we have identified and gone through at some length. A. Yes, I mean certainly some degree of exhaustion may have been involved but, of course, the exhaustion was a factor of the fact he was involved in an altercation with blunt-force trauma. Q. Coming back to your conclusion that but for that altercation, whatever it involved, he wouldn’t necessarily have become exhausted or experienced respiratory failure or whatever else. A. Yes, exactly. I mean that is my argument and that is my opinion of the cause of death. There are chronic conditions there, the presence of drugs and alcohol, the chronic obstructive pulmonary disease or emphysema and there is what we in medical terms call acute or recent or fresh, and that is the evidence of assault and, therefore, it is my assessment that that was the event that caused the death on the background of the pre-existing problems. (Underlining added) 100 The underlined passages describe exhaustion as an additional concurrent cause, by way of a substantial contribution, of Mr McLellan’s death which can be attributed to the assault on him by Mr Walters. That causal mechanism incorporates efforts by Mr McLellan of the kind described at [81] above to stand up to Mr Walters’ assaults because such responses were also caused by Mr Walters’ assault. The Test for Unreasonableness 101 In Dansie v The Queen, the High Court said:18 [15] Filippou confirmed that the function of a court of criminal appeal determining an appeal on the unreasonable verdict ground is to be performed under the guidance of M in exactly the same way where the trial has been by judge alone as where the trial has been by jury. In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court ‘will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt’. 18 (2022) 274 CLR 651, 660-1 [15]-[16]. -- 25 of 34 -- [2024] SASCA 53 The Court 24 [16] Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. Mr Walters’ Contention in respect of the Grounds of Appeal 102 Mr Walters’ contention in respect of the unreasonable verdict ground was succinctly put in the written submissions of his counsel as follows: Upon an independent assessment of the whole of the evidence, it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty of manslaughter. In particular, it is submitted that the combination of ambiguous pathological evidence and the absence of any reliable evidence as to what occurred in the unit where the deceased died after the departure of the eyewitness Nigel Hasler, meant that the prosecution was not able to prove beyond reasonable doubt that the accused voluntarily and unlawfully performed an act or acts which caused the deceased’s death and which were qualitatively dangerous in that they exposed the deceased to an appreciable risk of serious harm. As such, the verdict of manslaughter was unreasonable and cannot be supported having regard to the evidence. 103 The written submissions elaborated on the other possible causes of injuries to Mr McLellan in this way: The possibility that the deceased stood up and was aggressive towards the appellant and/or attacked or attempted to attack the appellant, arose from the combination of the state of the unit which was consistent with an altercation as having occurred combined with the body of evidence as to the deceased’s disposition generally and Nigel Hasler’s evidence as to the deceased’s disposition on the afternoon in question. 104 At par [46] of the submissions, Mr Walters’ counsel made the following criticism of the Judges’ reasoning: In her reasons, the trial judge found it inherently implausible that the numbering pattern of injuries suffered by the deceased were naturally caused or caused by a series of falls unrelated to any conduct of the appellant. The trial judge also considered it inherently plausible that there was no further altercation between the appellant and the deceased after Mr Hasler left the unit or that the appellant had no further involvement in resulting falls and/or injuries (the falls or injuries having occurred as a result of blows administered by the appellant or indirectly arising from the impact the injuries were having on the deceased). These findings by the trial judge (and when coupled with the contents of the sentencing remarks set out at [42] above) demonstrate the trial judge’s inability, based on the evidence adduced by the prosecution, to make positive findings with any degree of specificity as to what occurred after Nigel Hasler left the unit. -- 26 of 34 -- [2024] SASCA 53 The Court 25 105 The premise of that criticism is that Mr Walters could not be convicted of manslaughter unless the evidence supported findings with a high degree of specificity as to the number and nature of any blows inflicted by Mr Walters on Mr McLellan after Mr Hasler left. For the reasons given at [18]-[21] above, that premise is mistaken. The Judge’s Findings 106 The Judge found beyond reasonable doubt that the injuries suffered by Mr McLellan were predominantly caused, directly or indirectly, by Mr Walters:19 Counsel for Mr Walters submitted that the evidence left open a reasonable possibility that in the course of getting up and/or moving around and/or yelling repeatedly, Mr McLellan may have sustained one or more falls that led to him suffering blunt force trauma including the blows resulting in brain injuries. However, the number and locations of the injuries are not consistent with an inference of a coincidental, significant number of falls. Taking into account as a whole the evidence I have accepted, I do not consider there is reasonably open an inference consistent with Mr McLellan’s injuries, particularly on the various parts of his head, being caused by repeated falls unrelated to any force applied to him. I also do not consider there is reasonably open an inference consistent with Mr McLellan having suffered the injuries unrelated to any conduct of Mr Walters. That evidence includes the evidence of Mr Hasler about what occurred in his presence, the time when Mr Hasler left the unit relative to when Mr Walters left about two hours later, Mr McLellan’s appearance on the CCTV footage, the location of the blood splatter around the unit, the blood on Mr Walters’ clothing, the absence of injuries to Mr Walters and the absence of any suggestion of another attacker. I also take into account the evidence of Professor White concerning the state of intoxication of Mr McLellan and the likely impact of the drugs and alcohol upon Mr McLellan’s cognition, mobility and coordination, including the sedating impact of the heroin. Despite yelling and waving his walking stick initially, Mr McLellan did not attempt to strike Mr Walters in Mr Hasler’s presence. Mr Walters struck him each time he stood up and, on each punch, Mr McLellan fell back, and had not immediately stood up again after the third punch. By the third punch, Mr McLellan was visibly bleeding from around his mouth. I consider it inherently implausible in that context, given his pre-existing mobility issues, his intoxication and the sedating effects of the drugs consumed, that Mr McLellan then commenced a series of independent movements around the unit or a sustained attempted attack on Mr Walters which resulted in Mr McLellan independently and repeatedly falling over. I do not overlook the possibility that Mr McLellan may have got to his feet again and/or continued to yell at Mr Walters and/or attempted to engage in some way as a result of the disinhibitory effects of alcohol. I do not overlook the possibility that Mr McLellan may have fallen once or more times during the incident, including potentially as a result of his intoxication and/or mobility issues and/or the cramped space. However, given the evidence I have accepted, I consider it inherently implausible that there was no further altercation with Mr Walters or that he had no further involvement in the resulting falls and/or injuries. Falls may have occurred directly as a result of blows administered by Mr Walters or indirectly arising from the impact the injuries were having on Mr McLellan. I do not consider reasonably open on the evidence the possibility that all, or the majority, of the significant injuries were caused by such falls unrelated to force applied by Mr Walters and unrelated to the sequence of events commencing with Mr Walters punching Mr McLellan three times. 19 R v Walters [2022] SASC 156 at [517]. -- 27 of 34 -- [2024] SASCA 53 The Court 26 107 The reasoning of the Judge in that passage is strongly persuasive. It accords with our independent consideration of the evidence and, in particular, our conclusions at [81]-[82] above. The evidence proves beyond reasonable doubt that Mr McLellan suffered additional serious head injuries and chest bruising after Mr Hasler left. 108 The combined effect of: • Dr Langlois’s opinion that falls were improbable causes of the injuries; • the enervating, if not disabling, effect of the initial punches; and • Mr McLellan’s poor health and intoxication; excludes any reasonable possibility that Mr McLellan sustained any significant injury independently of the blows struck by Mr Walters, or by falling over himself other than by reason of the direct or indirect effects of Mr Walters’ assaults on him described at [81] above. 109 The Judge rejected the possibility that Mr Walters acted in self-defence after he had landed the first three punches:20 [560] For the reasons I have set out above and taking into account Mr McLellan’s mobility issues, his age, his size relative to Mr Walters, his injuries and the lack of any injuries to Mr Walters, I consider it inherently implausible that after the first three punches, Mr McLellan mounted an attack on Mr Walters which was such to give rise to a reasonable possibility that Mr Walters genuinely believed he had to defend himself against a threat that Mr McLellan represented or that Mr Walters genuinely believed his conduct was reasonable and necessary for a defensive purpose. … [563] Mr Walters’ statements to police demonstrate that Mr Walters had some awareness in relation to Mr McLellan’s propensity for violence or at least an awareness of Mr McLellan’s belief in relation to his persona, thinking he was a “gangster”. Mr Walters’ statement to the effect that he did not like bashing an old man and did not want to fight him is not necessarily or only consistent with a belief Mr McLellan was a threat or that he needed to fight or continue to fight Mr McLellan for a defensive purpose. It demonstrates how Mr Walters regarded Mr McLellan, that is, as an old man. It is consistent with Mr Walters being dismissive of Mr McLellan’s violence, that is, he should “give it away” given his age. I do not consider Mr Walters’ statements as suggestive of a fear of Mr McLellan or as viewing Mr McLellan as a threat. [564] … Although Mr McLellan was of poor health and walked with a walking stick, his appearance on the CCTV footage is not of a particularly weak person. Nevertheless, there was a disparity between the relative sizes of Mr McLellan and Mr Walters and their ages and during the incident Mr Walters was bleeding and bruised. 20 R v Walters [2022] SASC 156, [560]-[567]. -- 28 of 34 -- [2024] SASCA 53 The Court 27 … [566] The second limb of s 15 requires considering whether Mr Walters’ conduct was reasonably proportionate to the threat Mr Walters faced, assessed in the circumstances and in response to the threat Mr Walters genuinely believed existed.21 Even if Mr Walters genuinely believed Mr McLellan represented a threat such that his conduct was necessary and reasonable for a defensive purpose, I do not consider there to be a reasonable possibility that Mr Walters’ conduct was reasonably proportionate to the threat Mr Walters could genuinely have believed existed in the circumstances given Mr McLellan’s mobility issues, his age, his size relative to Mr Walters, the fact Mr Walters knocked him down successfully and he was visibly bleeding, and the lack of any injuries to Mr Walters. Accordingly, the prosecution has proved beyond reasonable doubt that Mr Walters’ conduct was not reasonably proportionate. [567] The prosecution has thus excluded self defence beyond reasonable doubt. (Footnote in original) 110 An independent examination of the evidence, and the testimony of Mr Hasler, in particular, excludes any possibility that Mr Walters was acting in self-defence when he struck the first three punches. Mr Hasler’s narrative is coherent and persuasive. It is directly supported by the testimonial account of Mr Sullivan and circumstantially supported by the findings of Dr Langlois and the forensic evidence of blood splatter. 111 The evidence of: • the effects of the blows witnessed by Mr Hasler on Mr McLellan; • Mr Walters’ agitated state when Mr Hasler left; • the totality of the injuries sustained by Mr McLellan; • blood splatter and pooling in unit 45 and on Mr Walters and his clothing; • the absence of any significant injury on Mr Walters; • Mr Walters’ statements to police; excludes any reasonable possibility that any blow struck by Mr Walters, after the first three punches, was struck in self-defence. 112 The Judge’s findings on causation were: [521] I find the primary cause of Mr McLellan’s death was blunt force trauma. I accept the evidence of Dr Langlois and I dismiss the possibility that the cause of death was attributable to an entirely coincidental loss of respiratory function caused by emphysema or heroin intake combined with alcohol. Even if the heroin played some 21 R v McCarthy (2015) 124 SASR 190 at [60]. -- 29 of 34 -- [2024] SASCA 53 The Court 28 part in the death in impacting respiratory function, that does not negate the blunt force injuries from assault as being a substantial cause of death in the circumstances. [522] I also dismiss the possibility that unrelated exhaustion of itself was the cause of death. I consider the effect of Dr Langlois’ evidence was that any such exhaustion, resulting in increased effort in a man with a pre-existing lung condition, was a result of the incident and the blunt force trauma was fundamental to his death. Put another way, in saying the blunt force trauma was evidence Mr McLellan was doing something that exhausted him, Dr Langlois was attributing the exhaustion to the events causing the blunt force trauma, that is, the incident. [523] The fact Mr McLellan had a pre-existing illness does not prevent the blunt force trauma being the substantial cause of death. [524] … I do not consider the evidence in its totality supports the reasonable possibility that Mr McLellan died of exhaustion as a result of him exhausting himself absent Mr Walters’ conduct, for example, by repeatedly standing up and then falling over or repeatedly standing up and unsuccessfully taking swings at Mr Walters, missing, falling over and then continuing to repeat the same behaviour to the point of exhaustion and respiratory failure. … [527] … I consider Dr Langlois’ evidence, approached from a common-sense perspective of causation, recognising the purpose is to attribute legal responsibility, enables me to find beyond reasonable doubt that a substantial cause of Mr McLellan’s death was the blunt force injuries which were substantially caused by Mr Walters. I dismiss as farfetched the possibility that Mr McLellan’s death was unconnected with the assault during the incident and attributable instead to a coincidental death from drug and alcohol overdose or from emphysema or unrelated exhaustion. [528] I therefore find beyond reasonable doubt that acts of Mr Walters were a substantial cause of Mr McLellan’s death. [Citations omitted] 113 For the reasons given at [89], [91], [95] and [100] an independent assessment of the evidence excludes any reasonable possibility that the effects of the blows struck by Mr Walters did not substantially contribute to Mr McLellan’s death. In particular, the: • nose bleeding, • head injury, and the altered consciousness which were sequelae of the first three punches seen by Mr Hasler, • the chest bruises which were subsequently inflicted and restricted Mr McLellan’s breathing, and • the exhausting effects of all of the unlawful and dangerous acts; each made a significant contribution to Mr McLellan’s death and together substantially contributed to it. -- 30 of 34 -- [2024] SASCA 53 The Court 29 114 The Judge dealt with the critical element of the dangerousness of Mr Walters’ conduct as follows: [572] The fourth element of manslaughter is that the act or acts of the accused that caused the death of the deceased were dangerous, that is, a reasonable person in the position of the accused would have realised that his or her actions would expose the deceased to an appreciable risk of serious injury. [573] The test is an objective one. It is assessed by reference to a reasonable hypothetical person in the position of the accused. It does not require that a reasonable person would have realised that death or even grievous bodily harm would result. It is a lower threshold, that a reasonable person would have realised that the blows inflicted on Mr McLellan would expose Mr McLellan to an appreciable risk of serious injury. [574] The fact the injuries were not individually enough to cause death or that some injuries were of lesser significance than others does not detract from the relevance of their combined effect in assessing whether a person in the position of Mr Walters would have realised he or she was exposing Mr McLellan to an appreciable risk of serious injury. Punching another to the head of itself poses an appreciable risk of serious injury. Mr Walters knew Mr McLellan was older, smaller, had mobility issues and used a walking stick. Mr McLellan suffered more than one injury to the head as well as other injuries not attributable to resuscitation. Mr McLellan’s injuries caused visible bleeding and his face was bruised. His hair was blood soaked and his blood was splattered in locations around the lounge room, including the large bloodstain B8. I do not consider it a reasonable possibility that a reasonable person in Mr Walters position would not have realised his actions exposed Mr McLellan to an appreciable risk of serious injury. Accordingly, the prosecution has proved beyond reasonable doubt that the acts of Mr Walters that caused the death of Mr McLellan were dangerous in that a reasonable person in the position of Mr Walters would have realised their actions would expose Mr McLellan to an appreciable risk of serious injury. [575] I am satisfied beyond reasonable doubt that Mr Walters’ acts which were the substantial cause of Mr McLellan’s death were unlawful and dangerous. [Citations omitted] For the reasons given in pars [46], [62] and [79], an independent assessment of the evidence supports those findings and proves beyond reasonable doubt that the blows struck by Mr Walters which substantially contributed to Mr McLellan’s death were dangerous. Conclusion 115 For the reasons given above the evidence establishes that the first three punches were dangerous and significantly contributed to Mr McLellan’s death and it also establishes the nature and number of injuries subsequently inflicted on -- 31 of 34 -- [2024] SASCA 53 The Court 30 Mr McLellan directly, or indirectly, by Mr Walters were dangerous and substantially contributed to his death. 116 The evidence excludes any reasonable possibility consistent with Mr Walters’ innocence. For our part, we do not, on a consideration of the whole of the evidence, entertain any reasonable doubt as to the appellant’s guilt. Notice of Appeal against Sentence 117 The appellant applies for permission to appeal against the sentence on the grounds that: Ground 1 1. The head sentence of nine years was manifestly excessive. Particulars 1.1 The learned sentencing Judge failed to have regard to: a. The circumstances in which the altercation began between the parties. b. The circumstances in which any altercation may have continued. c. The parties’ intoxication. d. The evidence of pathology and causation. e. The applicant’s personal circumstances. f. The applicant’s remorse and contrition. g. the applicant’s potential for rehabilitation. Ground 2 2. The Judge sentenced the applicant on a materially incorrect factual basis in finding that the ‘delivery of at least multiple punches’ to the deceased’s head had ‘fatal consequences’ (sentencing remarks at p 5, paragraph 1). Particulars 2.1 The issue of dangerousness was to be assessed against the act or acts which caused death. 2.2 The evidence did not prove that it was a punch or multiple punches delivered by the applicant to the deceased’s head which caused death. 118 We observe immediately that the particulars as to Ground 1 are not particulars of manifest excess at all. The ground that the sentence is manifestly excessive raises for consideration by this Court whether that outcome is or is not within a proper exercise of the sentencing discretion on the facts and circumstance -- 32 of 34 -- [2024] SASCA 53 The Court 31 of the offence and the offender.22 However, the particulars allege process errors in the way in which the Judge exercised the discretion.23 119 In so far as the particulars were intended to allege, as a separate ground, that the Judge failed to have regard to relevant considerations, that ground can immediately be dismissed. The Judge expressly had regard to each of the considerations particularised. Moreover, the Judge’s sentencing remarks are to be read together with her Honour’s extensive reasons for judgment, in which the offending was closely examined. 120 The complaint made by Ground 2 relates to the following paragraph of the Judge’s sentencing remarks: While I accept you acted without preplanning, I do not consider your offending was at the lower end of the scale of seriousness of offences of this kind. Your conduct was serious with all the risks inherent in the delivery of at least multiple punches to the head, which risks include the risk of death. Your conduct had such fatal consequences. 121 Earlier, the Judge had expressly referred to the findings made, in her Honour’s reasons for conviction, that Mr Walters had inflicted further blows on Mr McLellan after the initial three punches. She listed the injuries sustained by Mr McLellan and noted that Dr Langlois could not attribute Mr McLellan’s death to one specific injury. She repeated Dr Langlois’s conclusion that Mr McLellan’s death was caused by blunt force injuries in a man with emphysema and who was intoxicated by alcohol, opiates, cannabis, and methamphetamine. 122 Ground 2 must also be dismissed. It will be noticed that the Judge’s remarks referred to ‘the delivery of at least multiple punches’ having ‘fatal consequences’. The Judge was, therefore, treating the multiple punches observed by Mr Hasler as the minimum course of conduct constituting the offence in that they, themselves, were unlawful and dangerous and substantially contributed to Mr McLellan’s death. 123 For the reasons given in dismissing the appeal against conviction, that finding is plainly right. In any event, the evidence proved, and the Judge found, that other acts and the conduct of Mr Walters after those punches were thrown were also both unlawful and dangerous, and that, on the evidence of Dr Langlois, they together substantially contributed to Mr McLellan’s death. 124 In support of the ground that the sentence is manifestly excessive, Mr Walters’ counsel relied on Mr Walters’ personal circumstances. He was 49 years of age at the time of sentence. His maternal grandmother was an Aboriginal woman, and Mr Walters has always identified as an Aboriginal man. 22 See, eg, Dinsdale v The Queen (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J); R v Meyboom [2012] ACTCA 48, [60] (Refshauge, Penfold and North JJ); R v Pham (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ); ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4, [7] (Leeming JA, Garling and Cavanagh JJ agreeing). 23 Cf R v Meyboom [2012] ACTCA 48, [59] (Refshauge, Penfold and North JJ). -- 33 of 34 -- [2024] SASCA 53 The Court 32 He was raised in an Aboriginal community. The family lived in poverty. Mr Walters schooled himself and he has been the victim of many assaults in the past. 125 Mr Walters has only met his father on two occasions and his attempts to reconcile were rebutted. Mr Walters was left with his grandfather whilst his mother worked. His grandfather was physically abusive and would beat him with electrical cords. Bullying and fighting were always a part of Mr Walters’ life. 126 Mr Walters began drinking alcohol at age 11, and first used amphetamines at aged 18. He had also taken LSD, ecstasy, cannabis, and heroin. Mr Walters was prescribed anti-depressants, anti-anxiety medication and anti-psychotics. 127 Mr Walters once found some work in an abattoir and in earth moving and mining but was not able to hold those jobs down. 128 He has a young daughter aged five to whom he writes monthly. 129 He has been convicted of more than 30 offences of assault and has been imprisoned for such offences on at least eight occasions. The offence of manslaughter breached a partially suspended sentence imposed for offences of assault, assault causing harm, aggravated assault, and breach of bail. The suspended sentence was for seven months but he was released after serving six weeks of that term. 130 The Judge was correct to conclude that the offending was not at the lower end of the range of seriousness. The conduct for which Mr Walters fell to be sentenced was a protracted violent assault of an older, sickly, and intoxicated man who, towards the end of the course of conduct, was also seriously debilitated. Mr McLellan suffered a slow and bloodied death because of Mr Walters’ conduct. 131 Mr Walters’ history of violent offending and methamphetamine abuse leaves him with no appreciable prospect of rehabilitation. Only the passing of the years is likely to reduce his tendency to violence and the seriousness of the injuries he might inflict. 132 The maximum penalty for the offence of manslaughter is life imprisonment. 133 In whatever form it takes, manslaughter is the unlawfully taking of another’s life. The protection of all human life, and in particular the lives of the vulnerable, is the manifest purpose of holding persons responsible for unlawful homicides. 134 The sentence is not manifestly excessive. Conclusion 135 We give permission to appeal but dismiss the appeal. -- 34 of 34 --