BRADLEY WAYNE TRUSSELL v THE KING [2023] SASCA 5
On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE
BAMPTON) SCCRM-20-203
Appellant: BRADLEY WAYNE TRUSSELL Counsel: MRS M SHAW KC WITH MR S JOYCE -
Solicitor: VADASZ LAWYERS
Respondent: THE KING Counsel: MR R WILLIAMS WITH MS T STEVENS - Solicitor: DIRECTOR OF
PUBLIC PROSECUTIONS (SA)
Hearing Date/s: 19/04/2022
File No/s: SCCRM-21-384
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.
TRUSSELL v THE KING
[2023] SASCA 5
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
9 February 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE
PERSON - HOMICIDE - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF
APPEAL - FRESH EVIDENCE - OTHER MATTERS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND
CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF
DEFENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND
CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY
- EVIDENCE
On 10 September 2021, following trial by judge alone, the appellant was convicted of the murder of
his de-factor partner, Ms Eden Kennett. At arraignment on 3 December 2020, the appellant pleaded
guilty to manslaughter by excessive self-defence. That plea was rejected by the Director of Public
Prosecutions (SA).
At trial, the prosecution alleged that in the lead up to her death on 15 December 2018, the deceased
was subjected to at least two separate beatings by the appellant. The fatal injury was inflicted during
the second beating. The cause of death was determined to be hypoxic-ischaemic encephalopathy due
to prolonged hypotension resulting from laceration of the deceased’s liver and subsequent internal
bleeding within the intra-abdominal cavity.
The prosecution case was that the appellant deliberately inflicted the fatal liver injury upon the
deceased with the intention, at least, of causing grievous bodily harm.
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The defence case relied primarily on the appellant’s police interview, and evidence, at trial. The
appellant admitted his actions caused the deceased's death and conceded that they were, for the most
part, deliberate and voluntary. He denied intending to kill the deceased or inflict grievous bodily
harm upon her. It was the defence case that the prosecution could not establish beyond reasonable
doubt the appellant's specific intent to cause grievous bodily harm, or that his actions were not in
excessive self-defence. The trial Judge found that excessive self-defence and provocation did not
arise on the evidence. The trial Judge found that the appellant had a specific intent to, at least, cause
grievous bodily harm when he inflicted the fatal injury. The appellant was found guilty and convicted
of murder.
The appellant appeals against the conviction on the following grounds:
1. The trial Judge’s reasons were inadequate in relation to (Ground 1):
a. the finding that the appellant formed the specific intent to cause grievous bodily harm
to the deceased, and in particular (i) the reliance on the deceased’s injuries; (ii) the
failure to bring to account the psychological evidence as to the appellant’s mental
condition; and (iii) the appellant’s lack of motive and post offence conduct;
b. the exclusion of excessive self-defence; and
c. the exclusion of provocation.
2. The trial Judge erred in failing to bring to account the deceased’s prior acts of violence and
propensity for violence when (Ground 2):
a. determining whether the deceased initiated the violent altercation and her subsequent
conduct towards the appellant;
b. assessing the appellant’s credibility in relation to the physical altercation and its
escalation; and
c. applying the burden and standard of proof to the issues in dispute.
3. The trial Judge erred in her directions as to excessive self-defence by (Ground 3):
a. failing to bring to account the whole of the evidence on this issue, including (but not
limited to) the deceased’s propensity for violence;
b. making a finding that self-defence did not arise;
c. relying on evidence of the appellant’s ‘willing engagement’ and having the ‘upper
hand’ in the altercation without determining the issue in accordance with s 15(2) of the
Criminal Law Consolidation Act 1935 (SA) ('CLCA'); and
d. reasoning that the size difference between the appellant and the deceased alone
rebutted self-defence.
4. The trial Judge erred in finding that the prosecution had disproved provocation beyond
reasonable doubt by (Ground 4):
a. relying on the appellant’s failure to give evidence of a loss of self-control, or fear and
panic;
b. failing to have regard to the whole of the evidence, including the psychological
evidence, the deceased’s propensity for violence, and the appellant’s lack of motive
and post offence conduct;
c. erroneously finding that the appellant had the ‘upper hand’; and
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d. failing to consider how the appellant’s traits and characteristics were relevant in
relation to his state of mind.
Held, per the Court, granting permission to amend the Grounds of appeal, and granting permission
to appeal on Grounds 1, 2 and 3 but dismissing the appeal:
1. The trial Judge’s reasons were not inadequate.
2. The trial Judge did not fail to bring to account evidence of the deceased’s prior acts of violence
and propensity for violence when assessing the deceased’s conduct, and in considering the
appellant’s credibility. The trial Judge did not misapply the burden and standard of proof.
3. The trial Judge did not err in her directions on self-defence or in her approach to the issue of
self-defence. Her Honour considered the whole of the evidence in finding that self-defence
did not arise on the facts of the case, as she found them.
4. It was open to the trial Judge to find that the appellant was not acting for a defensive purpose,
and that self-defence did not arise. The trial Judge properly considered the issue of excessive
self-defence in accordance with s 15(2) of the CLCA.
5. The trial Judge did not err by finding that provocation did not arise on the facts. The trial
Judge did not fail to consider the entirety of the evidence from which provocation might be
inferred. The evidence did not raise a reasonable possibility that the alleged provocation
caused the appellant to lose self-control (the subjective limb), or that an ordinary person could
have been provoked by the alleged provocation to the point of informing an intent to kill or
to cause grievous bodily harm and act on that intention (the objective limb). It was open to
the trial Judge to find the partial defence of provocation disproved.
Criminal Law Consolidation Act 1935 (SA) ss 14B, 15, 15(1), 15(2), 15(2)(a), 15(2)(b), 15(5);
Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA) s 6,
referred to.
Lindsay v The Queen (2015) 255 CLR 272; Masciantonio v The Queen (2015) 255 CLR 272; Morgan
v Colman (1981) 27 SASR 334; Penhall v The Queen [2020] SASCFC 58; R v Trussell [2021] SASC
106 ; Stingel v The Queen (1990) 171 CLR 312; Zecevic v Director of Public Prosecutions (Victoria)
(1987) 162 CLR 645, discussed.
Douglass v The Queen (2012) 86 ALJR 1086; DL v The Queen (2018) 266 CLR 1; Fleming v The
Queen (1998) 197 CLR 250; Harwood v Police (1998) 71 SASR 300; Herbert v The Queen (1982)
62 FLR 302; JGS v The Queen [2020] SASCFC 48; Papps v Police (2000) 77 SASR 210; Parker v
The Queen (1963) 110 CLR 610; Phillips v The Queen [1969] 2 AC 130; R v Cotton [2015] SASCFC
17; R v Helmhout (1980) 1 A Crim R 464 ; R v Keyte (2000) 78 SASR 68; R v McKenzie [2001]
SASC 279; R v Miller (2019) 134 SASR 155; R v Power (2003) 141 A Crim R 203; R v Rendell
(2018) 131 SASR 201; R v Ricciardi (2017) 128 SASR 571; R v Sabet [2018] SASCFC 18; R v
Sexton [2018] SASCFC 28; R v Winner (1995) 79 A Crim R 528; Soulemezis v Dudley (Holdings)
Pty Ltd (1987) 10 NSWLR 247; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Van Den Hoek
v The Queen (1986) 161 CLR 158, considered.
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TRUSSELL v THE KING
[2023] SASCA 5
Court of Appeal – Criminal: Lovell, Bleby and David JJA
1 THE COURT: Following a trial by judge alone, Mr Bradley Wayne Trussell (‘the
appellant’), was convicted of the murder of his de-facto partner, Ms Eden Kennett
(‘the deceased’). At arraignment on 3 December 2020, he pleaded guilty to
manslaughter by excessive self-defence. That plea was rejected by the Director of
Public Prosecutions.
2 The appellant appeals against his conviction on the following grounds:
1. The trial Judge’s reasons were inadequate in relation to:
a. the finding that the appellant formed the specific intent to cause
grievous bodily harm to the deceased, and in particular:
(i) the reliance on the deceased’s injuries;
(ii) the failure to bring to account the psychological evidence as
to the appellant’s mental condition; and
(iii) the appellant’s lack of motive and post-offence conduct;
b. the exclusion of excessive self-defence; and
c. the exclusion of provocation.
2. The trial Judge erred in failing to bring to account the deceased’s prior
acts of violence and propensity for violence, when:
a. determining whether the deceased initiated the violent altercation
and her subsequent conduct towards the appellant;
b. assessing the appellant’s credibility in respect of his account of the
altercation and its escalation; and
c. applying the burden and standard of proof to the issues in dispute.
3. The trial Judge erred in her directions as to excessive self-defence by:
a. failing to bring to account the whole of the evidence on this issue,
including (but not limited to) the deceased’s propensity for
violence;
b. making a finding that self-defence did not arise;
c. relying on evidence of the appellant’s ‘willing engagement’ and
having the ‘upper hand’ in the altercation without determining the
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issue in accordance with s 15(2) of the Criminal Law Consolidation
Act 1935 (SA) (‘CLCA’); and
d. reasoning that the size difference between the appellant and the
deceased alone rebutted self-defence.
4. The trial Judge erred in finding that the prosecution had disproved
provocation beyond reasonable doubt, by:
a. relying on the appellant’s failure to give evidence of a loss of
self-control, or fear and panic;
b. failing to have regard to the whole of the evidence, including the
psychological evidence, the deceased’s propensity for violence, and
the appellant’s lack of motive and post offence conduct;
c. erroneously finding that the appellant had the ‘upper hand’; and
d. failing to consider how the appellant’s traits and characteristics
were relevant in relation to his state of mind.
3 Permission to appeal was granted with respect to Ground 4. The question of
permission to appeal with respect to Grounds 1, 2 and 3 was referred to this Court
for consideration.
The evidence at trial
4 The appellant and the deceased had been in an ‘on and off’ relationship with
one another for approximately two years and, at the time of the deceased’s death,
were living together at the appellant’s rented premises in Mount Gambier. The trial
Judge inferred, by reference to text messages between the appellant and the
deceased, that they were living together between 29 August and
13 December 2018. It was the prosecution case that the relationship was fraught
with violence largely perpetrated by the appellant.
5 At trial, the prosecution case was entirely circumstantial. The prosecution
alleged that in the lead up to her official time of death on 15 December 2018, being
the time the deceased’s aorta was clamped, she was subjected to at least two
separate beatings by the appellant: one prior to 5:05am on 12 December 2018, and
one between 5:05am on 12 December 2018 and 7:00am on 13 December 2018.
The second beating, being the fatal beating, allegedly involved multiple blows to
the deceased’s head and body causing extensive injuries and, ultimately, her death.
6 The prosecution alleged that the fatal beating comprised numerous
applications of blunt force trauma to the deceased’s head and body, front and back,
and included use of moderate force sufficient to lacerate the liver, and severe force
sufficient to fracture several ribs. It was also alleged that the appellant struck the
deceased with a weapon, either a pole or rod of some description.
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7 The cause of death was determined to be hypoxic-ischaemic encephalopathy
(lack of oxygen and blood flow to the brain) due to prolonged hypotension (low
blood pressure) and hypoperfusion (reduced amount of blood flow) resulting from
laceration of the deceased’s liver and subsequent internal bleeding within the
intra-abdominal cavity (haemoperitoneum).
8 The prosecution case was that the appellant deliberately inflicted the
abovementioned injuries upon the deceased with the intention, at least, of causing
grievous bodily harm or really serious bodily harm resulting in her death.
9 The defence case primarily relied upon the appellant’s evidence at trial. He
admitted that his actions caused the death of the deceased and conceded that they
were, for the most part, deliberate and voluntary. He denied intending to kill the
deceased or inflicting really serious bodily harm upon her.
10 The appellant also called evidence from a forensic psychologist, Mr Richard
Balfour, that the appellant was suffering from an anti-social personality disorder
and post-traumatic stress disorder (‘PTSD’).
11 It was the defence case that the prosecution had not established beyond
reasonable doubt that the appellant had the requisite intent to prove murder, or that
his actions causing the deceased’s death were not in excessive self-defence.
Defence counsel also submitted that the prosecution had not disproved
provocation.
Relationship evidence
12 The relationship between the appellant and the deceased was characterised
by a history of violence. There was evidence from neighbours of hearing
arguments between them. There was also evidence from neighbours and other
witnesses regarding their observations of injuries to the deceased in the months
preceding her death.
13 In particular, the prosecution adduced evidence of an assault by the appellant
on the deceased causing an injury to her foot in June 2018. That evidence included
observations of the injury by a friend of the deceased, messages sent by the
deceased to her former partner including photographs of an injury to her foot, and
an agreed fact as to her attendance at the Queen Elizabeth Hospital on 22 June
2018 for treatment of a wound to her foot.
14 There was also evidence from police officers that on 19 October 2018 the
deceased attended the Mount Gambier Police Station with injuries including a bite
mark to the left side of her neck with teeth imprints still visible, swelling above
her right eye, bruising up and down both of her legs, and extensive bruising to her
arms.
15 On 13 November 2018, police attended the appellant’s premises where the
deceased was observed with bruising to both eyes and a cut to her chin.
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16 On 29 November 2018, police observed the deceased to have bruising to both
her arms.
17 There was evidence of observations of injuries to the appellant by two
separate witnesses, namely, Ms Johanne Launder and Brevet Sergeant Ellis.
However, those observations were less frequent and his injuries less severe than
those observed to the deceased.
18 Text messages between the appellant and the deceased also revealed
volatility and recurring hostility in their relationship. The appellant saved the
telephone number of the deceased under the name ‘Slut gutz.’ The messages also
contained threats by the appellant to hurt the deceased.
19 During an examination of the appellant’s premises on 14 December 2018,
multiple blood-like stains were found throughout the house. Of the 22 swabs taken
from those stains, nine were sent to Forensic Science South Australia for
examination. The results demonstrated that the deceased was either the major
contributor, or the only contributor, to the DNA profile. This evidence supported
the prosecution case that the appellant had been violent towards the deceased on
other occasions prior to the fatal beating.
20 It was the prosecution case that, in the late hours of 6 December 2018, or the
very early hours of 7 December 2018, the appellant physically assaulted the
deceased and, at the time of the fatal beating, she was still suffering from the effects
of that particular assault. That proposition was supported by forensic evidence that
the deceased had sustained numerous injuries that were older than 72 hours
(by reason of the presence of haemosiderin).
21 In proof of the earlier assault, the prosecution also relied on text messages
between the appellant and his sister, Chloe Trussell, including:
On 7 December 2018, the appellant sent a text message to his sister
stating: ‘Hey sis can you come and get this dumb slut out ov my house
iv hurt her anuf an she wont leav I cant do this anymore sis’.
On 9 December 2018, the appellant sent a text message to his sister
asking when she was coming over as he needed Nurofen. Chloe Trussell
replied that Monique (Mitchell) was on her way and she would be at the
house shortly. The appellant sent another message to his sister asking
that she not bring her friend into the house when she came around.
Monique Mitchell gave evidence that she drove Chloe Trussell to the
appellant’s house to take some Panadol to the deceased. She observed
that the deceased had a black eye, but she did not see any marks on the
appellant.
The following morning, on 10 December 2018, the appellant messaged
his sister telling her that the deceased was a bit better, and he did not
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think she needed to go to the doctor. Chloe Trussell asked if the
deceased was up and about. The appellant replied that she had thrown
up a bit that day but not as much as the day before. Chloe Trussell
responded saying ‘glad she’s not throwing up as much tho but need to
think of what to tell the hospital’, and a second message saying ‘Coz I
sware to god if she or any one says you done it I’ll lose my shit’. The
appellant replied saying ‘ill just wait abit first see how she is tomorrow
that all im worryed about to but hope shes ok by tomorrow’. Chloe
Trussell then asked the appellant ‘How can we get this anger under
control?’ The appellant responded that he had medication which had
made it better and he could sort it out.
22 On 12 December 2018, the appellant and deceased attended the premises of
their friends, Ms Jacqueline Tickner and Mr Michael Gacek. Ms Tickner observed
bruises on the arms and legs of the deceased and dark shadows down the side of
her face and under her eye. Ms Tickner and Mr Gacek attended at the appellant’s
premises later that evening at which time the appellant told Ms Tickner the
deceased was laying down inside because she did not feel well.
Prior violence by the deceased to others
23 There was also evidence that the deceased had been violent to a former
partner, Mr Dereck Crouch, during an incident involving their child after they
separated and while their son remained living with his father. On that occasion,
Mr Crouch would not let the deceased leave with their child, so an argument
ensued during which the deceased punched and hit him in the head, and bit him on
the arm. Apart from this incident, their arguments were mostly verbal or minor.
24 Another former partner, Mr Raymond Watson, said that there was no
physical violence between him and the deceased.
Forensic evidence
25 Dr Karen Heath, a forensic pathologist, attended the intensive care unit at the
Royal Adelaide Hospital on 14 December 2018 where the deceased was intubated
and ventilated. The purpose of the visit was to conduct an examination of the
deceased’s body, and to determine the extent and degree of the deceased’s injuries
prior to organ retrieval surgery. Upon examination of the deceased’s body,
Dr Heath noted obvious bruising to the face, upper chest, arms and legs, petechial
haemorrhages, small, superficial punctate lesions on the central and left side of the
deceased’s abdomen, and an apparent superficial wound on her upper left arm.
26 On 15 December 2018, Dr Heath attended the intensive care unit at the Royal
Adelaide Hospital for a second time to observe the surgical removal of the
deceased’s organs. On opening the abdomen, Dr Heath observed bruising to the
anterior abdominal wall, and approximately 1.4 litres of liquid blood and
850 grams of clotted blood present within the abdominal cavity. Dr Heath noted
that the liver was lacerated and a computer tomography scan of the abdomen
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showed that the laceration was accompanied by haematoma (a collection of blood
within the liver) and haemoperitoneum (blood within the abdominal cavity). At the
conclusion of surgery, the deceased’s aorta was cross clamped and the deceased
was declared dead. On 17 December 2018, Dr Heath conducted a post-mortem
autopsy. A pathology report was subsequently prepared by Dr Heath and tendered
at trial.
27 At autopsy, the deceased’s weight was recorded as 53 kilograms and her
height was measured as 163 centimetres.
28 The deceased suffered many injuries, mostly in the form of bruising to her
chest, back, arms, legs, and left side of her chin. These injuries were likely caused
by multiple applications of blunt force trauma. The traumatic injuries observed in
the brain were also consistent with having been inflicted by blunt force trauma to
the head. Several of the deceased’s ribs were fractured by severe force, and her
liver was lacerated as result of moderate blunt force trauma applied to the
deceased’s abdominal region.
29 Dr Heath determined the cause of death to be hypoxic-ischaemic
encephalopathy due to haemoperitoneum as a result of liver laceration. In lay
terms, the cause of death was unsurvivable brain damage due to prolonged
inadequate blood flow and oxygen delivery to the brain, resulting from a laceration
to the liver which caused internal bleeding within the abdominal cavity. Dr Heath
explained that haemorrhage from a liver injury may take a period of hours to
accumulate to a volume sufficient to cause death.
30 Dr Heath could not give an exact time as to when the fatal laceration to the
liver was inflicted but was of the opinion that it would have occurred within hours
of the deceased presenting at the Mount Gambier Hospital at approximately
7:00am on 13 December 2018; ‘not minutes or days.’ On that basis, the
prosecution case was that the fatal injury was inflicted sometime between 5:05am
on 12 December 2018 and 7:00am on 13 December 2018.
31 It was Dr Heath’s evidence that the laceration to the liver was the result of
blunt force trauma applied to the abdomen in the proximity of the liver, which
would have caused the liver tissue to tear and bleed. She could not specify the
precise type of blunt force that would have caused the injury but agreed it was
possible that the laceration could have initially been smaller before increasing in
length as a result of a second application of force to the same region of the body.
However, based on the histology of the liver, Dr Heath did not consider there to
be any evidence that the laceration was caused by two separate applications of
force.
32 Dr Heath gave evidence that symptoms of a liver laceration may include
abdominal pain, weakness, dizziness, and, eventually, a reluctance to move. Other
signs include hypotension (low blood pressure), elevated heart rate, and waning
levels of consciousness.
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33 At the time the deceased presented at Mount Gambier hospital, she was
unresponsive and having an apparent seizure. Her pupils were fixed and dilated;
she had gasping respirations. Her Glasgow Coma Score was six.1 Her blood
pressure and body temperature had dropped and her heart rate was elevated. Such
symptoms, according to Dr Heath, gave a clear indication that the deceased was
‘very, very unwell’. This was confirmed by the results of multiple blood tests,
which indicated the deceased would have been obviously unwell for a period of
time prior to presenting at the hospital.
34 Dr Heath took samples from the majority of the deceased’s 43 injuries for
histological examination. The examination was conducted to provide an estimate
as to when the injuries might have been incurred based on their stage of healing.
Dr Heath referred to this as ‘Histological dating’. The presence of haemosiderin
macrophages indicates that an injury is more than 72 hours old. An exception
would be where there has been a fresh injury atop an old injury, in which case
residual iron in the macrophages may still be present from the old injury. By the
same token, the absence of haemosiderin indicates that an injury is less than
72 hours old. Accordingly, Dr Heath was able to divide the deceased’s injuries into
two categories: those that were inflicted at least 72 hours prior to the deceased’s
death; and those that were inflicted within 72 hours of the deceased’s aorta being
clamped at 5:05 am on 15 December 2018 (‘the recent injuries’). It was the
prosecution case that the injuries with haemosiderin present, being the injuries
sustained outside of a 72 hour period, were the result of an earlier assault by the
appellant upon the deceased that took place either in the late hours of
6 December 2018 or the very early hours of 7 December 2018.
35 In addition to the injury that caused the deceased’s death, being the laceration
to the liver, Dr Heath identified various other recent injuries including: multiple
brain haemorrhages consistent with blunt force trauma to the head; a number of rib
fractures caused by severe blunt force trauma to the chest; and a bruise to the back
of the deceased’s right thigh having the appearance of ‘tram track’. Dr Heath
explained this to mean that the bruise had two roughly parallel lines and an area of
pallor, or clearing, in the middle. It was her evidence that this sort of bruising is
characteristic of an injury inflicted by a rod or bar like instrument.
36 Dr Heath gave evidence regarding the possibility that the liver laceration and
some of the rib fractures were caused by the same broad-based application of force
to the right-hand side of the lower chest and upper abdominal region. She agreed
that a single application of severe force to this region of the body could have caused
several rib fractures on the right-hand side of the deceased’s body whilst also
lacerating the liver; a separate application of severe force to the left side of the
deceased’s body would likely have been required to cause the left-hand rib
fractures.
1 The minimum it can be is three.
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37 Dr Heath gave evidence that the number and distribution of the recent injuries
excluded as a reasonable possibility that they were all self-inflicted or all resulted
from a fall. In cross examination she agreed it was possible that some of the injuries
could have resulted from the deceased being pushed and then subsequently falling
onto something. She also agreed that a fall might cause a liver injury and could not
say with any certainty how the liver injury was inflicted.
Toxicology
38 Pharmacologist, Professor Jason White, gave evidence as to the effects of
various drugs detected in the appellant’s system. Urine and blood samples were
collected from the appellant at around 7.35pm on 13 December 2018. They were
analysed by Professor White and a report was subsequently tendered at trial.
39 An analysis of the urine sample revealed the presence of
methylamphetamine, amphetamine, mirtazapine, metoclopramide, olanzapine,
nortriptyline, and 11-nor-9-carboxy-∆9-tetrahydrocannabindol (‘carboxy-THC’).
40 An analysis of the blood sample revealed the presence of the following drugs:
methylamphetamine at 0.010 mg/L; mirtazapine at 0.038 mg/L; metoclopramide
at 0.023 mg/L; and carboxy-THC at 23 ug/L.
41 In relation to methylamphetamine detected in the appellant’s system,
Professor White gave evidence that he could not say when the appellant last
consumed that drug. He said that if the appellant was an occasional or regular user,
who only ingested relatively small amounts at a time, he may have consumed it
within 24 hours of having his blood and urine samples collected; if he was a heavy
user, it was likely to have been consumed more than 24 hours prior to this.
Professor White gave evidence that, assuming the appellant was a heavy user of
methylamphetamine, the direct effects upon him would have been minimal.
However, if the appellant had consumed a large concentration of
methylamphetamine in the days prior to having his blood sample taken, it is
possible he may have been experiencing rebound effects. This occurs when the
concentration of methylamphetamine in a person’s system declines to a point
where they start to experience fatigue, irritability, and a depressed mood.
42 Professor White further explained that some of the effects of
methylamphetamine may possibly continue for periods long after the main effects
of the drug have subsided. These can be broadly classed as persistent effects such
as insomnia, paranoia, hallucinations, and delusions. Professor White said that it
is possible for a person to experience both persistent and rebound effects
concurrently.
43 Professor White also gave evidence that the presence of the therapeutic drug
olanzapine in the appellant’s urine, but not in his blood, indicates that it was last
consumed a few days prior to the appellant’s blood being taken. Olanzapine is a
prescription anti-psychotic drug used for the treatment of schizophrenia and
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bipolar disorder; it has the potential to negate some of the psychotic effects of
methylamphetamine.
44 A toxicology report was also prepared in relation to the deceased. The
following drugs were detected in the deceased’s ante-mortem blood:
gamma-hydroxybutyrate (‘GHB’); mirtazapine (consistent with non-toxic
concentrations); metoclopramide (consistent with non-toxic concentrations);
carboxy-THC; and ibuprofen. There was no alcohol detected in the deceased’s
ante-mortem blood.
45 GHB, also known as fantasy or liquid ecstasy, is often used recreationally for
its euphoric and sedative properties. The effects of GHB taken at a low dose
include disinhibition and increased activity, and at a high dose include sedation
and a lack of coordination. Professor White considered the level of GHB in the
deceased’s system was not particularly high and was unlikely to have had a
significant effect on her.
46 Professor White gave evidence that GHB is readily absorbed after oral
administration and is rapidly metabolised. Thus, it is usually only detectable in a
person’s blood sample for up to six hours after consumption; it is not detectable
after 12 hours. However, given that GHB is metabolised quickly, the concentration
could have been two or three times higher if the sample was taken even one hour
earlier. Professor White said that if the drug was consumed three hours earlier, it
was reasonable to conclude she would have been experiencing its effects.
The appellant’s police interview
47 Police interviewed the appellant on 13 December 2018. During the interview,
he told police that he was in a relationship with the deceased for two and a half
years, and he described them as having ‘normal … relationship problems.’
48 As to the evening of 12 December 2018, the appellant said he went to bed at
about 9.00pm and woke up at about 4.00am. The deceased was returning to bed
after having had a bath. They began arguing in the lounge room where they had
slept the previous night. He described the morning as ‘pretty much the last straw’.
They argued from 4.00am to 6.00am. He said the argument started over the topic
of Facebook and ‘pathetic stuff’ including mobile phones and talking to another
male.
49 The appellant initially denied assaulting the deceased and said that he tried
to walk away but she would not let him leave. He described a lot of pushing and
shoving and said he asked her to leave. He said, ‘she done, pretty much the rest
herself.’ He described the deceased headbutting the doors, walls, and floors of the
house, grabbing knives and putting them to her neck, pulling her hair out, and
biting him in an attempt to incite a reaction.
50 The appellant told police that he tried to do everything he could to stop her
from hurting herself. He said he was trying to walk away and calm himself down
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because he has bi-polar and schizophrenia. He said that he likes to ‘go and chill
out for five minutes, come back and then talk about things’ but she just kept ‘being
in [his] face’ so he pushed her, and she fell to the ground. He said this happened
in the kitchen where it was dark. He did not know if she had bumped her head. He
said that he went back into the lounge room and had a cigarette and then when he
looked over he saw that she was on the floor ‘fitting’. He picked her up and put
her on the bed again to make sure that she was alright. He gave her a cup of water
and then put her in the shower.
51 The appellant told police that he rang his friend, Michael, who drove them to
his sister’s house because he wanted her help. When he got to his sister’s house,
they took the deceased straight to hospital.
52 The appellant spoke of ‘another little argument’ that occurred the previous
night during which the deceased stabbed herself in the head with a pair of scissors.
He also described another occasion that he said had happened a while ago where
she held a knife against her own neck. He explained that he managed to grab the
knife from her, they pushed each other, she slapped him, and he went into the
lounge room. She then went to get another knife and the appellant kicked her in
the leg to stop her. This caused her to fall to the ground.
53 During the police interview, the appellant denied assaulting the deceased on
the morning before her death. He said he might have pushed her and grabbed her
around the neck but ‘that was it.’ He denied hitting her or ‘anything like that.’
The appellant’s injuries
54 The appellant was medically examined at Mount Gambier Hospital on
13 December 2018, in the presence of police. His injuries were photographed by
police. The appellant was also examined at the Mount Gambier police station at
about 9.30pm that evening. Further photographs were taken during that
examination. It was noted that the appellant had an injury underneath the area of
his left nipple and that he claimed that it was ‘a bite mark, older injury’. When
asked by police if there were any marks or injuries about which he was concerned,
the appellant did not refer to any other injury, nor were any other injuries apparent.
The defence case
55 As noted above, the appellant gave evidence in his own defence and called
evidence from a forensic psychologist, Mr Richard Balfour.
The appellant’s evidence
56 In evidence, the appellant said that, as a child, both he and his mother were
subject to violent abuse at the hands of his father and on more than one occasion
he had witnessed his father being violent towards his mother.
57 The appellant described suffering from mental health conditions and taking
medication, namely mirtazapine, for anxiety and depression, and zyprexa for
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bipolar disorder and minor schizophrenia. He said that as a result of his diagnosed
schizophrenia he would ‘misinterpret things that were happening sometimes’ and
that he would become paranoid about being hurt.
58 The appellant gave evidence that his arguments with the deceased became
more serious towards the end of 2017 and, at times, were physical. He admitted
sending the deceased ‘nasty’ text messages in the past, which he claimed was an
attempt to prevent their relationship from ‘starting again’. However, he denied
using similar language during their verbal arguments.
59 The appellant said that on most occasions it was the deceased who would
start verbal arguments and instigate physical violence, but he admitted that there
were times when he would initiate the violence. He also admitted to occasionally
punching, tripping, and slapping the deceased.
60 The appellant agreed that he was physically stronger than the deceased. When
asked why he would resort to violence, he said that he felt threatened and was
attempting to defend himself. The appellant denied hitting the deceased in other
circumstances; he would only do so in attempting to stop her from attacking him.
The appellant denied ever hitting the deceased with a weapon or object of any sort.
He also denied that he ever intended to hurt the deceased.
61 The appellant gave evidence that typically the deceased would start a
physical altercation by pushing and scratching him and then progress to kicking
him in the testicular region. He described an incident about six months prior to her
death where he was sitting on the couch and the deceased jumped on him and
pushed his head into a window frame causing his head to split open slightly. He
explained that this argument concerned a dispute about ‘[g]eneral stuff like drugs,
money, deleting pictures out of phones and stuff like that.’
62 In relation to the evening of 6 December 2018, the appellant admitted that he
argued with the deceased and that there was a physical altercation but denied that
he was the aggressor. He agreed the deceased was ‘sick’ for a number of days after
this altercation and that he was worried about her but denied knowing what caused
her reaction. He said he told the deceased she should go to hospital, but he did not
take her there himself because he did not have a driver’s licence at the time. He
agreed he could have called her a taxi.
63 The appellant agreed that on 7 December 2018, he sent a text message to his
sister, which said ‘iv hurt her anuf and she wont leav.’ He said that his reference
to having hurt the deceased meant he had hurt her enough mentally and physically.
64 The appellant gave evidence regarding his drug use. He admitted to using
methylamphetamine (which he referred to as ‘ice’) 24 hours before the deceased
was admitted to hospital on 13 December 2018. He said that the deceased was also
using methylamphetamine in the week leading up to her death. The appellant also
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admitted to smoking cannabis on the morning of the 13 December 2018, both
before and after taking the deceased to hospital.
65 As to the morning of 13 December 2018, the appellant said that he woke
between approximately 4:00am and 5:00am to find the deceased walking out of
the bathroom holding his phone. She was unclothed. He explained that the previous
night he and the deceased had slept on a mattress in the lounge room. He recalled
asking the deceased what she was doing with the phone and when she would not
give him a definitive answer, he assumed that she was hiding something. He agreed
that this made him angry which caused him to start yelling at her, but he denied
starting the argument. He said the deceased became upset with him because he
‘kept on accusing her of stuff that she was declining that she was doing.’
66 The appellant said they continued to argue for a while before the deceased
started hitting and scratching him when he asked her to leave. He said there was a
lot of ‘pushing, punching and fighting and stuff like that, biting, scratching’ but
that it was the deceased who pushed him first. He agreed that he retaliated by
pushing her back. He admitted to hitting and physically handling the deceased but
denied that he attacked her or intended to hurt her.
67 The appellant said that he did not tell police about injuries he claimed to have
sustained from attacks by the deceased because he did not want to get her into
trouble.
68 The appellant suggested some of the injuries sustained by the deceased were
self-inflicted. He described the deceased falling to the ground of the kitchen in a
tantrum, hitting herself in the head, and biting herself on her left arm. At this point,
the appellant said he tried to leave the kitchen, but he was prevented from doing
so by the deceased hitting him and telling him not to leave. In response, the
appellant said he turned around and pushed her so that she was facing away from
him and then shoved her firmly into the fridge causing her to fall to the ground. He
said he did this to get away from her rather than hurt her. He denied that he intended
to push her into the fridge; he said he was only trying to push her away from
himself.
69 The appellant said that after pushing the deceased into the fridge, he walked
into the lounge room, at which point he heard the deceased having a ‘seizure’ on
the kitchen floor. He gave evidence that he thought she was pretending as she had
done this before to stop arguments. It was only after smoking a cigarette (and
some cannabis) and returning to the kitchen to find the deceased still convulsing
on the floor, that the appellant began to think the situation was ‘pretty serious.’ At
this point, the appellant picked the deceased up off the floor, carried her into the
lounge room and placed her onto the mattress. She remained unresponsive so the
appellant picked her up again and took her to the shower and began to run cold
water over her.
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70 The appellant gave evidence of dropping her on two occasions as he carried
her to the bathroom: once as he entered the bathroom; and a second time in the
bathroom when attempting to place her on the shower floor. He described the
deceased’s leg falling over the bathtub as she fell on her back. Once she stopped
convulsing, the appellant decided to take her to the hospital (via his sister’s house)
as she was still unresponsive. The appellant admitted he was concerned for her
health and safety at this point but maintained he did not know the seriousness of
her medical situation.
71 The appellant agreed that his actions caused the deceased’s death but denied
that it was his intention to cause her really serious bodily harm. He denied using a
stick or pole (or any item of a similar nature) to hit the deceased. He denied that
some of the blows he inflicted on the deceased were severe enough to fracture her
ribs or lacerate her liver.
Lies
72 In evidence, the appellant admitted to giving a dishonest account in his police
interview as to the severity of physical violence that had occurred between himself
and the deceased on the morning of 13 December 2018. He claimed this was
because of his fear of being incarcerated, and as a result of being under the
influence of drugs at the time. The appellant admitted that he lied when he said
that Michael drove him and the deceased to his sister’s house, and he did so
because he did not have a driver’s licence at the time. He also admitted that during
the police interview he did not say the deceased had attacked him. He claimed that
his failure to do so was because he did not wish to get her into trouble. He also
agreed that he did not tell police that he pushed the deceased into the fridge or that
he dropped her while carrying her to the bathroom. He provided no explanation
for those latter omissions.
The evidence of Mr Balfour
73 Mr Balfour, a forensic psychologist, assessed the appellant during the course
of the trial after an adjournment was granted for that to occur. In evidence,
Mr Balfour said that he diagnosed the appellant with an anti-social personality
disorder, and post-traumatic stress disorder (PTSD) precipitated by severe
domestic violence and abuse experienced as a child. Mr Balfour explained that the
symptoms of these disorders include hypervigilance, hyperarousal, and a tendency
to become physically violent in moments of conflict. He added that the appellant
has a lower threshold to become overwhelmed by his feelings, which can lead to
anger and behavioural aggression. That is, in layman’s terms, he has a ‘short fuse.’
74 Mr Balfour agreed that the appellant does not have a mental incompetence
defence and his diagnosis of the appellant does not mean that he would not
appreciate that he was acting violently in a particular situation. Mr Balfour agreed
that the appellant was capable of deliberate and calculated violence toward others.
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Issues at trial
75 There was no dispute that the relationship between the appellant and the
deceased was volatile and, on occasion, involved physical violence. However, the
nature and extent of past physical violence, and by whom it had been instigated,
was the subject of contest between the parties.
76 The forensic cause of the deceased’s death was not in dispute. It was also
common ground that on the morning of 13 December 2018, the appellant and the
deceased were engaged in a verbal and physical altercation during which she
sustained a liver injury resulting in her death.
77 On the prosecution case, the appellant had inflicted a sustained and violent
beating on the deceased during which he inflicted the fatal liver injury, as well as
other blows resulting in serious injuries to the deceased including bruising,
subdural and subarachnoid brain haemorrhages, and rib fractures.
78 The appellant denied that he inflicted such a violent beating. Whilst admitting
that there was a verbal and physical altercation that morning during which he
pushed the deceased causing her to fall into the fridge and dropped her on two
occasions whilst carrying her to the bathroom, he denied having inflicted the
majority of her injuries.
79 The appellant also denied instigating the physical aspect of their
confrontation. He alleged that the deceased was the aggressor, and claimed that he
was acting in self-defence in inflicting any injury to her (albeit, whilst conceding
that his actions were not reasonably proportionate to the threat he faced). The
circumstances in which the deceased’s injuries were sustained, and the nature and
extent of his physical violence to the deceased that morning, was a factual matter
in dispute at trial.
80 Thus, the following matters were in issue:
Whether the prosecution had established that the appellant had inflicted
the fatal liver injury and the appellant’s specific intention to cause really
serious bodily harm;
Whether the prosecution had disproved that the appellant was acting in
excessive self -defence. That is, whether the prosecution had proved
that the appellant did not believe that it was necessary and reasonable
to inflict the injuries to the deceased to defend himself. As outlined
earlier, the appellant accepted that his actions were not reasonably
proportionate to the threat that he believed to exist (hence, his guilty
plea to manslaughter by excessive self-defence); and
Whether the ‘partial defence’ of provocation arose on the evidence and,
if so, whether the prosecution had negatived provocation beyond
reasonable doubt.
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The trial Judge’s reasons for verdict
81 In her reasons for verdict, the trial Judge outlined the evidence adduced at
trial, the elements of the offence, the parties’ respective cases, and counsels’
submissions in similar terms as recounted above.
82 In relation to circumstantial evidence, her Honour noted that an inference of
guilt must be the only rational conclusion which could be drawn from the
established facts. To that end, her Honour gave a direction that the appellant’s guilt
was not established unless the evidence excluded, beyond reasonable doubt, any
plausible hypothesis consistent with the appellant’s innocence; and it was not for
the appellant to prove his innocence or to establish that an inference other than
guilt could be reasonably drawn from the evidence.
83 Her Honour noted that the prosecution did not rely upon lies told by the
appellant in his police interview as evidence of a consciousness of guilt. Rather,
they were only relevant to an assessment of his credibility.
84 The trial Judge set out the evidence adduced by the prosecution including:
Dr Heath’s evidence as to the autopsy findings; the crime scene investigation and
DNA comparisons extracted from blood stains; Professor White’s evidence as to
the toxicology results of the appellant and deceased; and evidence (as to the
volatility and violent nature of their relationship) from acquaintances, friends, and
neighbours (including exchanges via text message).
85 The trial Judge provided a detailed summary of the defence case. As to the
appellant’s evidence, the trial Judge accepted that his childhood was dysfunctional
and ‘punctuated by violence perpetrated by his father against him and his mother.’
More broadly, however, her Honour found the appellant’s evidence unconvincing
and lacking in specificity. It was accepted that the verbal altercation preceding the
deceased’s admission to hospital started (as he described) because he was angry
that she was awake and on the phone. From that point, her Honour found that the
appellant:2
downplayed the level of violence he engaged in and tailored his evidence to bolster his
version of events that Ms Kennett started the physical altercation in the early hours of
13 December 2018, that she self-harmed, accidentally fell and he acted in self-defence.
86 Her Honour rejected the appellant’s evidence regarding the level of violence
he inflicted upon the deceased in the past and as to what occurred on the morning
of her death.
87 The trial Judge reminded herself that even if she did not accept the appellant’s
evidence regarding the altercation in the early hours of 13 December 2018, a
verdict of not guilty must follow if there was a reasonable possibility that his
evidence was true. Her Honour directed herself that if she rejected the appellant’s
2 R v Trussell [2021] SASC 106 at [315] per Bampton J.
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evidence, she must put it to one side and consider whether the prosecution has
proved the offence beyond reasonable doubt.
88 In relation to the psychological evidence of Mr Balfour, the trial Judge
accepted his evidence but found it to be of ‘limited assistance’ in providing an
explanation for the appellant’s physically violent behaviour toward the deceased.
Her Honour said that the evidence ‘may explain why Mr Trussell behaved in the
way he did, however, it does not provide Mr Trussell with a legal defence to the
charge of murder.’
89 The trial Judge made the following factual findings as to the circumstances
established by the evidence:
The appellant and the deceased were living together as at 13 December
2018.
Their relationship was dysfunctional, unstable, and domestically
violent.
Witnesses variously observed bruises and/or black eyes on the deceased
in mid-2018, October and November 2018, and during the week before
13 December 2018.
A physical altercation occurred either in the late hours of
6 December 2018 or very early hours of 7 December 2018.
The deceased was unwell on 9 December and 10 December 2018 and
feeling unwell when the Tickner/Gacek household came to visit on
12 December 2018.
The appellant was angry about the deceased being out of bed and on his
phone when he woke on 13 December 2018.
The appellant got out of bed and confronted the deceased in the kitchen.
He was angry because she was not telling him what she was doing. A
verbal argument took place. He wanted her to leave, but she did not
want to go. A physical altercation ensued.
The appellant engaged in the fatal beating, inflicting blows on the
deceased causing severe and serious injuries.
The fatal beating consisted of multiple applications of force to the head
and body, front and back, and included the use of moderate force
sufficient to lacerate the liver and severe force sufficient to fracture ribs.
A rod-like instrument was used to inflict at least the tram-track injury,
being injury 42.
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The laceration to the deceased’s liver was caused during the fatal
beating by the appellant.
The laceration to the liver occurred within hours prior to the deceased
presenting at the Mount Gambier hospital.
The pattern of distribution and number of injuries, as described by
Dr Heath in her evidence, excludes as a reasonable possibility the
injuries were self-inflicted or resulted from an accidental fall.
The pattern of distribution and number of injuries excludes as a
reasonable possibility the injuries being consistent with anything other
than a severe beating.
At the time the fatal beating was inflicted, the deceased had obvious
bruising and black eyes sustained in an earlier physical altercation(s).
Ms Patricia Considine, a neighbour of the appellant, described hearing
the appellant yelling from his premises between 5:30am and 6:00am on
13 December 2018. She did not hear the deceased.
The appellant drove the deceased to his sister’s house before taking her
to hospital.
The deceased appeared unconscious and ‘extremely unwell’ in the
footage taken at the time of her presentation at the Mount Gambier
hospital.
No recent or defensive injuries were identified on the appellant’s body
following his arrest.
The cause of the deceased’s death was hypoxic-ischaemic
encephalopathy due to prolonged hypotension and hypoperfusion of the
brain resulting from laceration of the liver and haemoperitoneum.
There would not have been any strong direct drug effects occurring and
affecting the appellant in the late hours of 12 December 2018, or the
early hours of 13 December 2018.
There is no reasonable possibility that in subjecting the deceased to a
severe beating during which he caused the liver injury the appellant did
not intend to cause really serious bodily harm.
The appellant’s specific intent
90 As to proof of the appellant’s specific intention, the trial Judge found beyond
reasonable doubt that at the time he inflicted the fatal liver injury, he intended, at
the very least, to inflict really serious bodily harm.
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91 In particular, the trial Judge found (consistent with the appellant’s evidence):
on the morning of 13 December 2018, the appellant was angry about the deceased
being out of bed and on his phone; he got out of bed and confronted the deceased
in the kitchen; a verbal argument took place; he wanted her to leave, but she said
she did not want to go; and a physical altercation took place. However, the trial
Judge rejected the appellant’s evidence as to his physical actions on that morning.
Her Honour found that the appellant inflicted multiple blows on the deceased
causing the recent injuries. The trial Judge found that the pattern of distribution
and number of injuries excludes as a reasonable possibility that: (a) the injuries
were self-inflicted or resulted from an accidental fall; and (b) the injuries were
consistent with anything other than a severe beating.
92 The trial Judge had regard to the number of injuries sustained by the deceased
within 26 hours prior to her admission to hospital including: the application of
moderate force to lacerate her liver; the application of severe force to fracture the
ribs; and the use of a rod like implement to cause at least one of the deceased’s
injuries. With that in mind, her Honour found that the appellant inflicted violent
blunt force trauma to the deceased.
93 The trial Judge then turned her mind to whether the evidence raised any
doubt as to whether an inference should be drawn that the appellant intended to
cause really serious bodily harm. Her Honour found that the deceased sustained
too many injuries for there to be a reasonable possibility that the appellant did not
appreciate that his actions ‘could’ cause really serious bodily harm. Her Honour
went on to say:
There is no reasonable possibility that in subjecting Ms Kennett to a severe beating during
which he caused the liver injury he did not intend to cause really serious bodily harm.
94 Her Honour outlined her findings as to the factual circumstances established
by the evidence (as set out above).
95 Her Honour then concluded beyond reasonable doubt that at the time the
appellant inflicted the fatal liver injury, he intended, at the very least, to inflict
really serious bodily harm.
Manslaughter by excessive self-defence
96 The appellant’s guilty plea to manslaughter by excessive self-defence was on
the basis that his actions in pushing the deceased into the fridge caused her death.
The appellant’s case was that he genuinely believed his conduct was necessary and
reasonable for a defensive purpose. However, it was conceded by defence counsel
on his behalf (and by reason of his guilty plea to manslaughter) that his conduct
was not, in the circumstances as he genuinely believed them to be, reasonably
proportionate to the threat.
97 As outlined above, whilst her Honour accepted the evidence of the appellant
and others as to the violent nature of the relationship between himself and the
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deceased, she rejected the appellant’s evidence regarding his actions, and the
severity of violence he had engaged in towards the deceased in the past and on the
morning of 13 December 2018. In those circumstances, and by reference to her
factual findings summarised above, the trial Judge considered that excessive
self-defence did not arise on the facts as she found them. However, her Honour
proceeded to consider the issue assuming, contrary to her findings, that it did arise
on the evidence.
98 In considering self-defence, her Honour referred to Mr Balfour’s opinion that
the appellant ‘would misperceive threat situations and potentially overestimate the
level of risk’, and if required ‘he could become physically violent to deal with the
conflict or threat’. In that context, the trial Judge also considered Mr Balfour’s
evidence that the appellant’s psychological disorders:
… exacerbate his emotional control, so there’s two parts. He can think that he doesn’t like
someone, and wants to harm them, for whatever motive, that’s psychological motive but
he has the added burden that he gets angry very quickly and into that reactive anger, the
blind rage.
99 The trial Judge referred to the appellant’s contention that:
… the evidence of Mr Balfour regarding his psychological background and the
consequences of that background is directly relevant to the question of whether he
genuinely believed that his conduct during the final push was necessary and reasonable in
defending himself.
100 The trial Judge found that the appellant’s anger about the deceased being
awake, on his phone and denying she was doing anything wrong caused him to
‘spontaneously decide to act out violently in that situation.’
101 Her Honour referred to the appellant’s version of events and found that at the
time he inflicted the fatal injury, there was no threat to him, and nothing to defend
himself against.
102 Her Honour rejected defence counsel’s submission that the deceased was the
instigator of the physical altercation and made a finding that ‘Mr Trussell was the
original aggressor; Ms Kennett may have responded to his anger and verbal attack
physically, however, he willingly engaged and held the upper hand.’
103 The trial Judge reasoned that the appellant had sustained no injury which
might support an inference that he had been under attack. Her Honour referred to
photographs of the appellant depicting a strong, fit-looking man and, noting the
discrepancy in physical stature between the deceased and the appellant, accepted
the prosecution submission that size difference alone rebutted any suggestion that
the appellant genuinely believed his actions were necessary for a defensive
purpose. Accordingly, her Honour found that the prosecution had proved beyond
reasonable doubt that the appellant did not genuinely believe his conduct was
necessary and reasonable to defend himself.
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Manslaughter by provocation
104 After finding that the appellant had formed the specific intention to cause
really serious bodily harm and finding that the prosecution had negatived excessive
self-defence, the trial Judge turned to consider the partial defence of provocation.
Her Honour noted defence counsel’s contention that the provocative conduct is to
be found in the appellant’s evidence that he was attacked by the deceased in a
relentless manner such that she would not let him leave the kitchen.
105 Having rejected the appellant’s evidence regarding the level of violence
engaged in by the deceased, the trial Judge found that the partial defence of
provocation did not arise. However, her Honour proceeded to consider the issue
assuming, contrary to her findings, that the deceased’s conduct was provocative.
In doing so, her Honour considered both the subjective and objective limbs of the
partial defence of provocation.
106 As to the subjective limb, the trial Judge considered there to be no evidence
that the deceased caused the appellant to suffer a sudden or temporary loss of
self-control such that he was deprived of that self-control when he inflicted the
fatal liver injury.
107 In reaching that conclusion, her Honour noted that the appellant did not give
evidence that he lost control as a result of his verbal altercation with the deceased
or that he was in fear or panic. Rather, her Honour considered that the effect of the
appellant’s evidence was that he held the ‘upper hand throughout’.
108 In effect, the trial Judge found that even accepting the appellant’s evidence
as to the events which preceded the fatal injury, it was not a reasonable possibility
that the appellant lost control because of the alleged provocative conduct of the
deceased and inflicted the fatal liver injury whilst deprived of his self-control.
109 In relation to the objective limb of the partial defence, the trial Judge correctly
said that ‘the gravity of the provocative conduct must be assessed by reference to
the relevant characteristics of Mr Trussell, and the background of his relationship
with Ms Kennett.’ Her Honour had regard to the traits and characteristics of the
appellant identified by Mr Balfour and assessed the gravity of the alleged
provocation against those traits and characteristics, and in the context of his
volatile relationship with the deceased.
110 The trial Judge then turned to consider how a person of the appellant’s age
might react to the alleged provocation, assuming they had ordinary powers of
self-control.
111 The trial Judge did not accept as a reasonable possibility that an ordinary
person would have been provoked by the alleged provocation to the point of having
formed an intention to kill the deceased or cause her really serious bodily harm,
and act on that intention.
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112 The trial Judge instead found that ‘the prosecution had proved that an
ordinary person exposed to the same provocation as [the appellant] would not have
lost their self-control, formed an intention to kill or cause really serious bodily
harm, and acted on that intention.’ The trial Judge found that the prosecution had
disproved the partial defence of provocation beyond reasonable doubt.
113 The trial Judge found the prosecution had proved all elements of the offence
of murder beyond reasonable doubt and found the appellant guilty of murder.
Grounds of appeal
114 Ground 1 alleges that the trial Judge’s reasons were inadequate regarding her
Honour’s findings in relation to the following matters: that the appellant formed a
specific intent to cause grievous bodily harm to the deceased; that the partial
defences of excessive self-defence and provocation did not arise for consideration;
or, if they did arise, had been disproved by the prosecution.
115 Ground 2 complains that the trial Judge failed to ‘bring to account’ the
deceased’s ‘violent propensity’ when resolving various factual disputes and in
making determinative findings.
116 Grounds 3 and 4 challenge the trial Judge’s approach in reaching her findings
as to excessive self-defence and provocation, respectively.
117 Grounds 1 and 2 are directed towards a complaint that the trial Judge’s
reasons are inadequate whereas Grounds 3 and 4 allege, in effect, an erroneous
approach of reasoning in relation to the issues of self-defence and provocation.
However, at the appeal hearing, and in written submissions, there was a tendency
to merge the complaints between inadequate reasons and inadequacy of reasoning
due to an overlap in the arguments put in support of all grounds. It is necessary,
however, to be clear that there is a difference between the complaints. A complaint
of inadequate reasons involves a submission that it is not possible to discern how
the judge arrived at their determinative conclusions or findings.3 That is to be
distinguished from an allegation as to inadequacy of reasoning, where it is
contended that a trial Judge’s reasoning, although apparent, does not properly
support or justify their findings and ultimate verdict.4
118 It is convenient to commence with Grounds 3 and 4 which are directed
towards a complaint as to an erroneous approach to the issues of self-defence and
provocation, and allege inadequacy of reasoning.
Ground 3 – Alleged error in ‘excluding’ self-defence
119 The appellant contends that the trial Judge erred in her directions on
self-defence. However, this complaint appears to, in fact, challenge the trial
3 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at [18] per Gray J (with whom Fullager and Tadgell
JJ agreed).
4 R v Sexton [2018] SASCFC 28 at [177] per Kourakis J; JGS v The Queen [2020] SASCFC 48 at [205]
per Lovell J.
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Judge’s approach to the issue. Specifically, under this ground, the appellant
complains that the trial Judge:
a. ‘excluded’ excessive self-defence without considering the whole of the
evidence and the submissions of counsel;
b. erred in finding that excessive self-defence did not arise in circumstances
where there was material in the case that required it to be excluded;
c. erred in her approach to, and reliance upon, ‘willing engagement’ and
having the ‘upper hand’ without determining the issue in accordance with
s 15(2) of the CLCA; and
d. reasoned erroneously in finding that the ‘size difference alone’ between
the appellant and the deceased rebutted the defence of excessive
self-defence.
120 The appellant also complains that the trial Judge reversed the onus of proof
in considering this issue.
121 The law governing self-defence is set out under s 15 of the CLCA, which
provides:
15—Self defence
(1) It is a defence to a charge of an offence if—
(a) the defendant genuinely believed the conduct to which the charge relates to be
necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed
them to be, reasonably proportionate to the threat that the defendant genuinely
believed to exist.
(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter)
if—
(a) the defendant genuinely believed the conduct to which the charge relates to be
necessary and reasonable for a defensive purpose; but
(b) the conduct was not, in the circumstances as the defendant genuinely believed
them to be, reasonably proportionate to the threat that the defendant genuinely
believed to exist.
122 In the present case, the appellant only relied on the partial defence of
excessive self-defence set out under s 15(2) of the CLCA.
123 The first limb in s 15(2)(a) of the CLCA requires the prosecution to disprove
that the defendant held a subjective genuine belief that the conduct was necessary
and reasonable for a defensive purpose. The second limb in s 15(2)(b) of the CLCA
concerns objective disproportionality and requires the prosecution to prove the
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conduct was not, in the circumstances as the defendant genuinely believed them to
be, reasonably proportionate to the threat that the defendant genuinely believed
existed. In this section, the word ‘but’ serves as a conjunction. Accordingly, if the
prosecution disproves limb (a), that will be sufficient to negative self-defence.
124 The prosecution is required to negative self-defence beyond reasonable doubt
if it is raised on the evidence.5 In the present matter, the trial Judge was required
to consider whether self-defence arose on the evidence and, if so, whether the
prosecution had disproved self-defence beyond reasonable doubt.
125 In the context of a challenge to directions on self-defence, in a trial by jury,
Nicholson J stated in Penhall v The Queen:6
A trial Judge is obliged to direct the jury with respect to any defence or partial defence
raised by the evidence. This is so even where counsel for the defence has made a forensic
decision not to pursue a particular defence and asks that it not be left. The fact that an
obligation in this respect rests with the Judge recognises the Judge's role in ensuring
fairness to an accused and, in particular, in the context of the forensic challenge for a
defence counsel in actively pursuing two defences that may be seen as, at least in part,
factually inconsistent. In the case where there is evidence raising both defensive purpose
and provocation an accused should not be deprived of the possibility of a manslaughter
verdict based on the latter simply because he or she has elected or been advised, tactically
or for some other reason, to pursue a complete acquittal as a consequence of the former
which has failed. The obligation arises even where an accused does not give any evidence
in support of the provocation defence or indeed positively denies loss of control, provided
the defence arises on the basis of other evidence in the case. This is especially so where the
nature of the preferred defence might account for the falsehood.
(citations omitted)
126 In relation to contentions (a) and (b) under this ground of appeal, the
appellant submits that excessive self-defence was raised on the whole of the
evidence and was therefore required to be disproved by reason of the following:
a. the appellant’s evidence;
b. the evidence of the deceased’s violent propensity, including evidence
adduced at trial from civilian witnesses as to their observations of
previous mutual violence between the appellant and the deceased,
injuries sustained by the appellant, and evidence of violence by the
deceased to a former partner; and
c. the evidence of Mr Balfour, in particular that the appellant had a limited
ability to cope with conflict and ‘would misperceive threat situations and
potentially overestimate the level of risk’ and, if required, ‘he could
become more physically violent to deal with the conflict or threat.’
5 Criminal Law Consolidation Act 1935 (SA) s 15(5).
6 [2020] SASCFC 58 at [41] per Nicholson J.
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127 The appellant further contends that the trial Judge rejected the appellant’s
evidence on the basis that it was ‘unconvincing’ without properly considering it in
the context of other evidence adduced on the prosecution and defence cases,
including the deceased’s propensity for violence and the evidence of Mr Balfour.
It was argued that the other evidence was relevant in assessing the credibility and
veracity of the appellant’s account, and, in considering who initiated the physical
alteration, the appellant’s appreciation of the danger he faced and the genuineness
of his belief that his conduct was necessary. This contention overlaps with appeal
Ground 2.
128 The appellant contends that the trial Judge erred by treating the appellant’s
evidence as determinative of the issue; that is, upon rejecting his evidence the trial
Judge found that excessive self-defence was not raised, and in any event disproved,
without considering the evidence of the deceased’s propensity for violence and the
psychological evidence Mr Balfour.
129 We do not agree that the trial Judge found that self-defence did not arise
without considering the whole of the evidence. In her reasons for verdict, the trial
Judge expressly referred to the appellant’s submissions on excessive self-defence
including:
the evidence from civilian witnesses as to the deceased’s violence
meant that it was not possible to discount the hypothesis that she
instigated the physical fight;
that the evidence of Mr Balfour as to the appellant’s ‘psychological
background’ was directly relevant to his state of mind and whether he
‘genuinely believed the conduct to which the charge relates to be
necessary and reasonable’ for a defensive purpose;
that on the appellant’s case, his actions in pushing the deceased were
the basis for his guilty plea to manslaughter by excessive self-defence;
and
the appellant’s evidence that the deceased instigated the physical
altercation and was capable of causing injury to him by biting,
scratching, punching, and kicking him in the groin, and that if he
genuinely believed there was a risk that she could ‘kick him in the groin
and testicles’ then he is genuinely acting in self-defence.
130 The trial Judge also undertook a detailed analysis of the evidence and made
factual findings as to the circumstances in which the appellant inflicted the fatal
injury. The factual findings relevant to this ground of appeal include:
A rejection of the appellant’s evidence regarding the level of violence
he inflicted upon the deceased. Whilst the trial Judge could not exclude
the possibility that the appellant and the deceased had in the past
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engaged in mutual physical violence, she considered that the deceased
engaged in far less significant verbal abuse than the appellant, and that
‘the same disparity applied to the physical violence they each engaged
in.’ The trial Judge also found that the appellant had hurt the deceased
mentally and physically on 6 or 7 December 2018.
That the appellant’s evidence of arguments and physical conflict did not
account for the nature and severity of injuries sustained by the deceased
within 26 hours of her admission to hospital.
That the appellant reacted to his anger rather than any threat posed by
the deceased; he was upset she was on the phone.
That the appellant ‘willingly engaged and had the upper hand in the
“pushing, punching and fighting”’. In reaching that finding her Honour
referred to the absence of any recent injuries to the appellant, and,
having regard to the evidence of Dr Heath as to the ‘severe force’
required to fracture the deceased’s ribs, rejected the appellant’s
explanation that such an injury may have occurred when hitting each
other, or from the pressure applied in carrying her to the bathroom on
the basis that it does ‘not account for the fatal injury and lacks any
degree of credibility or reliability.’
The trial Judge’s assessment of the appellant’s post offence conduct.
131 The trial Judge ultimately noted that the appellant’s evidence at trial was
inconsistent in several ways with his initial police interview and that his account
of events changed during his cross-examination. Her Honour found that the
appellant’s evidence was tailored to bolster his version of events, and said:
In cross-examination, Mr Trussell frequently contradicted the accounts he gave in his
interview with police and during evidence-in-chief. Much of this evidence was, in my view,
tailored to bolster his version of events that Ms Kennett started the physical altercation,
self-harmed, accidentally fell and he pushed her in self-defence. I accept his account that
the altercation started as he was angry Ms Kennett was on his phone. I reject his evidence
regarding the level of violence he asserted he inflicted on Ms Kennett, his assertions of
Ms Kennett’s violence and that he acted in self-defence during the altercation in the kitchen
in the early hours of 13 December 2018.
132 Before reaching that conclusion, the trial Judge had referred in detail to the
appellant’s evidence and police interview and made findings in respect of the
truthfulness of his evidence. Her Honour also considered the evidence of the
deceased’s previous violence. Having made those preliminary findings, her
Honour proceeded to set out further factual findings and determinative conclusions
relevant to the issue of self-defence.
133 Relevantly, the trial Judge found the following circumstances (as previously
outlined) to be directly relevant to the issue of self-defence and established by the
evidence:
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The appellant was angry about the deceased being out of bed and on his
phone when he woke on 13 December 2018.
The appellant got out of bed and confronted the deceased in the kitchen.
He was angry because she was not telling him what she was doing. A
verbal argument took place. He wanted her to leave, she said she did
not want to go. A physical altercation ensued.
The appellant engaged in the fatal beating, inflicting blows on the
deceased causing severe and serious injuries.
The fatal beating consisted of multiple applications of force to the head
and body, front and back, and included the use of moderate force
sufficient to lacerate the liver and severe force sufficient to fracture ribs.
A rod-like instrument was used to inflict at least the tram-track injury,
being injury 42.
The laceration to the deceased’s liver was caused during the fatal
beating by the appellant.
The laceration to the liver occurred within hours prior to the deceased
presenting at the Mount Gambier hospital.
The pattern of distribution and number of injuries as described by
Dr Heath in her evidence, excludes as a reasonable possibility the
injuries were self-inflicted or resulted from an accidental fall.
The pattern of distribution and number of injuries excludes as a
reasonable possibility the injuries being consistent with anything other
than a severe beating.
134 Having already rejected the appellant’s account as to the circumstances in
which the fatal injury was inflicted upon the deceased, her Honour then proceeded
to consider, in detail, excessive self-defence.
135 The trial Judge outlined the law on self-defence in accordance with the terms
provided in s 15 of the CLCA. Her Honour then expressly referred to defence
counsel’s submission that the deceased had the propensity to kick the appellant in
the groin and testicles, and had regard to her alleged previous incidents of violence
toward the appellant. In doing so, her Honour noted that she had previously
rejected the appellant’s evidence as to the level of the deceased’s past violence
toward the appellant. Further, it is to be emphasised that her Honour had already
made extensive findings as to the extent of past violence and the events that
occurred on the morning of 13 December 2018. Having addressed defence
counsel’s submissions on this point, her Honour proceeded to find that ‘excessive
self-defence does not arise.’ That is, it did not arise on the factual findings that her
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Honour had made and already explained. Whilst the trial Judge does not at this
point of her reasons refer to the appellant’s psychological background and the
evidence of Mr Balfour, her Honour proceeds to consider the issue of self-defence,
assuming it does arise, and then considers the psychological evidence.
136 The trial Judge then refers to Mr Balfour’s opinion that the appellant ‘would
misperceive threat situations and potentially overestimate the level of risk’ and, if
required, ‘he could become physically violent to deal with the conflict or threat.’
In referring to Mr Balfour’s evidence regarding the appellant’s psychological
disposition, her Honour said:
Mr Balfour explained Mr Trussell’s misperception of such situations is part of his
psychopathology and is ingrained developmentally because of being encouraged as a child
to be aggressive and living under the cloud of threats to his physical being. He added that
in overestimating the level of risk and because of his hyperarousal he has a lower threshold
to become overwhelmed by his feelings, which can lead to anger and behavioural
aggression.
137 The trial Judge referred again to the defence submission that Mr Balfour’s
evidence is directly relevant to the question of whether he genuinely believed that
his conduct during the final push was necessary and reasonable in defending
himself; the appellant’s account as to his anger at seeing the deceased on his phone,
and that he wanted her to leave his house; and Mr Balfour’s evidence that the
appellant’s psychological disorders exacerbate his lack of emotional control, and
that he has the ‘added burden that he gets angry very quickly and into that reactive
anger, the blind rage.’
138 After considering Mr Balfour’s evidence, her Honour concluded
(consistently with her earlier findings) that his ‘anger about Ms Kennett being up,
on his phone and denying she was doing anything wrong caused him to
‘spontaneously decide to act out violently in that situation’ and even on his own
account (which had been rejected), ‘there was no threat to him at that time.’ The
trial Judge went on to find that the appellant was the ‘original aggressor’, and while
the deceased may have responded to his anger and verbal attack physically, he
willingly engaged and held the upper hand. As such, he ‘cannot claim to be acting
in self-defence.’
139 The trial Judge found proved beyond reasonable doubt that the appellant did
not genuinely believe his conduct was necessary and reasonable to defend himself.
140 Thus, the trial Judge had regard to the evidence of Mr Balfour in finding that
the prosecution had disproved self-defence. Bearing in mind the factual findings
as to events which immediately preceded the altercation during which the fatal
liver injury was inflicted, it is evident from her Honour’s reasons that the
appellant’s evidence and the psychological evidence of Mr Balfour was brought to
account in finding that the appellant inflicted the fatal injury in anger and not
because of a perceived genuine necessity for defensive conduct. Nor can it be said
that the trial Judge treated her rejection of the appellant’s evidence as
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determinative of the issue of self-defence given that she proceeded to consider the
other evidence in some detail before finding the prosecution had disproved self-
defence.
141 The evidence as to the mutual violence between them had little work to do
on the issue of self-defence because of the trial Judge’s finding as to the disparity
between the level of violence inflicted by the deceased upon the appellant in the
past and on that morning.
142 We would reject the contentions that the trial Judge did not consider the
whole of the evidence in excluding self-defence or erred in finding that excessive
self-defence did not arise on the facts as found.
143 In relation to the submission that the trial Judge rejected the appellant’s
account, as provided by his evidence and police interview, without properly
considering all of the evidence and, in particular, the psychological evidence of
Mr Balfour, that complaint cannot be sustained on a reading of the reasons for
verdict as a whole. The trial Judge comprehensively set out the psychological
evidence of Mr Balfour. Her Honour gave detailed reasons for rejecting the
appellant’s evidence on the basis of his prior inconsistent statements and omissions
made in the record of interview, and by reason of the fact that his account was
inconsistent with the evidence of Dr Heath as to the pattern and distribution of the
deceased’s injuries and the lack of any defensive injuries sustained by him.
144 While the trial Judge did not expressly refer to the psychological evidence
when rejecting the appellant’s evidence, we are satisfied her Honour did not
overlook that evidence in so doing. It is not necessary for a trial judge to detail
every argument put by counsel in support of their case. The psychological evidence
as to the appellant having a lower threshold to become overwhelmed by his
feelings, which can lead to anger and behavioural aggression and ‘a short fuse’,
did little to buttress the appellant’s version of events when his case was that he had
inflicted limited physical violence on the deceased that morning. Mr Balfour also
agreed that the appellant was capable of deliberate and calculated violence to
others. Bearing in mind the reasons given by the trial Judge for rejecting the
appellant’s evidence, and the limited significance of the psychological evidence in
assessing the veracity of the appellant’s evidence, we do not accept that the trial
Judge did not properly and adequately have regard to those matters in rejecting his
account.
145 As to an aligned complaint in relation to a reversal of the onus of proof, the
appellant contends that the trial Judge erroneously relied on a prosecution written
submission to the effect that having rejected the accused’s account as a reasonable
possibility, ‘excessive self-defence does not arise.’ In rejecting the appellant’s
evidence, her Honour said that it was ‘unconvincing and much of it lacking in
specificity.’ The appellant contends that the issue was not whether the appellant
had ‘convinced’ her Honour as to the reliability or accuracy of his account, but
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rather, whether on the whole of the evidence the prosecution had disproved
self-defence.
146 Contrary to the appellant’s submissions, the prosecution did not submit that,
as a matter of law having rejected the appellant’s account, excessive self-defence
did not arise. Rather, the prosecution’s submission was to the effect that, having
rejected the appellant’s account as a reasonable possibility, self-defence did not
arise on the facts of this case as found by her Honour. Nor did the trial Judge, in
describing the evidence as ‘unconvincing’, suggest that the appellant bore the onus
of proving the truthfulness of his account. Indeed, her Honour expressly said
otherwise:
I remind myself that even if I do not accept Mr Trussell’s evidence regarding the altercation
in the early hours of 13 December 2018, if I consider there is a reasonable possibility that
it is true, I must acquit him. On the other hand, if I reject his evidence, I must put it to one
side because the question remains, has the prosecution proved Mr Trussell’s guilt on the
charge of murder beyond reasonable doubt?
147 Her Honour had also earlier directed herself as to the standard and onus of
proof. We are satisfied that there was no reversal of the onus of proof.
‘Willing engagement’
148 The appellant contends that the trial Judge did not apply s 15 of the CLCA in
rejecting excessive self-defence. Rather, it is submitted that upon finding that the
appellant ‘willingly engaged’ and had the ‘upper hand’ in the physical altercation,
her Honour erroneously reasoned that excessive self-defence was not raised, and
the prosecution had negatived self-defence.
149 The appellant contends that the evidence did not establish that the appellant
‘willingly engaged’ in a physical altercation with the deceased, and even if the
appellant was initially a willing combatant, and had the ‘upper hand’, it did not
necessarily follow that the prosecution had disproved that he was acting for a
defensive purpose at the time he inflicted the fatal liver injury. The appellant also
submits that the evidence did not allow for a finding that the appellant ‘willingly
engaged in combat with the deceased’ at the time he inflicted the fatal injury.
150 In referring to the appellant being ‘willingly engaged’ and having the ‘upper
hand’ in the physical altercation, the trial Judge said ‘Mr Trussell’s version about
how the altercation started in the early hours of 13 December is revealing about
his willing engagement.’ Her Honour proceeded to consider the appellant’s
evidence that he was upset because the deceased was on the phone and would not
give him a clear answer as to what she was doing, so he assumed from past
experience that she was denying something. This made him angry and so he started
yelling at her.
151 Under the heading of ‘Findings’, and after assuming that self-defence did
arise on the evidence (contrary to her findings), her Honour said:
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I find Mr Trussell was the original aggressor; Ms Kennett may have responded to his anger
and verbal attack physically, however, he willingly engaged and held the upper hand. As
such, he cannot claim to be acting in self-defence.
152 The trial Judge’s use of the phrase ‘willingly engaged’ appears to have been
drawn from the judgment of Wells J in Morgan v Colman,7 when his Honour said:
‘[d]efence means defence; a person who claims to have been acting in justifiable
self-defence must have acted, and believed himself to be acting, in defence. To
engage willingly in combat is not self-defence.’8 The appellant contends that it did
not necessarily follow from a finding that the appellant was ‘willingly engaged’ in
the physical altercation and held the ‘upper hand’, that he was not acting for a
defensive purpose when he inflicted the fatal injury.
153 In Zecevic v Director of Public Prosecutions (Victoria),9 Wilson, Dawson
and Toohey JJ observed:10
Where an accused person raising a plea of self-defence was the original aggressor and
induced or provoked the assault against which he claims the right to defend himself, it will
be for the jury to consider whether the original aggression had ceased so as to have enabled
the accused to form a belief, upon reasonable grounds, that his actions were necessary in
self-defence. For this purpose, it will be relevant to consider the extent to which the accused
declined further conflict and quit the use of force or retreated from it, these being matters
which may bear upon the nature of the occasion and the use which the accused made of it.
Indeed, even in circumstances in which the accused was not the original aggressor, retreat
in the face of a threat of violence before resort to force may be relevant to the belief of the
accused or the reasonableness of the grounds upon which the accused based his belief.
154 Section 15 of the CLCA does not change the common law position that an
accused is not acting defensively if they do not genuinely believe conduct to which
the charge relates to be necessary and reasonable for a defensive purpose. That
genuine belief will not exist if a person was the original aggressor or engaged
willingly in a physical altercation unless there is a reasonable possibility that the
original aggression has ceased, and a new situation arisen to which he is
responding defensively.11
155 In the present matter, it is to be emphasised that the prosecution case at trial
was that the appellant woke to find the deceased on his phone and, whilst angry,
inflicted a severe beating on her involving multiple applications of force during
which she sustained the fatal liver injury. It was the prosecution case that the
appellant was the original aggressor and held the upper hand throughout, albeit,
the deceased may have responded to his aggression physically.
156 By contrast, on the defence case, while the appellant admitted confronting
the deceased, she physically hit him after he asked her to leave his home, at which
7 (1981) 27 SASR 334.
8 Morgan v Colman (1981) 27 SASR 334 at 336 per Wells J.
9 (1987) 162 CLR 645.
10 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 at 663 per Wilson, Dawson
and Toohey JJ.
11 R v Miller (2019) 134 SASR 155 at [164] per Stanley J.
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time the appellant responded by pushing her into the fridge for a defensive purpose.
It was not the defence case that the appellant willingly engaged in a physical
altercation with the deceased which came to an end, and then during a new incident
involving violence he acted for a defensive purpose when inflicting the fatal liver
injury. Nor was it the defence case that while the appellant was a willing combatant
and originally had the upper hand, those circumstances changed before he inflicted
the fatal liver injury.
157 Thus, in the context of the dispute at trial, her Honour’s finding that the
appellant ‘willingly engaged’ in a violent altercation and had the ‘upper hand’
reflected her factual findings that the appellant initiated the physical altercation
because he was angry with the deceased and not because of a perceived threat from
the deceased, and that he was physically dominant throughout the incident
(although allowing for the fact the deceased may have responded physically). Her
Honour’s references to the appellant being ‘willing engaged’ was not a statement
of what is required to disprove excessive self-defence. Rather, it was a re-iteration
of her factual findings upon which she ultimately concluded that the appellant’s
actions in inflicting the fatal liver injury were not because of a perceived genuine
necessity for defensive conduct.
158 Further, when considering whether the prosecution had disproved excessive
self-defensive (after assuming it did arise on the evidence), the trial Judge
expressly referred to the terms of s 15 of the CLCA. After finding that the appellant
was the ‘original aggressor’ and ‘willingly engaged and held the upper hand’, her
Honour went on to use the wording of s 15 of the CLCA in concluding that the
prosecution had proved beyond reasonable doubt that the appellant did not
genuinely believe his actions were necessary for a defensive purpose.
159 We are also satisfied that it was open for the trial Judge to make findings that
the appellant had ‘willingly engaged’ and had the ‘upper hand’ throughout the
physical altercation, and that he was not acting for a defensive purpose having
regard to the following evidence adduced at trial:
the pattern of distribution and number of the injuries to the deceased
which on the evidence of Dr Heath excludes as a reasonable possibility
that the injuries were self-inflicted or resulted from a fall, or that they
were consistent with anything other than a severe beating;
the evidence of Ms Considine that at the broadly relevant time she heard
yelling from the appellant but not the deceased (suggesting that the
appellant was the aggressor);
the absence of any recent injuries to the appellant;
the disparity in weight and size between the appellant and the deceased;
and
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the appellant’s post offence conduct in not immediately taking the
deceased to the hospital including the implausibility of his reason for
not doing so namely that he did not appreciate the seriousness of her
condition.
160 That evidence, when considered collectively, left it open to the trial Judge to
conclude that the appellant had willingly engaged in the physical altercation and
had the upper hand throughout from which it was open to infer he was not acting
defensively when he inflicted the fatal liver injury. That is so notwithstanding the
appellant’s evidence to the contrary (bearing in mind that the appellant’s
credibility was undermined by admitted lies told in his police interview), the
evidence of past violence by the deceased, and the psychological evidence of
Mr Balfour.
161 As to the contention that the trial Judge erred in reasoning that ‘size
difference alone rebuts any suggestion that he genuinely believed his actions were
necessary for a defensive purpose’, it was open for her Honour to find that the
deceased, who was a slight woman weighing just 53kg and measuring 163cm in
height, would not have been perceived by the appellant, who was strong and visibly
muscular (and who had engaged in violence during their relationship) as posing
any real threat even when taking into account the psychological evidence of
Mr Balfour. In any event, the disparity in size between the appellant and the
deceased was but one factor relied upon by her Honour in concluding that the
prosecution had disproved excessive self-defence. The trial Judge had already
referred to the other pieces of circumstantial evidence (outlined earlier) and did
not in fact exclusively rely upon that matter.
162 We would dismiss this ground of appeal.
Ground 4 – Alleged error in finding provocation disproved
163 The appellant complains that the trial Judge erred in finding that the
prosecution had disproved provocation beyond reasonable doubt. There are four
limbs to the appellant’s complaint. They are:
a. the trial Judge erred in relying on the failure of the appellant to give
evidence of a loss of self-control or fear and panic;
b. the trial Judge erroneously confined her consideration to the appellant’s
evidence and not to other evidence from which provocation might be
inferred;
c. the trial Judge wrongly found and/or erroneously relied on a finding that
the appellant held the ‘upper hand’ throughout; and
d. the trial Judge erred in her assessment of the traits and characteristics of
the appellant as relevant to the question of provocation by: exclusively
considering those traits and characteristics as identified by Mr Balfour;
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and not considering how they bore on the question of genuineness and
the appellant’s belief in the circumstances.
164 At the time of the trial, the partial defence of provocation at common law was
available and operated to reduce what would otherwise be murder to manslaughter.
It has now been abolished.12
165 The partial defence of provocation is established if the prosecution has
negatived that:13
a. the provocative conduct caused the accused to lose self-control and the
killing took place while the accused was deprived of self-control
(the subjective limb); and
b. the provocative conduct is capable of causing an ordinary person to lose
self-control and act in the way the accused did (the objective limb).
166 The focus of the objective limb is ‘upon the capacity of the provocation to
cause an ordinary person to lose self-control and form the intention to kill or to do
grievous bodily harm.’14 However, the gravity of the conduct must be assessed by
reference to the relevant characteristics of the accused. As the High Court
explained in Masciantonio v The Queen:15
Conduct which might not be insulting or hurtful to one person might be extremely so to
another because of that person’s age, sex, race, ethnicity, physical features, personal
attributes, personal relationships or past history. The provocation must be put into context
and it is only by having regard to the attributes or characteristics of the accused that this
can be done.
167 There exists a threshold question as to whether a trial Judge should leave
provocation to a jury. That is determined by an assessment as to whether: 16
on the version of events most favourable to the accused, which is suggested by material in
the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt
that the killing was unprovoked in the relevant sense.
168 As the High Court said in Lindsay v The Queen (‘Lindsay’):17
12 The Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA) was
passed by the Parliament of South Australia on 1 December 2020. Section 6 of the Act abolished the
common law defence of provocation by inserting section 14B into the Criminal Law Consolidation Act
1935 (SA). However, because the offending occurred in 2018, the common law defence of provocation
was available to the appellant at the time of the trial.
13 Lindsay v The Queen (2015) 255 CLR 272 at [15] per French CJ, Kiefel, Bell and Keane JJ.
14 Lindsay v The Queen (2015) 255 CLR 272 at [15] per French CJ, Kiefel, Bell and Keane JJ, citing
Masciantonio v The Queen (1995) 183 CLR 58 at 69-70 per Brennan, Deane, Dawson and Gaudron JJ.
15 (1995) 183 CLR 58 at 67 per Brennan, Deane, Dawson and Gaudron JJ.
16 Masciantonio v The Queen (1995) 183 CLR 58 at 67-68 per Brennan, Deane, Dawson and Gaudron JJ,
citing Stingel v The Queen (1990) 171 CLR 312 at 334 per Mason CJ, Brennan, Deane, Dawson,
Toohey, Gaudron and McHugh JJ.
17 (2015) 255 CLR 272 at [16] per French CJ, Kiefel, Bell and Keane JJ.
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The threshold question of law is whether there is material in the evidence which sufficiently
raises the issue to leave the partial defence for the jury’s consideration. The determination
of the threshold question requires the trial judge (and the appellate court) to consider the
sufficiency of the evidence to allow that an ordinary person provoked to the degree the
accused was provoked might form the intention to kill or to do grievous bodily harm and
act upon that intention, as the accused did so as to give effect to it.
(citations omitted)
169 The relevant version of the evidence which falls to be considered in
determining the threshold question is that which is most favourable to the
appellant.
170 It is well established that the failure of a person to give evidence of a loss of
self-control is not fatal to the question of whether the partial defence of provocation
should be left to the jury.18 Notwithstanding that an accused person does not give
evidence as to a loss of self-control, where there is other material in evidence from
which a jury acting reasonably could infer provocation, it should be left.19 That is
so, even if there is no request at trial for the partial defence of provocation be left
to the jury, and in circumstances where counsel at trial positively submits that it
should not be left.20
171 Provocation is also not confined to circumstances where a person experiences
a loss of self-control because of anger or resentment. It extends to a sudden and
temporary loss of self-control due to other emotions such as fear or panic as well
as anger or resentment.21
172 In relation to the threshold question as to whether to leave the partial defence
of provocation to the jury, the High Court in Lindsay and Stingel v The Queen22
emphasised the need for trial judges to exercise caution before declining to leave
provocation to the jury.23 Nonetheless, before provocation is left to the jury there
must be material in the evidence which adequately raises both the subjective and
objective limbs of the partial defence.24 Whether the subjective limb is satisfied is
a question of fact;25 whether the objective limb is satisfied is a question of opinion.26
173 In the present case, the evidence of provocative conduct was found in the
appellant’s evidence; more specifically, his account that he was attacked by the
18 See, for example, Van Den Hoek v The Queen (1986) 161 CLR 158; Penhall v The Queen [2020]
SASCFC 58.
19 Van Den Hoek v The Queen (1986) 161 CLR 158 at 169 per Mason J.
20 Penhall v The Queen [2020] SASCFC 58 at [41] per Nicholson J.
21 Van Den Hoek v The Queen (1986) 161 CLR 158 at 168 per Mason J.
22 (1990) 171 CLR 312.
23 Stingel v The Queen (1990) 171 CLR 312 at 334 per Mason CJ, Brennan, Deane, Dawson, Toohey,
Gaudron and McHugh JJ; Lindsay v The Queen (2015) 255 CLR 272 at [27] per French CJ, Kiefel, Bell
and Keane JJ.
24 Lindsay v The Queen (2015) 255 CLR 272 at [16] per French CJ, Kiefel, Bell and Keane JJ.
25 Lindsay v The Queen (2015) 255 CLR 272 at [16] per French CJ, Kiefel, Bell and Keane JJ.
26 Lindsay v The Queen (2015) 255 CLR 272 at [16] per French CJ, Kiefel, Bell and Keane JJ, citing
Phillips v The Queen [1969] 2 AC 130 at 137 per Lord Diplock.
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deceased in a relentless manner and that she would not let him retreat from the
kitchen. The appellant also relied upon the psychological evidence of Mr Balfour,
the number of injuries sustained by the deceased (suggesting a frenzied attack
associated with a loss of self-control), and the pathology evidence as to the severe
force with which the injuries were likely inflicted. At the appeal hearing, in
submitting that the prosecution had not disproved provocation, the appellant also
emphasised the evidence of the deceased’s propensity for violence, the appellant’s
apparent lack of motive to commit the offence, and the appellant’s subsequent
conduct in taking the deceased to the hospital.
174 The appellant submits that the gravity of the provocative conduct needs to be
viewed in the context of the volatile nature of his relationship with the deceased,
her previous violence towards him, and his psychological conditions as diagnosed
by Mr Balfour.
175 Before coming to consider the partial defence of provocation, the trial Judge
made factual findings, as outlined above. Her Honour then turned to consider the
issue and noted that, on the defence case, the provocative conduct was arguably
found in the appellant’s evidence that the deceased attacked him in a relentless
manner and that she would not let him retreat from the kitchen. Her Honour
concluded that, having rejected the appellant’s evidence regarding the level of
violence both he and the deceased engaged in, provocation did not arise.
176 In so concluding, the trial Judge was not saying that provocation did not arise
on the version of events most favourable to the appellant disclosed in evidence, as
a trial judge may decide in declining to leave the partial defence to a jury. Rather,
bearing in mind those factual findings as to the circumstances in which the fatal
injury was inflicted, her Honour concluded that the deceased’s conduct was not
provocative and the partial defence of provocation ‘does not arise.’ Put another
way, her Honour found that it was not reasonably possible that the deceased’s
conduct (on the facts as she found them to be) could have caused the appellant to
suffer a sudden and temporary loss of self-control such that he was deprived of
that loss of self-control when he killed her and before regaining composure; and
the subjective limb was not satisfied.
177 Further, on the facts as found, her Honour considered that it was not
reasonably possible that the provocative conduct, measured in gravity by reference
to the personal situation of the appellant, was capable of causing an ordinary
person to lose self-control and form an intention to kill or cause grievous bodily
harm and to act on that intention in the way the appellant did; and the objective
limb of provocation was not satisfied.
178 It is to be emphasised that on the trial Judge’s factual findings, the deceased’s
‘provocative’ conduct was limited to her being out of bed and on the appellant’s
phone when he woke, refusing to tell him what she was doing on his phone when
he questioned her about it, and not leaving the home when he asked her to. The
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trial Judge also accepted that the deceased may have responded physically to the
appellant’s attack but ultimately found that he held the ‘upper hand’ throughout.
179 It is to be accepted that, in concluding that provocation ‘does not arise’, the
trial Judge did not expressly refer to the deceased’s propensity for violence.
However, that evidence was taken into account earlier by her Honour in reaching
her factual findings.
180 Before finding that provocation did not arise, the trial Judge also did not refer
to the evidence of Mr Balfour. As outlined earlier, Mr Balfour gave evidence that
the appellant would ‘misperceive threat situations and potentially overestimate the
level of risk’ and ‘he could become physically violent to deal with conflict or
threat’. He said that the appellant has a lower threshold to become overwhelmed
by his feelings which can lead to anger and behavioural aggression or ‘reactive
anger’. That evidence was relevant to inform an assessment of the gravity of the
provocative conduct as found by the trial Judge. However, it needs to be considered
in the context of the relationship between the appellant and the deceased and the
trial Judge’s findings that there was a disparity between the level of violence and
verbal abuse inflicted by each to the other.
181 While on the whole of the evidence, the issue of provocation did arise and,
had this been a jury trial, the partial defence of provocation would have been
required to have been left to the jury, the question of provocation fell to be
determined by reference to the factual findings.
182 In relation to the objective limb, the provocative conduct was so limited in
its nature that when measuring its gravity by reference to the volatile nature of their
relationship and the appellant’s psychological conditions, it was open to the trial
Judge to find that it was not reasonably possible that the deceased’s conduct could
have caused an ordinary person to lose self-control and form an intention to kill or
cause grievous bodily harm and act in the manner he did (the objective limb). This
is supported by the prolonged nature of the attack, which lasted for at least an hour,
during which the appellant inflicted ‘multiple blows’ upon the deceased, causing
at least 17 injuries.
183 Given the limited nature of the provocative conduct on the facts as found by
the trial Judge, it was also open to reach a conclusion that it was not reasonably
possible that the appellant killed the deceased as a result of a temporary and sudden
loss of control caused by the deceased’s provocative conduct (the subjective limb).
184 It was open for the trial Judge to find the partial defence of provocation
disproved.
185 In any event, the trial Judge turned to consider the issue ‘assuming, contrary
to my finding, that Ms Kennett’s evidence was provocative.’ The trial Judge
proceeded to consider provocation on the basis of the appellant’s evidence,
notwithstanding her contrary factual findings. The trial Judge found that even if
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the deceased did engage in the provocative conduct alleged by the appellant, the
evidence did not raise as a reasonable possibility that the alleged provocation
caused the appellant to lose his self-control (the subjective limb), or that an
ordinary person could have been provoked by the alleged provocation to the point
of forming an intention to kill or cause really serious bodily harm and act on that
intention (the objective limb).
186 We now turn to the particulars of this appeal ground. First, the appellant
contends that in finding that provocation was disproved, the trial Judge erred in
relying on his failure to give evidence of a loss of self-control. The absence of
evidence from the appellant as to a loss of self-control was referred to by the trial
Judge when considering the subjective limb of provocation. It is not fatal to the
partial defence of provocation that an accused does not expressly say in evidence
that they lost self-control. However, the absence of evidence from the appellant to
that effect was a relevant factor in the trial Judge’s consideration of the subjective
limb. Her Honour did not treat it as a determinative factor. There was no erroneous
reliance on the failure of the appellant to give evidence of a loss of self-control.
187 Second, the appellant complains that the trial Judge erroneously limited
herself to a consideration of the appellant’s evidence and did not consider other
evidence from which provocation might be inferred. The trial Judge’s emphasis on
the appellant’s evidence must be considered in the context of her factual findings.
As outlined earlier, the trial Judge made findings as to the circumstances in which
the fatal injury was inflicted, thereby limiting the extent of the deceased’s conduct
which could be considered provocative. Given those findings, the evidence
provided little support for the partial defence of provocation. The trial Judge had
already considered the deceased’s propensity for violence in finding that the
appellant started the physical altercation, that he was the original aggressor, and in
rejecting the appellant’s evidence as to the deceased’s relentless attack upon him.
188 The appellant also contends that the trial Judge failed to have regard to the
other evidence of the number of recent injuries and the force with which they were
inflicted. However, that evidence is equally consistent with a controlled severe
beating in the context of a volatile and violent relationship. As such, it was
consistent with both the prosecution and defence case.
189 In relation to Mr Balfour’s evidence, on the facts as found by the trial Judge,
it was of limited relevance. Mr Balfour said that whilst the appellant had a
susceptibility to overreact and become angry, which might cause him to
spontaneously act out violently because of his limited ability to cope, he would
have the ability and powers of self-control like anyone else to choose to walk away.
190 Third, the appellant complains that the trial judge wrongly found, or
erroneously relied on, the finding that he held the ‘upper hand’ throughout in
finding that the prosecution had negatived the subjective limb. For reasons outlined
earlier, that finding was open to the trial Judge. The trial Judge’s finding that ‘he
held the upper hand throughout’ was to the effect that the appellant’s conduct was
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dominant and sustained throughout the incident during which the fatal injury was
inflicted. That was a factor that militated against a temporary loss of self-control.
191 Fourth, the appellant complains that the trial Judge erred in her assessment
of the traits and characteristics of the appellant as relevant to the question of
provocation by: exclusively considering those traits and characteristics as
identified by Mr Balfour; and by not considering how they bore on the question of
genuineness and the appellant’s belief in the circumstances. Mr Balfour’s evidence
encapsulated most of the matters personal to the appellant which the trial Judge
was required to consider in assessing the gravity of the provocative conduct for the
purposes of the objective limb. They included his personal attributes, childhood
trauma, psychological conditions, and the volatile nature of his relationship with
the deceased. The trial Judge separately referred to the appellant’s age. She did not
fail to consider how those matters bore on the question of provocation. Rather, her
Honour expressly referred to them (assuming that the deceased’s conduct was
provocative) in finding that the prosecution had negatived the objective limb of
provocation.
192 For those reasons, we would dismiss this ground of appeal.
Ground 1 – Inadequate reasons
193 The appellant complains that the reasons of the trial Judge were inadequate
on three bases. First, and in relation to specific intent, that her Honour’s reasons
were inadequate as to the extent of her reliance on the deceased’s injuries, and by
reason of a failure to bring to account the evidence of Mr Balfour, and the
appellant’s lack of motive and post offence conduct. Second, in relation to the
‘exclusion’ of excessive self-defence. Third, in relation to the ‘exclusion’ of
provocation.
194 The requirement of the provision of adequate reasons is to allow an appellate
court to discharge its statutory duty on appeal from a decision and to enable the
parties to understand the basis upon which a decision was made.27 To that end, and
in the absence of an express statutory provision, ‘a judge returning a verdict
following a trial without a jury is obliged to give reasons sufficient to identify the
principles of law applied by the judge and the main factual findings on which the
judge relied.’28 The basis for a decision must be adequately set out so that justice
can be seen to be done.29
195 In considering the adequacy of reasons, they are to be evaluated on a case by
case basis and will depend upon an assessment of the issues in the case, including
the extent to which they were relied upon by counsel, their bearing upon the
27 DL v The Queen (2018) 266 CLR 1 at [32] per Kiefel CJ, Keane and Edelman JJ.
28 DL v The Queen (2018) 266 CLR 1 at [32] per Kiefel CJ, Keane and Edelman JJ, citing Douglass v The
Queen (2012) 86 ALJR 1086 at 1089 per French CJ, Hayne, Crennan, Kiefel and Bell JJ, cited in R v
Rendell (2018) 131 SASR 201 at 87 per Kourakis CJ (with whom Stanley and Bampton JJ agreed).
29 Harwood v Police (1998) 71 SASR 300 at 305 per Duggan J; Papps v Police (2000) 77 SASR 210 at
[24]-[26], [34]-[35] per Gray J.
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elements of the offence, and their significance to the trial.30 The degree to which a
particular issue must be subject to comment is determined by a consideration of
the issues at trial.31
196 In determining the adequacy of reasons, they must be read as a whole.32 While
it is necessary for a trial judge to articulate the grounds which have led to a
conclusion concerning factual questions, it is not a requirement that the arguments
be dealt with at great length, or that a detailed explanation of every step in the
reasoning process be given.33 Further, reasons for decision will not be inadequate
merely because they fail to address an irrelevant or peripheral dispute, nor will the
failure to resolve a dispute necessarily render reasons for a decision inadequate.34
Reasons will, however, generally be inadequate where there is a failure to explain
how a significant factual or evidential dispute was determinative in reaching a final
conclusion.35
Inadequate reasons in relation to specific intent
197 The appellant contends that the trial Judge provided inadequate reasons in
finding proved the appellant’s specific intention to cause really serious bodily
harm when inflicting the fatal injury. In making that submission, the appellant
emphasised that his state of mind was a central issue in dispute at trial and the
focus of the defence case.
198 The appellant highlights that it is not the law that a person intends the natural
or probable consequences of their act; and submitted that in this case, the acts done,
of themselves, do not provide the most cogent evidence of his state of mind.36 The
appellant also submits that this was not a case where the evidence of the result of
the act compels an inference as to his state of mind. The question is not one of a
defendant’s ability or capacity to form the relevant intent; it is a question of the
actual formation of that intent.37
199 The appellant submits that the trial Judge found the appellant’s specific
intention proved solely on the pattern of distribution and number of injuries
inflicted on the deceased, and without regard to other relevant evidence. As such,
it was not open to the trial Judge to find the appellant’s specific intent to cause
30 R v Ricciardi (2017) 128 SASR 571; DL v The Queen (2018) 266 CLR 1; R v Rendell (2018) 131 SASR
201.
31 Fleming v The Queen (1998) 197 CLR 250; R v McKenzie [2001] SASC 279 at [12]-[17] per Perry J; R
v Power (2003) 141 A Crim R 203 at [76] per Perry J; R v Cotton [2015] SASCFC 17; R v Ricciardi
(2017) 128 SASR 571 at [25] per Vanstone J.
32 R v Ricciardi (2017) 128 SASR 571 at [25] per Vanstone J.
33 R v Keyte (2000) 78 SASR 68 at [48]-[49] per Doyle CJ, citing Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 247 at 259 per Kirby P, 280 per Mahoney JA, [54] per Doyle CJ, citing R v Winner
(1995) 79 A Crim R 528 at 530-531 per Kirby P; DL v The Queen (2018) 266 CLR 1; R v Sabet [2018]
SASCFC 18.
34 DL v The Queen (2018) 266 CLR 1; R v Sabet [2018] SASCFC 18.
35 DL v The Queen (2018) 266 CLR 1.
36 Parker v The Queen (1963) 110 CLR 610.
37 R v Helmhout (1980) 1 A Crim R 464 at 469 per Smithers, Brennan and Deane JJ; Herbert v The Queen
(1982) 62 FLR 302 at 313 per Toohey and Sheppard J.
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really serious bodily harm on that evidence alone. Rather, there was a body of
evidence not considered by the trial Judge which raised as a reasonable possibility
that the appellant did not intend to inflict really serious bodily harm, and to which
the trial Judge had no express regard.
200 The trial Judge’s impugned findings as to specific intention are crystalised
towards the end of her reasons when it is explained:
Mr Trussell gave evidence he did not form the requisite specific intention during the
altercation on 13 December 2018. I have borne in mind that if there is a reasonable
possibility that he did not form the requisite intention at the time of performing the act or
acts of violence that caused the fatal liver injury, then he must be acquitted of the charge
of murder.
I have considered and weighed all the circumstances established by the evidence at trial in
deciding whether there is an inference consistent with innocence reasonably available on
the evidence.
However, having regard to the positioning, nature and extent of the injuries sustained by
Ms Kennett, some of which involved moderate to severe applications of force, I am
satisfied that during the altercation in the early hours of 13 December 2018 Mr Trussell
severely beat Ms Kennett. Having regard to the totality of the evidence, I am satisfied that
Mr Trussell formed the specific intention whilst he was beating Ms Kennett, which
intention did not change, to cause at least really serious bodily harm. I am satisfied that at
the time he was performing the act or acts of violence with that intention he caused the liver
laceration which caused Ms Kennett’s death.
Having examined all the evidence, I have reached the conclusion that it is not reasonably
possible that Mr Trussell did not have the requisite specific intention at the time the injuries
detailed by Dr Heath were inflicted.
201 That conclusion is not to be considered in isolation but together with the
reasoning which preceded it (set out under the heading ‘Analysis’), and the later
factual findings as to the circumstances established by the evidence. Specifically,
and relevant to this ground of appeal, the trial Judge found the following
circumstances to be established: the appellant had issues controlling his anger; the
appellant and the deceased had an altercation involving physical violence either in
the late hours of 6 December 2018 or very early hours of 7 December 2018; and
the relationship had deteriorated at the time of the altercation on the morning of
13 December 2018. The trial Judge also found that there would not have been any
strong direct drug effects occurring and affecting the appellant in the late hours of
12 December 2018 or early hours of 13 December 2018. Her Honour rejected
material aspects of the appellant’s account given in his police interview, and
determined that his evidence as to their past history of arguments sought to
minimise his violence to the deceased and did not account for her older injuries;
and his evidence as to his physical conduct towards her during their altercation on
13 December 2018 did not account for her recent injuries. Her Honour found that
whilst the deceased may have responded to the appellant’s anger and verbal attack
physically, he ‘willingly engaged’ and had the upper hand in the altercation.
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202 The trial Judge made factual findings that, on 13 December 2018, the
appellant inflicted multiple blows upon the deceased causing the recent injuries.
Her Honour excluded as a reasonable possibility that the injuries were
self-inflicted or resulted from an accidental fall, finding that the pattern of
distribution and number of the injuries excludes as a reasonable possibility that
those injuries were consistent with anything other than a severe beating. Her
Honour concluded that the deceased was subject to violent blunt force trauma
inflicted by the appellant. In relation to proof of his specific intent to cause really
serious bodily harm, her Honour said:
I have considered whether the evidence raises a doubt in my mind whether the inference
that Mr Trussell intended to cause really serious bodily harm should be drawn. Ms Kennett
sustained too many injuries for there to be any reasonable possibility that Mr Trussell did
not appreciate that his actions could cause really serious bodily harm. There is no
reasonable possibility that in subjecting Ms Kennett to a severe beating during which he
caused the liver injury he did not intend to cause really serious bodily harm.
(emphasis added)
203 The respondent acknowledges that, given this is not a case presented as
reckless murder, the trial Judge incorrectly stated the requisite mental state when
she said the deceased sustained too many injuries for there to be any reasonable
possibility that the appellant did not appreciate that his actions ‘could’ cause really
serious bodily harm. That could only be a step toward a finding of guilt as it would
not in itself constitute a sufficient finding of proof of the element of specific intent.
However, we are satisfied that error is ameliorated by the trial Judge’s immediate
subsequent finding regarding satisfaction beyond reasonable doubt of the
appellant’s specific intent (emphasised in italics above).
204 We turn to the particulars of the complaint that the trial Judge’s reasons were
inadequate.
205 In relation to reliance placed by the trial Judge on the injuries of the deceased,
we are satisfied that the reasons are not inadequate as to the basis upon which she
relied on the extensive injuries sustained by the deceased from which inferences
were drawn to find proved the appellant’s specific intent to cause really serious
bodily harm. The trial Judge noted the multiple applications of force required to
cause the injuries sustained by the deceased within 26 hours of her recorded time
of death; that some of those injuries, namely the fractures to several of her ribs,
required the application of severe force; and that some of those injuries were
inflicted by a weapon of some sort. The trial Judge also referred to the absence of
defensive wounds sustained by the appellant despite claims of self-defence, the
marked disparity in apparent past aggression between the appellant and the
deceased, and the differences in their physicality and size.
206 In circumstances where there are multiple applications of force an accused
will only be guilty of murder if the requisite intent is contemporaneous with the
fatal blow. The trial Judge made a finding that the deceased was subjected to a
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severe beating at the hands of the appellant, and that it was during this beating that
he inflicted multiple blows upon the deceased, including the blow resulting in the
fatal liver injury. It was on that basis, and after assessing the evidence in its totality,
that the trial Judge concluded that she was satisfied ‘that Mr Trussell formed the
specific intention whilst he was beating Ms Kennett, which intention did not
change, to cause at least really serious bodily harm.’
207 In relation to the contention that the trial Judge failed to ‘bring to account’
the evidence of Mr Balfour as to the appellant’s psychological condition and his
potential for a ‘blind rage’ when finding proved that the appellant had the requisite
specific intention, it is necessary to consider the reasons for verdict as a whole.
The trial Judge in her reasons for verdict:
summarised Mr Balfour’s evidence and accepted his evidence in so far
as it related to the appellant;
extracted Mr Balfour’s evidence on the appellant’s potential for
suffering from ‘blind rage’ at various parts of her reasons;
considered the evidence of Mr Balfour as to the appellant’s
psychological background in the context of the submission that, when
assessing whether Mr Trussell genuinely believed the conduct to which
the charge relates to be necessary and reasonable for a defensive
purpose, the Court must take into account his state of mind, and that the
consequences of the appellant’s psychological background are directly
relevant to this question; and
referred to, and considered, the evidence of Mr Balfour in finding the
prosecution had disproved self-defence.
208 The effect of the evidence of Mr Balfour was that the appellant had a
dysfunctional childhood during which he ‘lived in fear that his father would
seriously injure or kill him.’ Mr Balfour consider that the appellant had suffered
from severe domestic violence as a child. As a result, Mr Balfour diagnosed the
appellant with an anti-social personality disorder and PTSD. The symptoms of an
anti-social personality disorder are poor impulse control, rule breaking, violence,
and treating others poorly. Hypervigilance and hyperarousal are part of the
diagnostic criteria for PTSD.
209 In terms of how the appellant would react in a conflict situation, Mr Balfour
said that he would misperceive threat situations and potentially overestimate the
level of risk, and, if required, he could become physically violent to deal with the
conflict or threat. He said that the appellant will become hypervigilant and
overestimate the level of risk to himself from a perceived threat. He is also likely
to suffer from hyperarousal so that he is ‘revved up’ and has a lower threshold to
become overwhelmed by his feelings, which can include anger and lead to
behavioural aggression. Mr Balfour explained that a hypervigilant person will
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perceive a greater threat than a person who does not have a personality disorder or
PTSD and will be prone to over-evaluate the level of risk of threat. A person
suffering from hyperarousal is likely to overreact to the threat as they perceive it.
210 However, Mr Balfour conceded that the appellant’s psychological conditions
did not mean that he would not appreciate that he was acting violently in a
particular situation, and that he was capable of ‘deliberate and calculated violence.’
He said that the appellant might be angered by a situation that someone without
his conditions would not be angered by but agreed with the proposition that ‘[t]hat
anger can then manifest itself in Mr Trussell forming an intention to be violent at
that point in time’. Mr Balfour added that ‘the time frame to form intent can be
pretty short, instantaneous.’
211 A specific intention to cause really serious bodily harm can of course be
formed spontaneously. That is what the trial Judge found to have occurred in the
present matter. Her Honour said:
On my assessment, Mr Trussell’s anger about Ms Kennett being up, on his phone and
denying she was doing anything wrong caused him to “spontaneously decide to act out
violently in the situation”.
212 In those circumstances, the evidence of Mr Balfour properly considered did
little to undermine the prosecution case in proof of specific intent. Indeed, it
strengthened the case by way of an explanation for the appellant’s anger and
conduct in inflicting a severe beating on the deceased. Given its limited
significance on this issue, the trial Judge’s reasons were not inadequate.
213 The appellant also submitted that the trial Judge gave inadequate reasons by
failing to refer to the absence of motive to cause really serious bodily harm, and
his post-offence conduct in taking the deceased to the hospital. It was submitted
that those matters militated against a finding that he had formed the requisite
specific intention. There was a history of domestic violence and abuse perpetrated
by the appellant on the deceased, and the trial Judge made express findings on that
topic, which were set out earlier. An absence of motive was of far less significance
than it would have been if the relationship had not been characterised by such
violence or in an otherwise inexplicable situation of spontaneous violence.
214 Further, given the relatively spontaneous nature of the beating during which
the fatal liver injury was inflicted, on the facts as found by the trial Judge, the
appellant’s post-offence conduct in arranging for the deceased to be taken to
hospital, and his expressions of concern and love for his partner also carried little
weight. His conduct in doing so was calculated to avoid detection. As her Honour
noted, he unsuccessfully attempted to wake her with cold water, dressed her while
she was still unconscious, and travelled to his sister’s house for her opinion as to
the seriousness of her condition, effectively, bypassing the hospital. It is also to be
noted that defence counsel at trial did not refer to the appellant’s post offence
conduct in submitting that the prosecution had not proved the appellant’s specific
intention. Whilst not determinative, the conduct of the defence counsel reflected
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the lack of significance of the evidence. While the trial Judge did not expressly
refer to the appellant’s absence of motive or post offence conduct, in finding
proved his specific intent, we are satisfied that her reasons were not inadequate
given the limited weight that could be afforded to that evidence with respect to that
issue.
215 The appellant also contends that in determining whether the prosecution had
proved the appellant’s specific intent to cause really serious bodily harm, she was
required to have regard to the pharmacological evidence as to the rebound and
persistent effects of methylamphetamine on the appellant, notwithstanding his
evidence that he had last consumed the drug several days prior to the morning of
13 December 2018. As set out above, the trial Judge found that the appellant would
not have been experiencing any strong direct effects of the drug in the late hours
of 12 December 2018 or early hours of 13 December 2018. The trial Judge in
finding proved the appellant’s specific intent did not expressly have regard to the
possible rebound or persistent indirect effects of the drug. However, she had earlier
summarised the evidence of Professor White and referred to the possibility for a
heavy user of methylamphetamine who has ceased using the drug to experience
persistent effects of the drug including paranoia and rebound effects including
fatigue, irritability, and depressed mood. That being so, we are satisfied the trial
Judge did have regard to the whole of the pharmacological evidence in finding the
appellant’s specific intent proved, and her Honours reasons were not inadequate in
that regard.
Inadequate reasons in relation to exclusion of excessive self-defence and
provocation
216 The appellant complains that the trial Judge’s reasons were inadequate in
relation to her finding that the prosecution had disproved excessive self-defence
and the partial defence of provocation. For the reasons already outlined, those
findings was open to the trial Judge.
217 In relation to disproving self-defence, we are satisfied the reasons were not
inadequate given the trial Judge:
expressly referred to the appellant’s submissions on excessive
self-defence;
undertook a detailed analysis of the evidence and made factual findings
as to the circumstances in which the appellant inflicted the fatal injury
as we have already outlined above;
explained the basis for finding that the appellant’s evidence was tailored
to bolster his version of events;
outlined the law on self-defence in accordance with s 15 of the CLCA
before concluding that excessive self-defence does not arise (on the
facts as found); and
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[2023] SASCA 5 The Court
45
considered the psychological evidence assuming self-defence does
arise (contrary to her findings) before concluding that on the appellant’s
own account (which had been rejected), there was no threat to the
appellant at the time he inflicted the fatal liver injury and found proved
beyond reasonable doubt that the appellant did not genuinely believe
his conduct was necessary and reasonable to defend himself.
218 In relation to provocation, we are also satisfied the trial Judge’s reasons were
not inadequate given the trial Judge:
engaged in a detailed analysis and made the factual findings as outlined
above;
referred to the submissions of defence counsel on provocation and
noted that on the defence case, the provocative conduct was arguably
found in the appellant’s evidence that the deceased attacked him in a
relentless manner and that she would not let him retreat from the
kitchen;
explained her conclusion that, having rejected the appellant’s evidence
regarding the level of violence both he and the deceased engaged in,
provocation did not arise; and
turned to consider the issue assuming, contrary to her findings, that the
deceased’s evidence was provocative, and in assessing the gravity of
the provocative conduct had regard to the evidence of Mr Balfour and
the appellant’s evidence as to his psychological conditions.
219 We are satisfied the trial Judge’s reasons as to the appellant’s specific
intention to cause grievous bodily harm and in concluding that the prosecution had
disproved self-defence and provocation were not inadequate.
220 We would dismiss this ground of appeal.
Ground 2 – Failure to bring to account evidence of the deceased’s prior acts of
violence and violent propensity in her relationship with the appellant and others
221 The appellant contends that the trial Judge erred in failing to bring to account
evidence of the deceased’s prior acts of violence and propensity for violence
towards the appellant and former partners when: (a) deciding whether the deceased
initiated the violent altercation and her conduct during the altercation; (b) assessing
the appellant’s credibility in respect of his account of the altercation and its
escalation; and (c) applying the burden and standard of proof to the issues.
222 None of the appellant’s complaints can be sustained upon an examination of
the trial Judge’s reasons for verdict.
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[2023] SASCA 5 The Court
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223 In her reasons, the trial Judge accepted evidence relating to the deceased
having been physically violent in the past and, partly on that basis, did not exclude
the possibility that both the appellant and the deceased had in the past engaged in
altercations which involved mutual physical violence.
224 Her Honour referred to defence counsel’s submission that having regard to
the appellant’s evidence that the deceased instigated the physical conflict and the
evidence of the civilian witnesses (as to her prior violence to his and others), it was
not possible to exclude the hypothesis that the physical fight was commenced by
the deceased.
225 While her Honour found that the deceased may have physically responded to
the appellant’s ‘anger and verbal attack’, she considered that there was a marked
disparity in past aggression between the deceased and the appellant and, their
physicality. The appellant’s own evidence supported that conclusion; he agreed
that during their past altercations he would get the better of the deceased, and he
accepted that he was physically stronger than the deceased. He also admitted that
he had exercised restraint on the occasions where he had punched the victim in the
face because she was female and, therefore, he did not use all his strength.
226 The text message exchanges also revealed the appellant had been more
aggressive in his verbal abuse toward the deceased, and that he engaged in physical
threats to her which were not reciprocated.
227 The trial Judge expressly rejected the appellant’s account of his level of
violence on the morning of 13 December 2018 and set out her reasons for doing
so.
228 It can be readily seen that the trial Judge did bring to account the evidence of
the deceased’s prior acts of violence in considering the circumstances in which the
appellant inflicted the fatal liver injury, and in rejecting the appellant’s version of
events. Notwithstanding the appellant’s evidence, her Honour found that he
initiated the violent altercation. On the whole of the evidence, including the
disparity between the physicality of the appellant and the deceased, and the
difference in their levels of previous ‘mutual physical violence’, that finding was
open to the trial Judge, and adequately explained in her reasons.
229 We would also reject the appellant’s submission that the trial judge
misapplied the burden and standard of proof for the reasons outlined above.
230 We would dismiss this ground of appeal.
Conclusion
1. Permission to amend the ground of appeal is granted.
2. Permission to appeal Grounds 1, 2 and 3 is granted but the appeal is
dismissed.
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