SUPREME COURT OF QUEENSLAND

CITATION:	R v McClutchie [2015] QCA 120	
PARTIES:	R
v
McCLUTCHIE, Wayn Edward Raymond
(appellant)	
FILE NO/S:	CA No 297 of 2013
SC No 620 of 2012	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	
Supreme Court at Brisbane – Unreported, 13 November 2013	
DELIVERED ON:	26 June 2015	
DELIVERED AT:	Brisbane	
HEARING DATE:	4 March 2015	
JUDGES:	Holmes and Philippides JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made	
ORDER:	The appeal against conviction is dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of murder – where the deceased was the appellant’s de facto wife – where there was a history of domestic violence and the appellant had previously made threats to kill or harm the deceased – where the appellant punched the deceased with what he described as “ten out of ten” force, causing her to fall and hit her head – where the appellant placed the deceased’s body in the boot of a car, drove it to a remote location and set it on fire – where the appellant’s counsel argued that it was possible, on the evidence, that the appellant had acted suddenly or spontaneously in the heat of emotion when he punched the deceased – whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant delivered the punch without an intent to kill or do grievous bodily harm – whether the verdict was unreasonable
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant argued that the trial judge’s directions about intent were inadequate – where the appellant argued that the trial judge had failed to direct the jury that if there were any reasonable inference consistent with an absence of intent, they should acquit, even if there were also a reasonable inference consistent with guilt – where the trial judge directed the jury that they could only draw inferences based on facts proved by the evidence – where the appellant argued that the trial judge should have distinguished between inferences to be drawn against the appellant and those to be drawn in his favour – whether the directions were inadequate
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where a witness gave evidence that the appellant had told him the deceased struck the appellant before he punched her – where the appellant argued that the trial judge should have informed the jury that they could have regard to this evidence in relation to intent – where the appellant further argued that the trial judge should have directed the jury to consider the appellant’s actual emotional state and its potential effect on his capacity to think clearly – whether the directions were inadequate
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, considered
Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56, considered
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, cited
R v McIntyre (2000) 111 A Crim R 211; [2000] NSWCCA 6, considered
Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, cited	
COUNSEL:	S Hamlyn-Harris for the appellant (pro bono)
B J Power for the respondent	
SOLICITORS:	No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	HOLMES JA:  The appellant was convicted of the murder of Noelene Beutel on 29 June 2011.  There is, and was, no dispute that he had killed Ms Beutel, his de facto wife; the grounds of appeal turn on the element of intent.  They are, that the verdict was unreasonable, because there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that the appellant had an intention to kill or do grievous bodily harm; and that the directions on intent were inadequate, giving rise to a miscarriage of justice.
The relationship between the appellant and the deceased over the six months before the killing
[2]	The appellant had lived with Ms Beutel for two or three years, and they had a daughter who was 21 months old at the time of Ms Beutel’s death.  Both the appellant and Ms Beutel were users of methylamphetamine.  The Crown adduced evidence of threats and violence in their relationship.  Two brothers who had met the couple in a social context at Christmas 2010 gave evidence of an incident in which the appellant had said that he was thinking of getting a facial tattoo; Ms Beutel had said that that would be the day she left him; and he had responded that that would be the day they found her dead in a burnt out car.  Ms Beutel said nothing further.  However, both brothers said that the couple appeared to be joking.
[3]	In January 2011, Ms Beutel was seen at the emergency department of a local hospital with a laceration over her right eye and bruising around the eye, two fractured teeth, a small cut on her finger, tenderness around her stomach, kidneys and shoulders, and signs of concussion.  She was admitted to the hospital, but the injuries were not of sufficient seriousness to prevent her discharge later that day.  She informed the medical officer who saw her that the appellant had hit her with his fists around the head, face, shoulders, back and abdomen, knocking her out, and she believed he had smashed a glass over her left hand.  Before her discharge, Ms Beutel was interviewed by a social worker, but did not want to go to emergency accommodation.  She declined to make a complaint to a police officer who saw her in hospital; but, on 24 January 2011, she applied to the Magistrates Court for a Domestic Violence Protection Order which would require the appellant to be of good behaviour to her.  In the application, she described the assault in similar terms to the history taken at the hospital.
[4]	In the following days, Ms Beutel was seen a number of times by her general practitioner, to whom she also gave an account of the assault by the appellant.  She told him then that she intended to end the relationship; but at later appointments, she said that the appellant had started to attend anger management classes, which had lessened his volatility.  The appellant was also a patient of the general practitioner, who described him as suffering severe and ongoing back pain and arthritis in his hip for which he was prescribed Oxycontin, an opiate-based analgesic; he was also prescribed Xanax for panic attacks, as well as anti-depressants.  Ms Beutel, too, was prescribed Oxycontin for migraine and Xanax for anxiety.  On 14 June 2011, both she and the appellant saw the doctor in separate consultations.  Both reported that they were having more frequent rows and thought that the Xanax was making them angrier.  The general practitioner changed their medication to Valium.  He next saw Ms Beutel on 29 June 2011, the day of her death, in circumstances to which I will return later.
[5]	Ms Beutel’s sister gave evidence that after the assault in January 2011, Ms Beutel arranged with her that over the next couple of weeks she would telephone to ensure that Ms Beutel was all right.  In April, Ms Beutel transferred $5,000 into her sister’s bank account, describing it as her “escape money”, although subsequently she drew on it for domestic expenses.
[6]	A friend of Ms Beutel’s, Michelle Brooks, who also regularly babysat her daughter, said that Ms Beutel rang her on one occasion to say that she and the appellant had had a fight which had left her bleeding from her ear and nose.  Ms Brooks’ evidence suggested, as did the general practitioner’s, that the relationship had deteriorated considerably during June 2011.  According to Ms Brooks, about four weeks before Ms Beutel’s death, the latter came to her house with a black eye and said that she had had a “big fight” with the appellant who had hit her.  (Another witness, Ms Ryder, who saw Ms Beutel a couple of weeks later confirmed that she had what looked an old bruise on her eye, which was bloodshot, as well as bruises on her arms.)  Ms Brooks said that Ms Beutel told her that the appellant had threatened to kill her and their daughter; she stayed with Ms Brooks for about two nights.  Ms Brooks took the daughter back to the appellant’s residence to visit him; later that day he telephoned Ms Beutel saying that there was something wrong with the child and he needed her help.  Ms Beutel returned to their residence.
[7]	A neighbour of the couple said that he heard arguments between them in the early hours of the morning a week or two before Ms Beutel died.  He heard a male, presumably the appellant, say “I’ll fix you, I’ll fix you for good, bitch.  I’ll get a piece of rope and fix you for good.”
[8]	Another witness, Ms Webb, who saw the couple fairly regularly, said that a couple of weeks before Ms Beutel’s death, the appellant had visited her and said that he and Ms Beutel were beginning to argue and he had left the house in order to let things settle down.  Ms Webb agreed that in her police statement she had attributed to the appellant a comment, “Noelene bashes me”, saying he had made similar comments in the past.  However, she had never seen either Ms Beutel or the appellant with any injuries, and had never seen either of them be aggressive or violent.
[9]	Troy Fursman, a friend of the appellant who had intermittently been living in the couple’s house, testified that the appellant had been threatening to Ms Beutel over the course of the month before her death, although he was unable to say exactly what the threats were.
The days leading up to Ms Beutel’s death
[10]	On 25 June 2011, Ms Brooks stayed with her son at the couple’s house.  Mr Fursman was also there, sleeping on the couch.  The following morning, Ms Brooks heard the appellant and Ms Beutel arguing in the bedroom.  She went into the room to see the appellant shouting at Ms Beutel, whom she described as “cowering” in a corner of the room with her daughter in her arms.  The appellant’s stance was angry and aggressive; Ms Brooks was unable to divert his attention.  She sought the help of Mr Fursman, who managed to distract the appellant and take him outside, where they stayed for some time talking.
[11]	Ms Beutel made a number of telephone calls that day, before informing Ms Brooks that she intended to leave the appellant.  Ms Beutel’s sister confirmed that she had received a text message on 26 June 2011, in which Ms Beutel said that she needed help.  Her husband telephoned Ms Beutel, who said that she had to be careful in what she said because there were others around, but that she was all right for the present because someone (no doubt Ms Brooks) was staying with her.  Ms Beutel also rang a friend, Ms Hollis, on 26 June and told her that the appellant was “going psycho” and had threatened to kill their daughter.  (Ms Beutel’s diary includes an undated entry referring to the appellant’s having threatened the child.)  Ms Hollis also gave evidence that Ms Beutel said the appellant had recently stabbed her, saying that next time it would be “a better job”.  That evidence is suspect; there was no evidence at all that Ms Beutel had been stabbed and Ms Hollis, who had a criminal history including dishonesty offences, had not previously mentioned any “better job next time” remark.  Ms Hollis confirmed that Ms Beutel was a methylamphetamine user and had a volatile personality.
[12]	The following day, 27 June 2011, Ms Beutel drove Ms Brooks home and then returned to her house to start organising a move.  At about midnight on 27 June 2011, a crisis counsellor with a domestic violence service received a call from Ms Beutel saying that she had gone to a friend’s home because she needed a safe place to stay, but had been unable to attract the friend’s attention.  She informed the counsellor that her partner had been awake for three or four days and was angry.  A male friend (presumably Mr Fursman) who had been staying with them, and who had assisted to calm the appellant down on other occasions, had argued with him and so had not been at the house to help.  The appellant had been “beating her really badly lately”; she described the January incident to the counsellor and said that about a week previously the appellant had made threats to kill her.  She was thinking of taking refuge at her sister’s house in Toowoomba.
[13]	The counsellor arranged for Ms Beutel to stay at a motel that night.  On a follow-up call the next day, Ms Beutel advised that she would go to stay with a friend.  Ms Ryder said that on the morning of 28 June the appellant contacted her, saying that she and her daughter had got out of their house with the clothes on their back.  Ms Ryder offered to provide accommodation, but Ms Beutel said that she would go to Ms Brooks’ house.  Ms Brooks said that at about 10.00 am on 28 June, Ms Beutel arrived at her house.  She stayed there that night.
[14]	Troy Fursman and Ben Bradbury, who also occasionally stayed at the couple’s house, both gave evidence that they spent the night there on 28 June.  According to Fursman, the appellant had smashed some things in the house, including a computer.  Bradbury said that he arrived at the property that evening to find the appellant had taken too much of his prescription medication and was waking and sleeping intermittently.  The appellant told Bradbury that he and Ms Beutel had been having arguments.
The events of 29 June 2011
[15]	On the morning of 29 June, Ms Brooks took Ms Beutel to her general practitioner because she had a migraine.  The general practitioner described Ms Beutel as being anxious, upset and uncertain as to what she would do in the future.  She reported that she had been without medication for 48 hours; the general practitioner, concerned about the effect of her withdrawing from sedatives, prescribed more.  Ms Beutel and Ms Brooks returned to the latter’s home where Ms Beutel had a sleep.
[16]	Bradbury, who had gone to his work as a concreter, received and returned some telephone calls from the appellant over the course of the day, the content of most of which he could not recall.  At 2.08 pm, he had a long conversation with the appellant, who said that he had just woken.  He thought that someone had stolen some of his property; he was unwell and felt like killing himself.
[17]	At 2.40 pm, the appellant telephoned Ms Brooks.  He asked her if Ms Beutel was going to leave him, and she answered in the affirmative.  The appellant said that he had photographs of Ms Beutel “off her face, looking dead” which would apparently be relevant if she tried to take their daughter from him.  He said, too, that he would burn the house down before he allowed her to take their daughter.  He also accused Mr Fursman of having had an affair with Ms Beutel.  That conversation lasted for about nine minutes.  At 3.00 pm, the appellant rang again and this time spoke to Ms Beutel.  Ms Brooks did not hear what was said, but Ms Beutel told her that it would be “better for everyone” that she leave.  She took her daughter with her and returned to the house she shared with the appellant, which was between five and 10 minutes’ drive from Ms Brooks’ house.
[18]	A neighbour who lived behind the property occupied by the couple said that she had been sleeping on the afternoon of 29 June when she was woken by a telephone call from her husband.  She saw that the time was 3.29 pm.  She heard yelling coming from the appellant’s house; a child was screaming, and a male voice shouted something to the effect of “just get her in the car”.  She was distracted by her own dog’s barking; when she next took notice there was silence.
[19]	Mr Bradbury finished work and returned to the appellant’s house at about 4.30 pm, to find him hosing the concrete under the house.  The appellant asked Mr Bradbury to follow him in his vehicle; he said that he had to take his car (a Holden Commodore) and his daughter somewhere.  Mr Bradbury agreed, and they immediately left the property, stopping after a few kilometres to buy petrol for Mr Bradbury’s vehicle.  At the service station the appellant used a squeegee, for cleaning windscreens, to wipe the rear bumper bar of his car.  A traffic camera showed the two vehicles crossing the highway into Sippy Creek Road at 4.58 pm.
[20]	About 100 metres along the road, they pulled over again.  The appellant asked Mr Bradbury to remain while he drove away to see someone who did not like visitors.  He returned on foot, Mr Bradbury thought after a period of five to 10 minutes, with the child and a 20 litre jerry can, from which Mr Bradbury could smell petrol fumes.  As they undertook the return journey, he asked the appellant what had happened.  The latter responded that Ms Beutel had hit him and he had hit her; she was dead; he had put her in the boot and “torched” the car.  Mr Bradbury pointed out that once the police found the vehicle they would trace it to the appellant.  The appellant said he knew that was the case.  Arriving back at his house he invited Mr Bradbury to go upstairs and smoke some marijuana, but the offer was declined.  Bradbury went elsewhere and later that evening spoke to police about what had happened.
[21]	Troy Fursman returned to the house between 5.00 and 6.00 pm.  The appellant told him that Ms Beutel had called in, left the child and departed, claiming that someone was chasing her.  Mr Fursman left the house shortly after.
[22]	At 5.46 pm, an emergency call was made about the burning vehicle.  Fire officers extinguished the fire, opened the boot and found Ms Beutel’s body.  The interior of the boot was much less damaged than the rest of the vehicle.  Ms Beutel’s body was lying on its right side in an “L” shape.
[23]	According to the pathologist who conducted an autopsy, the cause of Ms Beutel’s death was severe facial trauma, which would have caused her to inhale blood, affected her ability to breathe and probably transmitted force to her brain.  She had survived long enough to take some breaths, as was evident from the fact that she had aspirated vomit and blood.  The damage to her face consisted of multiple facial fractures, with the lower part of her face driven a centimetre to the right.  The fact that the trauma had not only moved the face to the right, but also fractured both sides of it without causing much damage to the middle, made it probable that more than one blow was involved.  It was possible, although unlikely, that Ms Beutel had suffered a single punch.  If it were a single punch, it was one applying extreme force.  There was a laceration above the right ear consistent with Ms Beutel’s head having hit something with an edge when she fell.
The appellant’s statements to police
[24]	Police officers went to the appellant’s house that night and found him asleep.  He said that he had taken cannabis and panadeine forte, and his speech was slightly slurred.  At 1.34 am the following morning, he was advised that he was under arrest for the murder of Ms Beutel.  He said that it was not he who had killed her.  The following day a record of interview was undertaken.  The appellant said that the previous day, Ms Beutel had announced her intention to stay with her friend Ms Brooks for a couple of days.  Later, however, she rang and asked him to look after their daughter.  She arrived in their Commodore with the child and a man he had never seen before.  She left with the man in their car and he had not heard any more of her since.  He had played with their daughter for three or four hours before putting her to bed at around 6.30 pm.  He went to sleep himself and the next thing he recalled happening was the arrival of the police.  The appellant expressed incredulity that somebody had killed Ms Beutel.  He denied having driven their vehicle at all.
[25]	In a subsequent interview at 2.17 pm, the appellant said that he wanted to explain what happened.  He had telephoned Ms Beutel to ask if he could talk to his daughter and Ms Beutel had said that she would bring her over.  There had been some conversation between them about rehabilitation programs.  He had said that both of them would have to undertake rehabilitation, and that had annoyed Ms Beutel.  She went to the car.  He followed to say goodbye to their daughter, and then, he said, he “must of (sic) lost it”.  All he remembered was punching Ms Beutel in her mouth before he blacked out; when he came to, all he could remember was putting her in the boot.  Questioned about the force used in the punch, he said it was 10 out of 10.  Mr Bradbury had arrived and he told him he had done something bad and needed help.  Mr Bradbury offered to follow him.  He put the child in the car seat and drove the Commodore away.  He had no particular plan; he was simply looking for a side road.  Once he found one, he used a lighter to set the vehicle on fire.
[26]	When he placed Ms Beutel in the boot, the appellant said, he thought she was dead.  She had blood on her head and on her face, more on the left side.  Before burning the car he had opened the boot and checked her pulse, but there were no signs of life.  When he had punched Ms Beutel, he did not think she would die.  Asked what was happening at the time he did so, he answered that she was screaming at the child, who was “whingeing”, wanting to stay with the appellant rather than leave.  Ms Beutel, he said, was “going off her face at [their daughter] telling her to get in the car seat, get in the car seat, I’m gonna bash you, get in the car seat”.  He thought she was in a hurry to get a “shot” and was angry because he perceived her as putting drugs before her child.
[27]	In a subsequent re-enactment, the appellant said that the couple had been talking about rehabilitation when Ms Beutel became angry with him, grabbed her bag and went down to the car with their daughter.  He followed her and said that he was having an anxiety attack and needed support.  She rejected him.  She got into the car ready to leave; he asked her what was going on and she said that she had “had enough”.  She refused to let him say goodbye to their child and he began yelling at her.  Ms Beutel got out of the car and started yelling back.  He had “just lost it” and punched her in the mouth.  She fell, and her head hit a brick on the ground.  He turned the vehicle around with his daughter still in her child seat and used a wheelie bin to lever Ms Beutel’s body into the boot.
Unreasonable verdict/insufficient evidence ground
[28]	The question whether the verdict in this case was unreasonable is that posed in Knight v The Queen,  slightly adjusted for the different facts and the Criminal Code test: whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant delivered, without an intent to kill or do grievous bodily harm, the blow which caused Ms Beutel’s death.
[29]	The appellant submitted that the jury could not have done so.  In Knight, the High Court had made it clear that the relevant enquiry was as to the existence of such a possibility on the evidence; it was not necessary that two inferences, one consistent with innocence and the other with guilt, be equally open.  There was no evidence of premeditation; the evidence pointed to the appellant’s having acted suddenly in the heat of emotion when he punched Ms Beutel; it was possible that it was a spontaneous act in the heat of the moment, the product of blind rage.  The actions he had taken after she was killed to dispose of her body were equivocal as between manslaughter and murder.
[30]	Counsel for the respondent submitted that there was evidence upon which a jury could have excluded the possibility that the appellant did not intend to do grievous bodily harm.  If there were a single blow, it was one which the appellant admitted to the police was delivered with all the force of which he was capable.  Added to that was the fact that although Ms Beutel did not die immediately from the blow, he had done nothing to seek assistance for her.  He had used the telephone to call Mr Bradbury, but he had not telephoned an ambulance.  He had set about destroying her body.  This was in a context in which he had previously threatened that if she left him, her body would be found in a burnt out car, and he had recently been making threats to kill her in the context of a violent relationship.  There was also evidence that he was angered by the prospect of her taking their child away.
[31]	In my view, it was open to the jury to reject the possibility that the appellant had punched Ms Beutel without an intent to do grievous bodily harm.  They were entitled to consider that the evidence pointed convincingly away from any theory that he had acted entirely spontaneously, without thought to consequence.  Firstly, it was relevant that this was not an incident which occurred in a vacuum; the relationship was one of increasing hostility and aggression.  The appellant had previously made threats of killing or harming Ms Beutel, and there were other incidents in which he had manifested his anger with her in violence to her.  Secondly, he admitted to police that he was angry at Ms Beutel’s behaviour towards him and their daughter at the time he struck her.  In addition, Ms Beutel was taking the child away from him in a context in which he had previously said (to Ms Brooks) that he would not allow her to do so and would respond violently.
[32]	Thirdly, the blow or blows which the appellant delivered were of massive proportions; the jury could reasonably have concluded they were meant to cause substantial and serious injury.  And fourthly, there is force in the respondent’s submission that the jury were entitled to regard the appellant’s conduct in not seeking assistance for Ms Beutel as she lay drawing her last breaths as inconsistent with his having no intent to do her serious injury.  Had the blow been impulsive, with the result entirely unintended, one might expect shock and a call to emergency services.  Instead, as late as the point at which he was about to set fire to the car, he contemplated that she might still be alive, checking her pulse; but at no stage did he seek help for her.
[33]	The jury was entitled from all of that evidence to decide that the only rational conclusion was one of intent to do grievous bodily harm, at the least.  The verdict was not unreasonable.
The trial judge’s directions in relation to intent
[34]	Early in her summing up, the trial judge gave the jury instructions about the proof of disputed facts by circumstantial evidence and its relevance to inferring intent:
“What is circumstantial evidence? Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but, instead, as pointing to its existence.  It differs from direct evidence which tends to prove a fact directly; typically, when the witness testifies about something which that person saw or heard.  As I’ve said, both direct and circumstantial are to be considered.  To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should be a rational inference, but also that it should be the only rational inference that could be drawn from the circumstances.  If there is any reasonable possibility consistent with [innocence], it is your duty to find the defendant not guilty.  This follows from the requirement that guilt, in relation to all of the elements of murder, must be established beyond reasonable doubt.
In my introductory comments on the first day I made reference to inferences, and I told you that in addition to facts directly proved by the evidence, you may also draw inferences.  That was, deductions or conclusions from the facts that you do find to be established by the evidence.  If you are satisfied that a certain thing happened, it might be right to infer that something else occurs.  That’s the process of drawing an inference from the facts.  Remember the example I gave you about the car and the keys being missing, and what inferences were open based on the facts that you found proved and then what other inferences were open because of other facts that you found proved.  So inferences are able to be drawn from facts that you find proved.
However, you may only draw reasonable inferences, and your inferences must be based on facts you find proved by the evidence.  There must be a logical and rational connection between the facts you find and your deductions or conclusions.  You are not to indulge in intuition or guessing.  Importantly, if there is an inference open which is adverse to Mr McClutchie, that is one pointing to his guilt, and an inference in his favour, that is one consistent with his innocence, you may only draw an inference of guilt if it so overcomes any possible inference as to leave no reasonable doubt in your minds.
As I told you on the first day, intent is one of the central elements of the offence of murder.  As I indicated, no one can look inside Mr McClutchie’s head.  So you will need to examine the evidence and ask yourselves whether it is proved beyond reasonable doubt that Mr McClutchie intended to kill Ms Beutel, or cause her grievous bodily harm.  In ascertaining his intention, you will need to consider whether you can draw an inference from the facts which you find established by the evidence concerning his state of mind.  Remember I told you, that in determining his intention, you can look at the things he said and did at the time of and before and after the acts in question, examine what he said to the Vlietstras, what the neighbours overheard him say, and what he told police.
You can take into account, as well, the short time period in which the punch occurred, as Mr McGuire urges.  However, you also look at the actions before the killing, and his actions in cleaning up in removing the body and trying to burn the evidence.  You should only infer Mr McClutchie’s intention was to kill Ms Beutel, or cause her grievous bodily harm, if that is the only rational inference that could be drawn from the facts as you find them.”
(Italics added.)
[35]	Returning later to the topic of intent by reference to the evidence in the case, the trial judge reminded the jury that it was necessary for the prosecution to prove beyond reasonable doubt that the appellant had formed the intent to kill or cause grievous bodily harm at the time he did the relevant acts.  There was no evidence about his actual intent, but the jury were entitled to look at the circumstances and his conduct.  Having outlined the evidence of the pathologist about Ms Beutel’s injuries, her Honour instructed the jury that they could consider the nature of the injuries and the appellant’s actions after the injuries were inflicted.  The prosecution relied on those matters as supporting an inference of intent, while the defence contended that there was a reasonable doubt on that issue.
[36]	The trial judge explained that if intent were not proved, the jury would have to consider guilt of manslaughter.  She went on to deal with self-defence (arising if the jury considered that there was evidence that Ms Beutel struck Mr McClutchie before he punched her) and provocation (as to which the defence relied on Ms Beutel’s alleged blow and her conduct more generally).  Having dealt with the Crown’s arguments, her Honour turned to summarise the defence case:
“The defence argument: the counsel for Mr McClutchie, however, argues that there is no evidence that Mr McClutchie intended to kill Noelene Beutel or cause her grievous bodily harm, and that the true state of affairs was revealed on 30 June when he thought the tapes were off and he said to the police officer that he got very angry, he just about cracked, and he was not able to pull himself back, that he just lost it, that something tipped him over the edge.
The defence argues that there is absolutely no evidence that Mr McClutchie intentionally killed Ms Beutel, and that this is clear when one examines his diary and the letter to his mother which is found in the diary indicating his efforts to fix his relationship with Noelene, but also indicating that he knew she was leaving and would call it quits if they couldn’t work it out.  It is argued that that is not correct – that it is not correct to say that he killed her because he was controlling her and could not stand the fact that she was leaving.  In particular, the defence relies on the fact that what tipped Mr McClutchie over the edge was the fact that she was eager to leave so she could get onto some speed rather than to care for [their child].”
[37]	The trial judge summarised the defence contentions, that the appellant’s conduct in disposing of the car and body should not be held against him, that the nature of the relationship was one in which Ms Beutel was herself a forthright aggressive person well able to stand up for herself, and that her death was an accident.  She continued:
“Mr McGuire reminded you that the evidence was that Mr McClutchie was a quiet and polite man who was in a lot of pain and having significant problems with medication.  He referred to the fact he was described by witnesses as a good father and a big softie.  He referred to Noelene’s depression and the fact she was asleep a lot and had threatened to kill herself previously.  The defence argues that Noelene’s death was, in fact, an accident because it was not foreseeable that her death would result from this punch, and an ordinary person would not foresee it either.  The defence argued that this was not an intentional killing because no thought process was involved at all and it occurred in a split second.
Mr McGuire argues that you cannot infer that he intended to kill her simply from the punch.  He argues that Mr McClutchie simply reacted and did not think at all.  It was argued that he was simply punching and not thinking.  Mr McGuire points out that when Mr McClutchie was asked what he was thinking when he punched her, he replied that he was shocked that he’d actually hit her.  He stated that up to that point, he had been trying to talk things rationally over with Noelene.  He reminded you that just because Noelene had died does not mean that Mr McClutchie intended to kill her.  He argued that you could not work backwards to say because she died, he therefore intended to kill her.”
The inadequate directions ground
[38]	The appellant contended that the directions relevant to intent were inadequate, making it likely that the jury had not properly considered whether the reasonable possibility that he had punched Ms Beutel without the necessary intent could be excluded.  The first set of arguments concerned her Honour’s directions as to the drawing of inferences.  As the Crown case on intention was circumstantial, the jury should have been directed, in accordance with Knight, that if there were any reasonable inference consistent with an absence of the necessary intent, they should acquit, even if there were also a reasonable inference consistent with guilt.  It was also of concern that in her general direction as to circumstantial evidence, the trial judge had informed the jury that they could only draw inferences based on facts they found proved by the evidence.  That was true, the appellant contended, of an inference to be drawn against him, but not of an inference which might be drawn in his favour.
[39]	On the first point, the trial judge’s directions in my view entirely conformed to what was said in Knight.  Her Honour at no stage committed the error identified in that case, of suggesting that competing inferences of guilt and innocence had to be equally open.  Having adverted to a scenario in which there were competing inferences, her Honour told the jury that the inference of guilt could only be drawn “if it so overcomes any possible inference as to leave no reasonable doubt”.  The “possible” inference, in context, plainly was a possible inference of innocence.  That was consistent with her Honour’s broader instruction that the jury must acquit if there were any reasonable possibility consistent with innocence.
[40]	As to the second point, that it was wrong to tell the jury that inferences had to be based on proved facts without distinguishing inferences to be drawn in his favour, the appellant relied on the decision of the New South Wales Court of Criminal Appeal in R v McIntyre.  In that case, the appellant was convicted of setting fire to his former de facto wife’s house.  On his behalf, it was suggested to the jury that his former wife or her children might accidentally or deliberately have caused the fire.  The trial judge instructed the jury that there was no evidence of that occurring; they could not speculate and were permitted to draw inferences only from evidence.  Hulme J said this:
“The appellant was entitled to be acquitted if the Crown could not exclude all reasonable hypotheses consistent with innocence.
Such hypotheses must, as I have said, be reasonable.  But a jury does not have to be able to infer that an event, the subject of such a hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event.” 
His Honour went on to give the example of a case of rape based on circumstantial evidence that the offender was a particular person, in a context where windows of the victim’s home were open and other persons were acting suspiciously in the vicinity; there would be a reasonable possibility in that instance that someone else was the offender.  A second example was that of a fire starting on a wooden bench where the property owner had earlier been ironing, and gave evidence that he thought he had turned the iron off.  The circumstances might not justify an inference that the iron was left on and caused the fire, but it would be a reasonable possibility.
[41]	I do not think that McIntyre has anything to say about the correctness of her Honour’s directions about the drawing of inferences.  There is, in my view, a distinction between the approach to be taken in drawing inferences from the evidence in relation to a particular issue and the larger question of whether, on the whole of the evidence, there exists a possibility or hypothesis of innocence which is both reasonable and consistent with the evidence.  Hulme J’s comments in McIntyre related to the latter, as did the High Court’s decision in Barca v The Queen.
[42]	In Barca, the applicant was charged with the murder of his brother-in-law.  There was evidence that the applicant’s father had motive and an opportunity to commit the murder and had threatened the deceased, but there was no evidence at all that he had been involved in his killing.  A majority in the High Court held that the trial judge had erred in directing the jury that it would be wrong for them to acquit on the theory that the father might have been responsible for the murder because it was without foundation in the evidence:
“… the learned trial judge was perfectly correct in saying that there was no evidence that the applicant took the deceased to [his father’s] house or that [the father] fired the shots that killed the deceased.  However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference.  If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.”
The trial judge in the present case correctly directed the jury that if there were any reasonable possibility consistent with innocence they should acquit, pointing out that the proposition followed from the requirement that guilt be established beyond reasonable doubt.
[43]	The appellant next contended that the trial judge’s directions on intent were deficient because they did not inform the jury that they could have regard to Mr Bradbury’s evidence of being told that Ms Beutel struck the appellant before he hit her.  Instead, her Honour had referred to that evidence only in the context of its relevance to whether self-defence was available.  The appellant suggested that there was no rational forensic explanation for defence counsel’s failure to ask the judge for a direction on the significance of the evidence in relation to intent.  In addition, the jury were not directed to consider the appellant’s actual emotional state and its potential effect on his capacity to think clearly, as opposed to how a reasonable person might have acted.
[44]	In fact, the trial judge raised the evidence of the claimed blow by Ms Beutel not only in directing on self-defence but as an act on which the appellant relied in relation to provocation.  The appellant is correct, though, in pointing out that her Honour did not tell the jury that if they thought there existed a reasonable possibility that Ms Beutel had hit the appellant, causing him to retaliate without the necessary intent, they should acquit.  However, from her Honour’s summing up of the defence case, it does not appear counsel invited the jury to consider the possibility of Ms Beutel’s striking the appellant in relation to intent, as opposed to emphasising its significance in relation to self-defence and provocation.  No redirection was sought on the topic.
[45]	In my view, defence counsel may have thought that since the alleged blow was raised in the context of provocation, in a suggestion of retaliation with intent to harm, the jury were likely to look on it as providing a motive for a desire to injure, rather than the contrary.  That would be a reasonable assessment; the appellant may well have been better placed by having the jury consider intent in a context of unthinking anger produced by the general circumstances of Ms Beutel’s departure.  Although a trial judge must, notwithstanding counsel’s abstention from raising an argument, give
“…an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part”
it is not incumbent on a trial judge to raise a proposition which may actually be to the defendant’s disadvantage.  In the circumstances, I am not persuaded that a miscarriage of justice resulted from the absence of a direction which attributed significance to the alleged blow.
[46]	It is the case that the jury were not specifically directed to have regard to the importance of the appellant’s emotional state at the relevant time.  However, no direction to that effect was sought.  The jury was reminded of what defence counsel had said about the appellant’s emotional state and the pressures acting on him.  The trial judge had pointed out that it was necessary to examine the evidence in ascertaining intention, because no one could look inside the appellant’s head; emphasising the centrality of his perspective.  She also told the jury that in ascertaining the appellant’s intention, it was necessary to consider whether an inference could be drawn from the facts concerning his state of mind.  I do not think that there is any risk that the jury failed to appreciate that their focus should be on the appellant’s actual state of mind, or that there was any miscarriage of justice in this regard.
Order
[47]	I would dismiss the appeal against conviction.
[48]	PHILIPPIDES JA:  I have had the advantage of reading the draft reasons of Holmes JA and agree with the order proposed.
[49]	DOUGLAS J:  I also agree with Holmes JA’s reasons and proposed orders but wish to add some brief further comments.
[50]	Mr Hamlyn-Harris for the appellant submitted that her Honour’s directions to the jury on proof of an intention to kill did not refer to the evidence of Mr Bradbury, that the appellant told him that Ms Beutel had hit him and that he hit her.  The appellant did not mention any punch by Ms Beutel in what he said to police.  He only mentioned it to Mr Bradbury.
[51]	The submission for the appellant was that her Honour’s directions gave the distinct impression that that evidence was relevant only to self-defence.  That part of the directions included a discussion of the prosecution’s obligation to establish the element of intention.  The submission for the appellant was, however, that the evidence of Mr Bradbury was also relevant to the appellant’s emotional state and to the issue of whether the prosecution had established that the appellant did intend to kill her.
[52]	Her Honour’s directions as to intention included significant references to defence counsel’s submissions at the trial that the appellant’s emotional state argued against him having the necessary intention.  That part of the directions was not long after her reference to the evidence relevant to the issue whether there had been a punch thrown by the deceased before she was hit by the appellant.  Her Honour mentioned, in particular, the argument made by defence counsel that what tipped the appellant over the edge was the allegation that Ms Beutel was eager to leave so she could “get onto some speed rather than to care for” their daughter.
[53]	Nothing her Honour said discouraged the jury from also considering the possibility that the appellant had punched Ms Beutel without the necessary intent because she had punched him.  Her Honour, in the passage from her directions extracted by Holmes JA at [37], reminded the jury explicitly of defence counsel’s argument that it was not an intentional killing, because no thought process was involved at all and it occurred in a split second.
[54]	That she did not repeat the evidence relevant to the issue whether Ms Beutel had punched him in this context did not discourage the jury from taking that evidence into account in respect of the issue of intention.  In my view there has been no miscarriage of justice established in respect of this submission.