A defence barrister has argued Alan William Delaney’s murder conviction should be overturned due to “gross discrepancies and contradictions” in evidence used to convict him.
Defence barrister John Purnell SC was given permission by the Sydney Court of Criminal Appeal on Wednesday (5 July) to make a last-minute change to Delaney’s appeal.
He had originally wanted to argue his client’s murder conviction should be downgraded to manslaughter, but he changed this to appealing for Delaney’s acquittal of both murder and manslaughter due to a “demonstrated uncertainty” in the evidence about “what happened and when”.
Delaney assaulted Mr Baxter under a Queanbeyan bridge at about 8:30 am on Boxing Day, 2019. At around 11 am, Mr Baxter died in hospital due to a ruptured spleen.
The judge who sentenced Delaney acknowledged Mr Baxter’s spleen was vulnerable to rupture as it was severely diseased but was satisfied Delaney’s attack caused the fatal incident.
Mr Purnell argued Delaney didn’t intend to kill Mr Baxter and pointed to the fact he walked away after the assault while Mr Baxter was still alive and broke down in tears when police later informed him Mr Baxter had died. However, his central argument sought to overturn the assertion that Delaney’s assault had been the cause of the fatal rupturing of Mr Baxter’s spleen.
He argued evidence provided by a witness who claimed to have seen Delaney kneeing Mr Baxter in his mid-section was full of discrepancies, contradictions and inadequacies.
The court heard the witness initially told police, “I don’t remember seeing him [Delaney] kneeing him [Mr Baxter]”, but later during Delaney’s trial, said Mr Baxter was kneed by Delaney.
“That evidence is so unsatisfactory,” Mr Purnell said. He asked the panel of three justices to determine whether the evidence was of sufficient nature and quality to be relied on for a conviction.
Mr Purnell suggested Mr Baxter’s fatal spleen rupture occurred when he tried to walk back to where he was staying at the Kent Hotel in Queanbeyan after being assaulted.
He pointed to evidence provided by another witness who was with Mr Baxter at the time, that he fell twice during this period. Mr Purnell said the evidence indicated Mr Baxter first hit his head against a wall, causing him to fall to the ground, and then after he attempted to stand, he fell again and, without putting his hands out to break his fall, landed on his stomach.
Mr Purnell said Mr Baxter had been drinking before the assault and the person who made the ambulance call on his behalf said he had been “drinking just a couple of minutes ago”.
He argued Mr Baxter’s first fall was “substantially due to intoxication” and the second fall occurred because of a combination of intoxication and injury from the first fall.
The prosecutor said the “only reasonable hypothesis” was Mr Baxter’s spleen was ruptured due to the assault and the trial jury had accepted the “clear evidence” provided by the witness whose reliability was questioned by the defence. He said Mr Purnell “cherry-picked” the witness’ responses, and they had clearly recalled Delaney kneeing Mr Baxter’s mid-section during the trial.
He also pointed to the “immediate aftermath” of the assault, when a witness described Mr Baxter as appearing drunk and “flaked out with his head in the gutter”.
The court heard expert evidence provided during the jury trial described the symptoms of a ruptured spleen as similar to those of intoxication. The prosecutor also rejected that Mr Baxter had continued drinking after the assault and said a witness described Mr Baxter’s post-assault falls as a “whack at the back,” which was not consistent with a face-forwards fall onto his stomach.
Delaney shook his head as the prosecutor then read a series of his Facebook messages which he said demonstrated Delaney’s intent to cause serious harm to Mr Baxter, but Mr Purnell dismissed these as “drunken bravado”. One message 20 minutes before the assault read, “Now I’m going to snap”. Witnesses also heard Delaney shouting, “I’m going to kill you”, to Mr Baxter prior to the assault.
The panel of three appeal court justices, Anthony Payne, Kristina Stern and Dina Yehia, reserved their decision until a later date.