He said she didn’t complain about any pain, and that he thought the blood was menstruation.
Attwater told police Ms Daley collapsed while they were swimming at dawn. Maris called triple zero just after 6am as Attwater could be heard swearing at his unresponsive girlfriend. By the time paramedics arrived, she was blue, cold, and rigor mortis had set in.
Maris, in the meantime, had burnt a mattress covered in her blood as well as her clothes; he said, because it “smelled foul” – a claim the Crown also construed as a lie.
Ms Manuell said Justice Fullerton had initially permitted the Crown to characterise Attwater’s account to police as “an integrated course of deliberate lies with the intention to conceal what he knew” and “a preposterous story” – and therefore evidence of his consciousness of guilt.
However, that ruling was later walked back. Rather than being permitted as evidence of Attwater’s consciousness of guilt, his apparent lies could only be used against his credibility as a witness.
By that point, Ms Manuell said, the earlier ruling had already left an impression in the juror’s minds that put the defence counsel at a disadvantage, and it was impossible “to unscramble the egg” with later directions.
“The problem was there were mixed messages that must have confused the jury no end, I would submit,” Ms Manuell said.
“Given they were out for only 32 minutes, one can assume from that this issue did not cause them any great concern, but in my submission it should have.”
Convicted of Ms Daley’s manslaughter and aggravated sexual assault, Attwater was subsequently sentenced to 19 years in prison with a 14-year non parole period. Maris was sentenced to nine years, with a non parole period of six years and nine months, for aggravated sexual assault and hindering a police investigation.
In addition to the directions given to the jury, the men are appealing their convictions on grounds that the verdicts were unreasonable, or could not be supported by the evidence.
Ms Manuell said it was “mostly a circumstantial case” and that “the risk of the jury proceeding on the basis of doubtful facts overwhelmed by emotion was extremely high”.
She said the evidence left a significant degree of doubt about Ms Daley’s degree of intoxication, whether she had the capacity to consent to the sexual intercourse and, if not, whether her client knew she wasn’t consenting, and whether he was aware or should have been aware of the seriousness of her injuries.
The appeal continues.
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Jenny Noyes is a journalist at the Sydney Morning Herald.