Director of Public Prosecutions v Ackerley (No 1)
[2021] VSC 189
•20 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0162
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| MICHAEL ALLAN ACKERLEY | Accused |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 April 2021 |
DATE OF JUDGMENT: | 20 April 2021 |
CASE MAY BE CITED AS: | DPP v Ackerley (No 1) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 189 |
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CRIMINAL LAW – Manslaughter – Unlawful and dangerous act – Guilty plea – Contested plea hearing – Dispute as to facts – R v Storey [1998] 1 VR 359 – Whether Crown case that fatal wound was caused by deliberate strike capable of proof beyond reasonable doubt.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | G Hayward | Office of Public Prosecutions |
| For the Accused | J William with S Gillahan | Victoria Legal Aid |
HER HONOUR:
The accused, Michael Allan Ackerley, pleaded guilty to one charge of manslaughter by unlawful and dangerous act resulting in the death of Matthew Baum between 9 and 10 February 2020 (‘the fatal altercation’).
Mr Ackerley was charged with murder on 10 February 2020. On 10 July 2020 he was committed to stand trial, and the matter was fast-tracked to the Supreme Court under measures designed to reduce the backlog of criminal trials due to COVID-19.
Mr Ackerley was arraigned and pleaded guilty to manslaughter on 15 January 2021, and the matter was listed for a contested plea before me.
The Crown Opening on the Contested Plea is largely agreed, except in so far as it asserts that Mr Ackerley deliberately struck Mr Baum with the knife. Mr Ackerley claims that he firmly held the knife in Mr Baum’s direction when Mr Baum came into contact with it.
At a hearing on 16 April 2021 the Crown led evidence and the parties made submissions on the disputed facts. The parties agreed that the full plea in mitigation could not proceed until after I handed down my ruling on this point.
Factual background
Events leading up to the incident
The Crown’s account of the events in the days preceding the incident was not disputed by Mr Ackerley.
At the time of his death Mr Baum lived with Mr Ackerley at a property at 265 Patullos Road, Lara (‘the property’). They had lived together since 2019. [1] At that time, two other men also lived at the property, Bradley Humphrey and Joshua Kostecki although the latter only lived there occasionally. At the time of the incident Mr Humphrey resided in a shed on the property.
[1]Statement of Dianne Martin, 3 May 2020, 4.
Mr Humphrey attests to overhearing a verbal dispute between Mr Ackerley and Mr Baum on Saturday, 8 February 2020.
The following day, Sunday, 9 February 2020, Mr Humphrey was with Mr Baum when they each bought some alcohol. Mr Baum went to dinner with another friend, Tony Meyer, where he drank approximately three VBs before leaving for home at approximately 8:00 or 9:00pm.[2]
[2]Statement of Tony Meyer, 10 February 2020, 2 [11].
Once he returned home, and before approximately 9:30 or 10:00pm, Mr Baum was seen drinking together with Mr Humphrey and Mr Ackerley.[3] Mr Kostecki described them as ‘getting along’ and noted that no one was particularly intoxicated.[4]At some stage Mr Baum and Mr Humphrey moved to the shed, where they drank spirits and smoked bongs of cannabis.[5]
[3]Transcript of Proceedings, R v Ackerley (Supreme Court of Victoria, S ECR 2020 0162, Kaye J, 23 September 2020) (‘T’) 36; Statement of Joshua Kostecki, 10 February 2020, 2.
[4]Statement of Joshua Kostecki, 10 February 2020, 2.
[5]T08-09. Bradley Humphrey’s evidence was that is that he and Mr Baum shared Wild Turkeys, Mr Humphrey drank three beers and they both had ‘three or four’ shots of Ballantine’s whiskey.
Prior to midnight Mr Baum mentioned to Mr Humphrey that his phone was missing. Mr Baum left the shed, where Mr Humphrey remained.
Mr Baum and Mr Ackerley were heard arguing.[6]Mr Baum returned to the shed with his phone. He reported to Mr Humphrey that he had ‘bashed’ Mr Ackerley and put his ‘head into the ground in the kitchen’ because he believed his phone had been moved or stolen.[7]
[6]Second Statement of Bradley Humphrey, 10 February 2020, 1
[7]T15.12; Second Statement of Bradley Humphrey, 10 February 2020, 2.
At 11:45pm, Mr Ackerley rang Mr Kostecki, who was no longer at the property, and said words to the effect of, ‘He/they bashed me’, and, ‘He got me’.[8] He also sent a text message at 11:49pm attaching a photo of himself with what appeared to be blood on his forehead and a swollen right eye.[9] He left a voicemail message stating:
Hey Josh if you don’t do anything, I’m fucking off altogether from your business. I know how to get through if everything gets blamed on me. Been told by my NDIS how to get out of it anyway. That’s up to you guys but if you don’t sort this out, I’ve had enough. No fuck off Brad! You can take your mate up the road. I’m gunna cut his car up.[10]
[8]T37.05.
[9]‘Timeline – Mobile Phone – Ackerley, Michael’, 1; Statement of Tony Meyer, 10 February 2020, 3 [14].
[10]‘Video – Physical Examination – mobile phone – KOSTECKI, Joshua’.
At 11:55pm Mr Baum sent a message to Mr Meyer stating:
I just punched Mick in the head twice coz I thought he stole my mobile phone he’s bleeding from the forehead what do I do Bro?.[11]
[11] ‘SMS Records – Baum, Mathew’, 1; ‘Photobook “Screenshot of mobile phone – MEYER, Tony” – photo’.
The fatal altercation
Mr Humphrey returned to the house where he saw Mr Ackerley standing alone in the kitchen, behind the kitchen bench. Mr Humphrey noticed injuries to Mr Ackerley’s face – a black eye, scratches and bruising. Mr Ackerley reported to Mr Humphrey that Mr Baum had ‘bashed him’ and pointed to his face stating words to the effect of, ‘Look what he done to me’.[12] Referring to Mr Baum, Mr Ackerley said to Mr Humphrey, ‘You better get him out of here before I kill him’.[13]
[12]T19.
[13]Ibid.
Mr Ackerley was later observed by forensic physician, Dr Ghumman, with two bruises to his forehead, a bruise under his right eye and to his right cheek, a left black eye, a graze to his left shoulder blade, small bruises and abrasions to his hands, and five linear marks on the palm of his right hand.[14]
[14]Second Statement of Dr Rayman Ghumann, 6 March 2020.
Dr Sungaila, a forensic physician, estimated that at the time of the fatal altercation Mr Ackerley’s blood alcohol level would have been between approximately 0.05% and 0.08%. Mr Ackerley later reported having consumed more than five cans of Jack Daniels.[15]
[15]T66.
The toxicology report produced at autopsy showed that Mr Baum had a 0.17% blood alcohol level, which the pathologist considered to be a relatively accurate reflection of his blood alcohol level at the time of his death.
At around or after midnight, Mr Baum returned to the house and into the kitchen, moving around the kitchen bench where stand next to Mr Ackerley was also standing. There was a physical altercation between them which Mr Humphrey describes as ‘bitch slapping’, pushing and a ‘bit of a wrestle’ which lasted for five to 10 seconds, in which neither was ‘winning or losing’.[16]
[16]T24.23-25.17; T25.24.
During this altercation Mr Baum’s groin was pierced by a knife held by the accused. It is agreed that Mr Humphrey did not see the knife or Mr Ackerley strike Mr Baum with it.
Mr Humphrey saw Mr Baum exit the kitchen, bleeding heavily, and walk outside to the adjoining carport. Mr Baum collapsed between the two cars in the carport where Mr Humphrey found him gasping for air but otherwise unresponsive.
Mr Humphrey confronted Mr Ackerley, who was still inside the house, asking, ‘What have you done?’. Mr Ackerley said he wanted, ‘Matty gone, he wanted Matty to leave.’[17]
[17]T27.14.
The accused called 000 at 12:07am and requested an ambulance. During that call he said:
‘This cunt’s bashing me and the only way I can get him off’ …
‘He tried to bash me and the only way I can get him off me was to stab him’ …33
‘Now he’s bleeding, I want an ambulance for him’ and ‘We’ll have to bury him’.[18]
[18]Transcript – 000 Calls, 3.
Mr Ackerley called Mr Kostecki at 12:10am audibly upset and crying, saying ‘He’s dead.’ Mr Humphrey then spoke to Mr Kostecki who confirmed, ‘He’s dead’, telling Mr Kostecki that ‘He’s been stabbed’.[19]
[19]Statement of Joshua Kostecki, 10 February 2020, 2.
At some stage before 12:22am Mr Ackerley was observed by Mr Humphrey mopping up the blood in the kitchen and in the carport.[20]The police later observed the damp floor of the kitchen, blood on the steps, verandah and gravel, and mop marks in the carport and later tested a mop fibre and confirmed it contained traces of Mr Baum’s blood.[21]
[20]T28.
[21] Statement of Leanne Gann, 4 March 2020, 3.
Mr Ackerley spoke again with Mr Kostecki at 12:18am. When asked if Mr Baum was still alive he said, ‘I don’t think so’. Mr Kostecki told Mr Ackerley to call an ambulance and the police. Mr Ackerley confirmed an ambulance was on its way, and noted that ‘He came for me, I stabbed him’.[22]Mr Kostecki encouraged Mr Ackerley to speak to a lawyer before saying anything.[23]
[22]Statement of Joshua Kostecki, 10 February 2020, 3.
[23]T43.
At 12.22am Mr Ackerley called 000 again. During this call he said:
This bloke attacked me, bashed me head into the floor. The only way I could get him off me … is to stab him and I think he died in my yard.[24]
[24]Transcript – 000 Calls, 7.
The ambulance officer attempted to direct Mr Ackerley to provide first aid to Mr Baum. During that exchange, when asked about the knife Mr Ackerley said:
No, I’ve got rid of it – I’ve got rid of the knife anyway.[25]
[25]Transcript – 000 Calls, 11.
At 12:28am and while Mr Ackerley was still on the phone to 000 the police arrived. When Sergeant Gray arrived at the scene, he saw Mr Ackerley kneeling over Mr Baum, on the phone to 000, with his hand on Mr Baum’s torso. Police could not find a pulse. Another officer started CPR while Sergeant Gray arrested Mr Ackerley.
While being moved to the police vehicle Mr Ackerley said to First Constable Longworth, as captured on body-cam footage:
I’m very sorry, but he shouldn’t have attacked me first man. It was the only way I could get him off me. He smashed me head into the concrete.[26]
[26]Statement of Ashley Longworth, 11 February 2020, 5 [11].
And later:
Well what happened was, he [referring to Mr Baum] come round accusing me of knocking his phone off. I said no I didn’t take it and he smashed me head into the concrete a couple of times. I told him to get off but he wouldn’t get off, and what was beside me was a knife and I stabbed him. That’s the only reason I could get him off anyway.[27]
[27] Ibid 6 [9].
Transcript of Footage of Body Worn Camera worn by Ashley Longworth, 10 February 2020.
During a conversation with Detective Senior Constable Powley at 12:55am Mr Ackerley said:
I give him a warning. I said if you keep bashing me in the ground on the concrete with me face, if you don’t stop it I’m just gonna pick up this thing beside me and stab you and he kept going and he didn’t listen to me and it’s the only way to get him off the top of me. Or he woulda kept bashing me face into the concrete. Brad, his mate, comes over to me and goes ‘shouldn’t worry he’s only pissed at the time’. Well I said ‘Well he shouldn’t attack me like that.54
The ambulance then arrived and paramedics attempted to revive Mr Baum, but he died at the scene.
Mr Ackerley was taken to Geelong police station in custody. He was not interviewed immediately as his blood alcohol level was deemed too high. Following a medical examination he was deemed fit, and was interviewed at 3:32am. He told police:
Look at my face and body…why would I do it when somebody’s been on top of you belting the living daylights, hitting your head into the concrete? What, are you going to stand there and not pick anything up and try to get him off?[28]
[28]Record of Interview of Michael Ackerley, conducted by Simon Powley, 10 February 2020 3:32am, 73.
Mr Humphrey was taken to Geelong police station for questioning. He initially gave a false account of the night’s events, stating that he was asleep during the fatal altercation. He was later arrested after it became clear from a photo of him and Mr Baum that he had been present at some stage of the fatal altercation.
Neither party disputed Mr Humphrey’s eventual account, given in a second statement to police at 6:39pm on 10 February 2020, including his assertions that he did not see Mr Ackerley holding the knife, nor Mr Baum suffer his wound.[29]
[29]T12–13.
On the morning of 10 February 2020 the police located the knife in a bedroom at the property. The knife was 47cm long and had no handle. Mr Ackerley did not dispute that he had held this knife, nor that it had been the cause of Mr Baum’s fatal injury.
Submissions
The parties agree that Mr Baum’s death was caused by a single knife wound inflicted during an altercation, at a time when both Mr Baum and Mr Ackerley were affected by alcohol, and after an earlier physical and verbal fight.
The Crown’s submissions
The Crown submits that the Court can be satisfied beyond reasonable doubt that Mr Ackerley deliberately struck Mr Baum with the knife while both were standing behind the kitchen bench.
The Crown concedes that they are not able to say when Mr Ackerley took hold of the knife nor where it was located prior to the fatal injury. However, they submit that there is sufficient circumstantial evidence to prove deliberateness to the requisite standard.
First, the Crown points to the fight between Mr Ackerley and Mr Baum earlier that night and Mr Ackerley’s response to being ‘bashed’. They rely on the following evidence to infer that the assault was still operating on his mind.
(a) Mr Humphrey’s evidence that the two had argued;
(b) Mr Ackerley’s messages to Mr Kostecki that he had been bashed and threatening some kind of retaliation, stating, ‘I’m gunna cut his car up’; and
(c) Mr Humphrey’s evidence that immediately before Mr Baum returned to the house and entered the kitchen Mr Ackerley was ‘fiery’ and told Mr Humphrey that Mr Baum had ‘bashed’ him.
Secondly, the Crown relied on Mr Humphrey’s evidence of the way Mr Baum approached the kitchen, and what Mr Humphrey saw of Mr Ackerely and Mr Baum’s physical altercation, to dispel the notion that Mr Baum moved rapidly towards the knife held firmly in Mr Ackerley’s hand while Mr Ackerley stood inert. The Crown submitted that as he walked towards Mr Ackerley, and then both were slapping each other, it was not the case that Mr Baum came at Mr Ackerley and ran into the protruding knife. As detailed by Mr Humphrey at the s 198B Criminal Procedure Act 2009 (Vic) hearing:
Q: … When Matt [Mr Baum] came in did he storm straight up through the door or did he walk in or how was he?---Just walked straight in and to the bench.
Q: Did Mick move from where he was?---No.
Q: Did you move from where you had been immediately opposite? ---No.
Q: No. So you remained right opposite Mick?---Yep.
Q: When Matt comes in does he say anything?---No. He walked, he walked around the corner of the bench and in front of Mick.[30]
[30]T22-23.
…
Q: Now, I take it that there's then a confrontation which occurred between Mick and Matt, is that right?---There was a scuffle.
Q: When you say there was a scuffle can you tell the court what you saw?---Just pretty much them just going like that.
Q: So you've moved - - -?---A bitch slap, a bit of bitch slapping and, yeah.
Q: When you say going like that you were moving of your hands around in a slapping motion. Is that what they were doing?---Both of them were trying to, like, pushing each other and stuff.
Q: Right. And so Matt comes in and started pushing Mick, is that right?---No. I think they both just started at the same time.
Q: Was anything being said?---No.
Q: Where were you standing when that was happening?---On the other side of the bench still.
Q: Did they move around the kitchen area?---No.
Q: Apart from the slapping did you see Matt strike Mick?---No[31]
[31]T24-25.
Thirdly, the Crown contends that the fact that Mr Humphrey did not see Mr Ackerley strike Mr Baum was a product of his position behind the kitchen bench, and the site of the wound in Mr Baum’s groin, and not because there was no such strike.
Fourthly, it is put that it is highly implausible that Mr Ackerley held the sizeable knife out rigidly and that Mr Baum did not see it as he approached and scuffled with Mr Ackerley, and that Mr Humphrey could not see it from behind the bench.
The Crown rely on:
(a) the unusual size of the knife, which was displayed to the Court;
(b) the 12cm depth of the wound in a relative straight line from entry point towards Mr Baum’s back;
(c) the V-shape of the incision, which pathologist Dr Young considered to be indicative of a ‘side to side’ movement of the knife; and
(d) Dr Young’s opinion that moderate force would be required, at a minimum, to pierce through Mr Baum’s shirt, underwear and skin to inflict the fatal injury.
Fifthly, the Crown relies on Mr Ackerley’s accounts of ‘stabbing’ as evidence of what they say are admissions of deliberately striking Mr Baum. The Crown contends that the ordinary use of the word ‘stab’ implies deliberateness, and that these statements amount to admissions that he attacked Mr Baum in order to avoid being further assaulted.
Mr Ackerley’s submissions
Counsel for Mr Ackerley submitted that the fatal injury occurred ‘as a result of the deceased entering the area behind the kitchen bench and contacting the knife which was firmly held by Mr Ackerley’.[32] It was put that the Court could be satisfied of this account on the balance of probabilities, and could not be satisfied beyond reasonable doubt that Mr Ackerley had deliberately struck Mr Baum.
[32]Outline of Plea Submissions filed by the accused on 13 April 2021.
Counsel acknowledged that Mr Ackerley had used the word ‘stab’, but disputed that the only reasonable interpretation of the word was a deliberate strike, as distinct from a passive blow as a result of a scuffle.
I was invited not to put too great a weight on the alleged admissions. Counsel submitted that I should have regard to Mr Ackerley’s mild intellectual disability and treat the statements as a mix of false accounts and accounts confusing the fatal altercation with the earlier incident when Mr Baum assaulted him.
What Mr Ackerley’s statements reveal, it was suggested, is that he had a real sense of danger, having already been attacked by Mr Baum. Counsel noted the relative sizes of the two men, with Mr Ackerley standing at 165 centimetres and Mr Baum at 181 centimetres. Counsel further noted Mr Humphrey’s evidence that Mr Baum remained ‘pissed off’ after the initial assault on Mr Ackerley, and on returning to the house walked directly into the kitchen towards Mr Ackerley, without saying anything.[33]
[33]T22-23.
Counsel submitted that Mr Humphrey’s account demonstrated that Mr Ackerley was holding the knife below the height of the kitchen bench at all times, suggesting he had armed himself as a defensive act. Counsel also submitted that the depth of the wound was not itself indicative of any particular motion by Mr Ackerley.
It was ultimately submitted that the Court cannot be satisfied that this was not a case of excessive self-defence and therefore not a deliberate attack.
Analysis
For the reasons that follow, I am not satisfied beyond reasonable doubt that Mr Ackerley deliberately struck Mr Baum with the knife.[34]
[34]See generally R v Storey [1998] 1 VR 359; R v Olbrich (1999) 199 CLR 270; Formosa vR (2012) 36 VR 679.
Mr Humphrey is the only witness to the offending. There was no challenge to Mr Humphrey’s account of the fatal altercation and I accept his evidence. Mr Humphrey was in close proximity to the altercation, albeit the kitchen bench obstructed his view of the knife and the actual strike. I accept Mr Humphrey’s evidence that neither Mr Baum nor Mr Ackerley lunged at each other and that they were facing each other when they got into a scuffle.
The knife is 47cm long and has no real handle. I was shown the knife during the contested plea hearing, in addition to having seen a photograph of the knife.[35]
[35]Crown Opening for Contested Plea filed 5 February 2021, 11.
The pathologist, Dr Gregory Young, gave evidence at the s 198B Criminal Procedure Act 2009 (Vic) hearing based on his autopsy findings, that there was no way to determine if the wound was sustained as a result of force being applied to the knife by Mr Ackerley or force being applied from Mr Baum’s movement, towards the knife.[36]
[36] T77.
Mr Humphrey’s evidence was that when Mr Baum entered the kitchen he got close-up to Mr Ackerley, and that the scuffle occurred over a very short period of time, no more than ten seconds, after which time Mr Baum turned and left wounded.
Mr Humphrey’s evidence was that the scuffle involved both men who ‘were trying to like, pushing each other’.[37] While Mr Humphrey observed the scuffle, he did not see the knife, and he did not observe Mr Ackerley lunging or making any action consistent with a deliberate stabbing with the knife. He simply saw the two men move towards each other and start pushing each other at the same time.
[37]T25.02-03.
Given the size and length of the knife, it is highly implausible that Mr Ackerley could conceal such a large blade in his clothes or otherwise on his person. I can infer that Mr Ackerley must have had the knife in his hand at all relevant times when Mr Baum walked around the kitchen bench and the two men were facing each other, and it was most likely held in a fairly rigid position.
It is more likely that Mr Baum, who at the time had a blood alcohol level of 0.17, inadvertently or accidentally came into contact with the knife which penetrated his groin area leading to the fatal injury. The latter is also consistent with a scuffle between two men of significant height difference. Mr Baum was 181 centimetres tall, compared to Mr Ackerley, who is 165 centimetres tall.
I do not accept that Mr Ackerley made admissions to deliberately ‘stabbing’ Mr Baum during the fatal altercation. There is nothing in the statements made by Mr Ackerley, relied upon by the Crown, that amounts to an admission. Mr Ackerley is a man with a mild intellectual disability and his statements do no more than convey that he actually struck Mr Baum with the knife, in that he had a knife that penetrated into Mr Baum’s body. Mr Ackerley’s statements after the event to police and the ‘000’ operator are factually incorrect. Mr Baum was clearly not on Mr Ackerley at the time Mr Baum was stabbed.
Mr Ackerley’s statements reflect that he was fearful of Mr Baum and armed himself with a knife in circumstances where he had been previously seriously assaulted by Mr Baum and wrongly accused of taking Mr Baum’s phone. The statements in their entirety, as I have said, reflect the comments of a man with a mild intellectual disability about his head having been ‘smashed into the concrete’ and it being ‘the only way I could get him off me or he would have kept bashing my face in the concrete’. These statements are more likely to be references to the earlier altercation and Mr Ackerley’s fear it would happen again. They are not inconsistent with him accidentally stabbing Mr Baum.
As I have said, the words Mr Ackerley used, such as ‘I stabbed him’ were employed with their ordinary meaning and do not import any deliberateness in Mr Ackerley’s action of stabbing.
The evidence points to Mr Ackerley being fiery but also being fearful of Mr Baum. This evidence does not of itself, or in combination with the totality of the evidence, allow me to infer that Mr Ackerley wanted to retaliate. While Mr Ackerley regrettably armed himself with a knife he did no pursue or make deliberate attempts to find Mr Baum and attack him.
I am satisfied on the balance of probabilities that Mr Ackerley committed an unlawful and dangerous act by being in possession of the knife and holding it in the direction of Mr Baum. I accept on the balance of probabilities that the fatal wound was caused as a result of Mr Baum entering the area behind the kitchen bench and contacting the knife which was firmly held by Mr Ackerley.
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