R v Edwards - [2018] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v EDWARDS
Criminal Trial by Judge Alone
[2018] SASC 170
Judgment of The Honourable Justice Vanstone
16 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with attempted murder and attempted aggravated causing serious harm with intent to cause harm in the alternative. Trial by Judge alone. Where the only issue was whether, when she stabbed the victim, the accused intended to murder her.
Held:
Accused not guilty as charged but guilty of the further alternative of aggravated recklessly causing serious harm.
Criminal Law Consolidation Act 1935 (SA) ss 11, 23(1), 23(3), 270A; Summary Offences Act 1953 (SA) s 74FD; Criminal Law (Forensic Procedures) Act 2007 (SA) s 30, referred to.
R v D,WD (2013) 116 SASR 99, applied.

R v EDWARDS
[2018] SASC 170
Criminal.

VANSTONE J.
The accused is charged with attempted murder and, in the alternative, aggravated causing serious harm with intent to cause serious harm.
She has elected for trial by Judge alone. This was not done by the time of her arraignment, but I was satisfied that there were special reasons why the time requirement was not met and I made an order extending the time within which that election could be made. Having satisfied myself that the accused had appropriate legal advice, I embarked on the hearing of her trial, sitting without a jury.
The charges appear on the information as follows:
First Count
Statement of Offence
Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cheryle Jenny Edwards on the 21^st day of October 2018 at Port Augusta, attempted to murder Tanya Yanima.
Second Count
Statement of Offence
Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cheryle Jenny Edwards on the 21^st day of October 2017 at Port Augusta, caused serious harm to Tanya Yanima, intending to cause her serious harm.
It is further alleged that Cheryle Jenny Edwards used an offensive weapon, namely a knife, to commit the offence.
The accused does not deny voluntarily and deliberately stabbing Ms Yanima (V) about six times. Indeed, I am told she formally offered to plead guilty to an offence against s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act) but that was not accepted. I note that the difference in maximum penalties as between count 2 and the offence to which she offered to plead is 25 years imprisonment as against 19 years imprisonment. The only issue in dispute in the trial is what was the accused’s intention at the time of the infliction of the injuries.
The prosecution case
The evidence presented is of narrow compass. The victim was not called, as police were unable to locate her. One eyewitness was called. Photographs of the scene and of V’s sutured injuries were tendered, together with footage of the accused’s arrest and some parts of an extraordinarily lengthy detention and interview to which she was subjected by police. That period ran to almost eight hours. Had the defence sought exclusion of the admissions made it would very likely have secured it. However, both counsel highlighted different aspects of the accused’s appearance and behaviour in the footage and relied upon it.
Also presented were a number of admissions or agreed facts. These collected some of the observations of eyewitnesses both before and after V sustained the injuries. The admissions also dealt with those injuries. There were six stab wounds to V’s rear chest. Four of them were superficial lacerations. Two of them were deeper wounds, one of which punctured V’s right lung.
The accused and V were known to each other. There may have been some animosity between them. The incident giving rise to the charges took place at 2 Perry Court, Port Augusta on 21 October 2017. On that day various persons were present at the home of a Ms Warren. They included the accused, V, other adults and two teenagers. All the adults had been drinking liquor. The accused and V were seen to argue during the afternoon. Later on, nearer to 5 o’clock, the teenagers saw V outside the house asking to come in, but being denied access by Ms Warren. At this point the accused was sitting at the kitchen table. V then walked around to the back of the dwelling and entered the kitchen through the back door. An argument followed. Agreed fact number 12 records: ‘The accused then got up from the kitchen chair in which she had been sitting, and started pushing [V] roughly, palming her in the face and chest, trying to push her out through the back door’. V then turned and walked out. As she walked out the accused said, ‘I’m going to kill that black bitch’. It was admitted that the accused then walked over to a kitchen drawer and took hold of a knife. She went out the front door, holding the knife in her right hand behind her back, with the end of the blade pointing toward the ground.
When the accused was within about three metres of V, one of the teenagers yelled out, ‘Run Tanya, she’s got a knife’. Agreed fact number 16 records that the accused caught up to V, raised the knife to about head level and then plunged it down towards V. The accused was seen to stab V in the back. She was holding the knife with the blade closest to the little finger of her hand. The stabbing motions were said to be not fast, but slow.
The only eyewitness to give evidence was Ms Lindsay. Having described the stabbing – which she saw from close quarters – she was questioned as follows:
Q.    Ms Edwards stopped stabbing at one point.
A.    Yeah.
Q.    What caused her to stop stabbing, if you know.
A.I think it was the screams from the boys that made her stop and she realised that she did something wrong, and, yeah.
Q.    Are they the screams you told us about earlier or different screams from the boys.
A.    Different screams.
Q.    What were they screaming at that point, if you can recall.
A.    They were hysterical.
Q.    You say you got the sense she realised what she'd done.
A.    Yeah.
Q.    What did you actually observe that gave you that impression.
Police arrived at 5.05pm. Paramedics attended at 5.09pm and conveyed V to the Port Augusta Hospital.
The accused was arrested at the scene and placed in the back of a paddy wagon. From there commenced what I consider to be a long and sorry train of events which brings no credit whatsoever upon the police officers involved.
A video camera was activated at 5.07pm. At that time the accused was under arrest. Almost immediately she told Constable Fazzalari that she was bleeding and that she had stabbed herself. (She did indeed have a stab wound to her left hand). Her arrest rights were given to her. Others around her were intervening and she was belligerent. She told the police officer that V had walked in the back yard, in the back gate and was causing trouble and that was why she had stabbed her. Officers Barletta and Pritchard also saw the injury to the accused’s hand, which she explained she had done herself. The accused was obviously affected by liquor and had to be helped up from a sitting position by police officers. Apart from the hand injury, she complained of a lump on her head which she said hurt. She said she would kill herself, or hang herself. Again given her arrest rights, she said she did not want to have anyone with her and did not need an interpreter. The accused repeated that she had stabbed the victim. Senior Constable Barletta said he was going to attempt to get the paramedics to look at the accused’s hand, but that does not appear to have happened. Police spoke to witnesses who identified the accused as having stabbed V.
The accused was taken to the Port Augusta cell complex, arriving at about 5.30pm. Instead of being taken inside she was kept in the back of the paddy wagon with her hands handcuffed behind her back. She was obviously very uncomfortable. She was told that the purpose of being there was to await the arrival of detectives. I was told in evidence by Detective Sergeant Wayne Roberts, who seemed to be in charge and for whom the uniform officers were waiting, that at this point no decision had been made as to whether she would be taken inside or taken back to the scene for a re-enactment. The accused continued to complain both about the handcuffs and about her injured hand. When she was taken into the cell complex she was placed in an interview room. This was at 5.38pm. Her hands were then placed in paper bags, which she was told had to remain on the table. She was allowed to speak to her stepfather, although she did so by means of speaking into a mobile telephone held by one of the officers while her hands remained on the table.
At 6.03pm Detective Roberts entered the interview room.
At about 6.13pm the accused told the officers she needed to go to the toilet. She was told there was no female officer available and that she would have to wait. About an hour later a female police officer arrived and she was able to go to the toilet. Her hands remained in the paper bags. I was told that the purpose of that was to enable a forensic procedure to be conducted. However before that could happen an application to a commissioned officer had to be made. Meanwhile at about 6.15pm the accused asked for a legal advisor to be brought to her. Police called the Legal Services Commission, but there was no answer. At about 6.30pm a call was placed to the Aboriginal Legal Rights Movement. At about 9.35pm Ms Makris of the ALRM arrived. Then the accused asked for a friend to be present. Eventually, at about 11.00pm the application for permission to perform a forensic procedure was made and granted.
The forensic procedure commenced at 11.18pm. Swabs of the accused’s hands were taken by Brevet Sergeant Ackland as well as some photographs. The accused told Sergeant Ackland (in the presence of Detective Roberts) that her hand was very sore as she had stabbed herself. When Sergeant Ackland had finished with her she was told that she would be conveyed to the hospital for a blood sample to be taken. She asked whether she could see a doctor about her hand and Detective Roberts permitted that. At 11.52pm the accused was taken to the Port Augusta Hospital.
She was returned to the police station a few minutes before 1.00am. Then she was given a warning pursuant to s 30 of the Criminal Law (Forensic Procedures) Act 2007 (SA) and a buccal swab was taken from her by Detective Roberts. It is not clear to me why, if a buccal swab was necessary at all, it could not have been taken either earlier by Sergeant Ackland, or at the hospital when the accused’s blood was taken. She was then advised by Detective Roberts about her ability to hear or purchase a copy of the video-tape of the conversation. That advice is required to be given in writing: s 74D(4) of the Summary Offences Act 1953 (SA), and there was no need to further delay the processing of the accused by so lecturing her. Then Detective Roberts warned the accused of the restrictions imposed on use of the tape by s 74F of the Summary Offences Act. Ms Makris was with her at this time. There was no need to go into the matter. The accused was in no fit state to take in any of this. Then she was alco-tested at the charge counter and charged at 1.13am. There followed a multitude of questions about her medical conditions, medications, recent injuries and mental state. The accused was finally placed in a cell some 8 hours and 15 minutes after being arrested.
I mentioned that the accused was plainly intoxicated and that, earlier on, she was belligerent. The agreed facts record that a blood sample was collected from her at 12.10am at the hospital. Analysis showed alcohol at the concentration of 0.179 per cent, as well as metabolites of cannabis. The agreed facts record that based on a countback to the time of the offence, the accused’s blood alcohol concentration would have been about 0.321 per cent. Therefore, not only was the accused grossly affected by liquor at the time of her arrest, but she was also injured. Police were told of her injury at the scene. In that condition she was detained in a manner that must have caused her very great discomfort for what I see as an unnecessarily long period before being charged and placed in the cells.
The reason why police were able to do this without reference to a magistrate was because three of so hours of that period was spent waiting for the Aboriginal Legal Rights representative to arrive, just short of one hour was spent waiting for the requested friend to arrive and a further one hour was spent taking the accused to hospital. While that latter was plainly done for the purpose of taking the accused’s blood, the fact that she received treatment for her hand qualifies that period as one not to be taken into account in determining the period elapsed since apprehension and before delivery into the custody of the police officer in charge of the nearest custodial police station: s 78(1), (2) and (2a) of the Summary Offences Act.
During this long period of detention the accused said certain things about the stabbing incident. She was perfectly frank in saying that she stabbed the victim. She also said she had wanted to kill her. Having been told by police that there was seven stab wounds (which was wrong) she admitted having stabbed her seven times. She said that the victim had started it. At other times she said she jabbed her repeatedly. At various times she indicated that she expected she would be bailed. There was hardly any likelihood of that.
Having regard to the fact that the accused was injured, grossly intoxicated and plainly in pain and tired, and that she was subjected to an extensive period of questioning, I am not inclined to have regard to the specific admissions she made upon which reliance was placed. Had the accused sought discretionary exclusion of the interview that would have been done.
In my view there was absolutely no justification for keeping her out of the cells ostensibly ‘to complete the immediate investigation of the suspected offence’: s 78(2)(a)(i). The police had her own admission of stabbing the victim anyway and they had statements from others who had seen it. The accused was obviously intoxicated, justly annoyed at her treatment and speaking in an unguarded manner. The period spent waiting, needlessly, for the Aboriginal Legal Rights representative, merely gave police more opportunity to take down further admissions. The police were aware at the time of their attendance at the scene that the accused was injured and nothing was done about that until a few minutes before midnight. Even then, it is clear that the reason for taking the accused to hospital was to take a sample of her blood.
As I said during the trial, I consider that the accused’s treatment at the hands of police was high-handed and inconsiderate to the point of being cruel. Just because police have legislative authority to detain suspects while investigations are conducted does not mean that it is always appropriate to do so. In any event, the legislative authority only enables detention for ‘the period necessary to complete the immediate investigation’: s 78(2)(a). It does not justify keeping an injured or intoxicated suspect in uncomfortable conditions while police ponder whether to undertake pointless lines of enquiry.
Prosecution arguments
Mr Foundas, for the prosecution, highlighted a number of matters which he said indicated that at the time she stabbed the victim the accused was intending to kill her. First he pointed to the number of wounds, being six in all, and the fact that they were inflicted from behind. Therefore, it was put, they would have taken the victim by surprise. Then he pointed to the statement made by the accused, recorded in agreed fact number 13, to the effect, ‘I’m going to kill that black bitch’. He noted that the stab wounds were said to be delivered slowly rather than quickly. This was not a frenzied and manic attack.
Mr Foundas submitted that the threat to kill the victim, the taking up of the knife and the use of that knife all occurred within a very short space of time. The inference should be drawn that the accused did indeed intend to kill the victim. Mr Foundas suggested that not much weight could be put on Ms Lindsay’s evidence to the effect that the screams of the boys seemed to have deflected the accused as it was only her appreciation of the accused’s reaction.
In relation to the high level of liquor, coupled with THC, which the accused must have had at the time, Mr Foundas submitted that the accused had a marked tolerance to alcohol and was plainly still able to function at high levels. Aggression was a wellknown side effect of intoxication. There was no evidence that, afterwards, the accused could not comprehend what had happened or interact with other persons around her. Indeed, she said repeatedly that she had stabbed the victim because the victim had caused trouble.
Mr Foundas submitted that the clear inference that the accused intended to kill the victim arose both from her words and her actions and that the level of intoxication was not such as to undermine that inference.
Defence case
The accused did not give or call evidence.
Consideration
This was certainly a violent episode which was entirely uncalled for. I agree with the submission of Mr Foundas that the accused’s intoxication probably caused her to be less inhibited than usual and exacerbated her feelings of aggression towards the victim.
While it is true that she threatened to kill the victim and took up a knife, in my mind there is doubt that she truly intended to kill the victim at the time she inflicted the stab wounds. I was impressed by the evidence of Ms Lindsay to the effect that the screaming of the boys seemed to cause the accused to stop and take stock of what she was doing. At that point she desisted. Then, on examination, two, only, of the wounds were penetrating. That is not to diminish their seriousness, but rather to suggest that the attack might not have been as determined and targeted as alleged.
If the countback based on the blood sample later taken is anywhere near accurate, then the accused was indeed grossly intoxicated, not only at the time of the stabbing, but for many hours thereafter. It is not really to the point that she had a high tolerance for alcohol and could function. The two charges on the information require proof of a specific intent, in relation to count 1, to kill, and in relation to count 2, to inflict ‘serious harm’, as defined in the Act.
While I am satisfied that the accused acted voluntarily and deliberately in striking out at the victim, I think it a reasonable possibility that she was no more than reckless in the infliction of what was plainly serious harm.
R v D, WD (2013) 116 SASR 99 is authority for the proposition that sections like s 25 of the Act, dealing with alternative verdicts, which are expressed in terms of giving the jury the right to bring in an alternative verdict which has been left to them, applies also to a Judge hearing a trial without a jury. Accordingly, I consider that I am entitled to bring in a verdict of guilty of recklessly causing serious harm to the victim, with a circumstance of aggravation. That is the offence provided by s 23(3) to which the accused offered to plead guilty prior to trial.
Conclusion
By reason of the intoxication of the accused, together with evidence that during the attack she appeared to stop and take stock of what she was doing – and to desist – I am unable to be satisfied that she intended either to kill the victim or to cause her serious harm.

Accordingly the accused will be acquitted of the two charges she faces. However, I am satisfied beyond reasonable doubt of her guilt of an offence against s 23(3) of the Act – recklessly causing serious harm with a circumstance of aggravation – and I find her guilty of that offence.