R v Elliott - [2008] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ELLIOTT
Criminal Trial by Judge Alone
[2008] SADC 113
Reasons for the Verdict of His Honour Judge Lovell
4 September 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM
Trial by judge alone - accused charged with 1) Creating Risk of Bodily Harm; 2) Threatening a person with a firearm; 3) Possessing a firearm without a licence.
Count 1 Not Guility; Count 2 Guilty; Count 3 Guilty

R v ELLIOTT
[2008] SADC 113
Overview

Kathryn Chapman alleges that on 2 January 2006 as she was driving her car along Marion Rd at Marion with the accused as her passenger. She alleges that at that time was shot in the leg by the accused. The accused denies being in her car at the time Ms Chapman was shot.
General issues and directions
An accused person is presumed to be innocent of the charges unless and until guilt on each charge has been proved beyond reasonable doubt.
The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
Ms Chapman who gave evidence about the critical events had at the time a long-standing heroin addiction. She had suffered mental health problems over many years. I will deal with this in more detail when I come to review her evidence. Mr Elliot was at the time of the alleged offence affected by alcohol. I remind myself that the intoxication of a witness may affect the proper assessment of his or her reliability as a witness. It is common experience that intoxication can have an adverse bearing on a person’s perception of relevant events. It is also common experience that intoxication can affect a person’s subsequent recall of relevant events. Because intoxication can affect or alter a person’s state of mind, the intoxication of any of the witnesses is relevant to my consideration of their evidence and to my assessment of their credibility and reliability.
As mentioned identity is the major issue. I take account of the fact that there can often be problems with evidence of identification and care should be taken in assessing the reliability of identification. I recognise that honest witnesses can be mistaken in making an identification and that a mistaken witness can be certain and believe in the identification that they have given.
The accused in this case gave evidence on oath. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all the ingredients of the charge. I note that I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt.
I note that the effect of this is that, in assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness.
Evidence led showed that accused told Detective Modra during the course of his arrest that he was not willing to answer any questions.
I understand that I am not to draw any adverse inferences against Mr Elliot by virtue of the fact that he declined to answer questions of the police.
Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies in respect of the charges, then it necessarily means that the prosecution has failed.
Background
The events leading to the alleged shooting were covered in considerable detail. In the end there was some common ground. Whilst the background is important I do not consider it necessary to resolve all of the disputes raised by the evidence.
Ms Chapman is currently 42 years of age. She did not meet the accused until around the beginning of November 2005. She met him through a lady by the name of Lisa Matthews. Ms Matthews was previously a neighbour of Ms Chapman. In approximately November 2005 Ms Matthews came to live with Ms Chapman. Ms Matthews initially looked after Ms Chapman’s house while Ms Chapman was in hospital. Ms Chapman was at the Adelaide Clinic for a couple of weeks after an emotional breakdown when she separated from her partner. When she returned from hospital Ms Matthews stayed for a short time and then moved her possession overs to Ms Chapman’s house. She was meant to pay $80 a week rent and board but failed to do so.
Ms Chapman has been a heroin user since the early 1990s. She has been on methadone since 1994. She described herself as using only on pension days which was fortnightly unless she was able to organise money from somewhere else. Ms Chapman conceded that she had, for some years, earned money from prostitution.
Ms Matthews became involved in arranging for the accused to lend Ms Chapman some money. Apparently there had been some suggestion that the neighbour was going to lend her some money but eventually that did not come to pass. Ms Chapman ended up borrowing money from the accused. This was apparently arranged by Ms Matthews.
On 30 December 2005 Ms Chapman attended at the Mansfield Park Hotel with Ms Matthews expecting to find the accused there. They drove to the Mansfield Park Hotel in Ms Chapman’s car which was a red Ford Laser. She and Ms Matthews went into the hotel and met the accused there. Eventually all three went to the car park.
It is common ground that the accused handed $300 to Ms Matthews who passed the majority of it to Ms Chapman. The details of the transaction were in dispute. Ms Chapman said that she handed over the keys to her car, a red Ford Laser as security for the debt. The accused said that he purchased the car for $300. His evidence on this topic was difficult to understand as he said that if Ms Chapman wanted to buy it back she could after 3 weeks. In cross-examination he agreed that if Ms Chapman gave him the money back he would give her the car back after 3 weeks. If she didn’t give him the money after 3 weeks the car was his.
The precise details do not matter. It could be that both the accused and Ms Chapman had a different idea of nature of the transaction. What is agreed by both the accused and Ms Chapman is that she had his $300 and he had possession of her car. If she gave him the money back, at least within the 3 week period, she would get the car back.
Ms Chapman and the accused said that Lisa handled the money. At least part of the money was used to purchase heroin from a dealer in the car park at the hotel. Ms Chapman was unable to say if the accused was present in the car park at that time. The accused thought he was but played no further role in the events after handing Ms Matthews the money.
Ms Chapman left in a taxi from the car park; she was unable to say whether she had injected the heroin before she got into the taxi or when she got home. She also took a Benzodiazepine and some Panadeine Forte.
Within a few days Ms Chapman had spoken to her father (now deceased) and he had offered her the money to get her car back. There is no doubt that she pressured Ms Matthews to have the accused give the car back in return for the payment of the $300. Once again there was some conflict in the evidence about how much “pressure” was applied and to whom. Ms Chapman asserted she only spoke to Ms Matthews. The accused stated in evidence that she spoke to him on the telephone; the telephone records do not support that assertion. Again it is not a matter that I need to resolve. It was common ground that as a result of the “pressure” the accused came to her house the following day with the car expecting to be paid his $300.
What occurred at the house on the day before the alleged offence was again the subject of much evidence that, in part at least, was in conflict. Ms Chapman stated that she did not have a good memory of the events at her house. It was common ground that the accused, Ms Matthews and two other people Ms Heath and her partner Wayne Dynon attended the premises. The accused had an expectation that he was going to get his $300 back. Ms Chapman claimed that she was owed at least that by Ms Matthews for rent. She did not have the $300 to give to the accused and suggested that Ms Matthews should give him the money. An argument erupted between Ms Matthews and Ms Chapman. It was common ground that the accused and the other two persons had no direct involvement in the fight. During the course of the fight between Ms Chapman and Ms Matthews, the accused had mace sprayed in his face and Ms Heath was struck on the head with a bottle by Ms Chapman. Ms Heath went to hospital where she had seven stiches in a head wound. The accused also left the premises with Mr Dynon. After waiting for Ms Heath at the hospital the three of them returned to Ms Heath’s house where they stayed until the following morning.
Ms Chapman, whose memory of the events of that day was admittedly poor, did not deny the assault on Ms Heath and the accused. She was sure she must have felt threatened to behave like that. In any event, after the events at the house Ms Chapman had the car and had not paid the accused his $300.
Later that day Ms Chapman contacted the accused and told him that she still intended to pay him the money even though she now had her car back and she made the offer of driving him if he needed to go anywhere until she could hand the money over. The accused agreed that in general terms such an arrangement was made although the did not concede the précised timing of the arrangement.
Telephone records
Mobile telephone records of Ms Chapman were tendered[1]. No mobile phone records in the name of the accused were tendered. From her telephone records Ms Chapman was able to identify calls made by the accused on the morning of 2 January 2006 to her mobile phone. The records for that number were tendered.[2] The accused did not specifically concede that Exhibit P16 contained information relating to the mobile phone he used on that day. However he did not seriously dispute that such an inference could be drawn. From the evidence of both Ms Chapman and the accused as to their telephone contact on both 1 and 2 January 2006 it is clear that the accused possessed the telephone, and indeed used the mobile telephone with the number telephone number 0424 939 300[3]. Indeed the accused stated that he had possessed a number of phones over the years which he had purchased in “the pub”. I find beyond reasonable doubt that Exhibit P16 contained the records of the mobile phone used by the accused on the 2 January 2006.
[1] Ex P 15
[2] Exhibit P 16
[3] Exhibit P 16
The telephone records are of assistance in establishing the timing of various events.
Explanation of the telephone records
Evidence was called by the prosecution from Ms Matos who is employed as an agency liaison analyst with Vodafone. She was able to produce records relating to Ms Chapman’s mobile phone (number 0424 563 642).[4] She also produced records relating to the telephone number 0424 939 300.[5] The subscriber for that phone was S James of 56 Middle Road, Salisbury, South Australia 5108. I have already found that the accused possessed at the relevant time the telephone with that number.
[4] Exhibit P15
[5] Exhibit P16
The documents related to calls made from 2 October 2005 up to and including 4 January 2006 for both telephones. I accept Ms Matos’s evidence and the accuracy of the information contained within those documents subject to the comments below in relation to the heading “location description” of the dominant mobile phone base.
Sanjiv Ramachandran was also called by the prosecution and gave evidence relating to the telephone records Exhibits P15 and P16. He is employed by Kordia Pty Ltd. This company does the engineering “outsource work” for Vodafone. Mr Ramachandran provided information in relation to the location and coverage of the Vodafone base stations in South Australia. A bundle of eight diagrams showing the dominant service areas of Vodafone base stations at various localities were tendered.[6] The documents tendered established, by the location of the various coloured areas on the plans, the dominant mobile station that would service the making of a phone call on a mobile phone in that area. In other words if a user was to operate his mobile phone within the Port Adelaide base station area the Port Adelaide base station would be the dominant station and the call would be registered there.
[6] Exhibit P21
Within some areas the diagrams demonstrate that there is an overlap of the range of the various stations. Indeed within particular streets the dominant station may differ. This is in part explained by the possibility of the radio signal being blocked for example by a building. Mr Ramachandran told me that the data that was used to come up with the plans was predictive and that there could be variation within a dominant tower area. He said that within the area the standard deviation was about 8%. Even if a call was made within a particular area as shown on the plan there was some chance it would be picked up by another tower which was actually the dominant tower for that area. He also said that if a person was driving through an area when the person made a call and then whilst remaining on the telephone moved into another area the call would move to a different site but would always be registered as occurring at the first site.
Overall I am satisfied that the records Exhibit P15 and P16 establish beyond reasonable doubt the date on which a call is made, the local call start time of the call, the phone number of the recipient and the length of time the call lasts.
Whilst the location description of the particular dominant base on which the call is registered is reasonably accurate it could not be relied on totally as the data is predictive only and there is an 8% variation rate. In other words the origin of the call can be located reasonably accurately but not with certainty. Thus it is possible that a phone call could be made within one area as it appears on the plan, but as the plan is not entirely accurate, the call may be picked up by another tower which is actually the dominant tower. However, if it is picked up by one and diverted to another it will still be registered at the original site.
Further it appears that if a person was calling whilst travelling in a motor vehicle, for example travelling from South to North, one could intermittently come within the range of a particular station.
Events of 2 January 2006-the case for the prosecution
Ms Chapman and the accused both gave evidence of the events of this day. The accused also called Ms Heath to support, in part, his version of events. The DPP relied to an extent on the telephone records that were tendered[7]to support Ms Chapman.
[7] Exhibit?
Ms Chapman’s version
The accused did not take up Ms Chapman’s offer to be driven around until the following day namely 2 January 2006. Initially he contacted Ms Chapman and asked her to pick him up from a hotel at Norwood but when she was on the way he contacted her again and made it Largs North. She was directed to go to near the intersection of Centre Street and Victoria Road; she attended there. She stated that she may have rung the accused when she arrived there to let him know that she had arrived. The accused had been staying with Ms Heath and Wayne. I will discuss the evidence of Ms Heath later.
The accused came over to the car carrying black shopping bags. They were fabric rather than plastic. She thought he had two.
He directed her to drive south towards Noarlunga without specifying a particular destination. She drove over the Birkenhead Bridge down Port Road and then onto South Road about as far as the Old Reynella turnoff.
As they were proceeding along South Road somewhere near the Mitsubishi factory the accused retrieved one of the bags and pulled out a hard plastic case and from that he took out a gun. Under cross-examination she conceded she was unclear whether he had retrieved the bag from the rear seat or from the foot well of the front passenger area. Initially she thought he was just “big noting himself” and therefore she did not pay much attention to it. Eventually he removed the bullets from the gun and handed the gun for her to examine. She thought there was about five or six bullets. Ms Chapman stated that at one stage took hold of the gun for about five or 10 seconds and then handed it straight back. At that stage he put the bullets back in the gun.
Around this time the accused demanded that she “give him a head job”. She initially refused but then relented and said she would do it but not in the car and not without him wearing a condom. He said he did not wear condoms. Also she said that if she did give him the “head job” she wanted some money off the debt. Ms Chapman under cross-examination agreed that this was a different to what she had initially said to the police. In my opinion little turns on the change of story.
The accused pushed the gun into her crutch and said something about “not shooting me on the main road” so at that stage she said “Well, best I turn off then”. There was no charge laid in relation to this part of the events. It was led as part of background. Ms Chapman was unable to remember the location of the side street other than it was somewhere between the Old Reynella turnoff and the Mitsubishi factory. She turned into the side street to call his bluff. At that stage the accused kept the gun on her and they continued to talk. At some stage the conversation turned towards getting the money to pay him back from her father. She said she felt frightened but did not actually think he would shoot her.
They started heading back to the city. Her mobile phone had been in the console of the car and he eventually let her call her father. At some stage she said something like “Dad, I’m in serious trouble. He has got a gun or a 357” and that is when the accused shot her. She heard it the noise and felt something in the upper thigh.
At the time she was shot she was speaking to her father on the phone. The accused offered to do first aid but she refused. At the time they were driving on Marion Road heading towards the city. Ms Chapman told me that she believed she was shot whilst the vehicle was travelling north along Marion Rd. They were approaching the railway overpass near Oaklands Road.
The accused said “you’re going to dob me in, you’re going to dob me in” to which she replied “I am going to get help.” She told him to get out of her car and he didn’t object. She told me she let him out Bray Street near a service station with “about 20 bowsers”. I find that was Skorpo’s service station. He got out of the car with the bags and gun. The accused was only in the car for about a minute or so after the shooting.[8]
[8] T131
I note from the evidence of Brevet Sgt Modra that from the overpass on Marion Road to Skorpo’s service station on Marion Road is approximately 820 metres. The overpass to Bray Street is approximately 1640 metres

Ms Chapman drove along Marion Road looking for a telephone booth. She stopped the car near the Vermont Shopping Centre, crossed the road and rang her father.[9] He called an ambulance.
[9] T126
Ms Chapman told me that the accused had pressed the gun into her crutch. It remained there she thought until the shot was fired. However the wound was not to her crutch but her upper thigh.[10]
[10] T99
In cross-examination Ms Chapman conceded that her memory was poor in relation to the events of the days prior to the shooting and the events subsequent to the shooting. Indeed she told me that after she made the call in the telephone box she has no memory of events until she awoke in hospital strapped to a bed.
Ms Chapman conceded that she had previously been a heroin addict and prostitute. She agreed that she had previously been an inpatient at the Adelaide Clinic. She had previously received psychiatric treatment.
She was cross-examined about inconsistencies between her evidence in chief and her prior statements to the police. She readily agreed that what she said in her statements was more likely to be correct due to the statement being closer to the events. In my view her credibility was not damaged by the inconsistencies.
Ms Chapman agreed that she did not know where the accused went after he left the car. She denied very clearly the suggestion that someone other than the accused shot her in the leg.
When cross-examined about her statement to Mr Quast the journalist about the gunman having a “tear drop tattoo” on his hand she accepted that she may have said that (although she didn’t remember it) but explained that “she wasn’t thinking particularly clearly in days straight after the shooting”.[11]
[11] T142
It was suggested to her in cross-examination that her evidence, that the accused had thrown her mobile phone to the floor during the car trip, was wrong.[12] She maintained that the event had occurred. Later evidence from the accused confirmed that such an event occurred albeit for different reasons.
[12] T142 and 151
The telephone records are consistent with Ms Chapman’s version of events. The call to the ambulance service, it was agreed was made at 1428 hours by Ms Chapman’s father.
I find her telephone call to her father, during which she was show commenced at 14.25.49 hours. That of course does not prove that it was the accused who shot her. However the fact that the accused is recorded as making a call at 14.22.56 hours is not inconsistent with him making a call as he is dropped off or is about to be dropped off by Ms Chapman. I have borne in mind the criticisms made by Mr Lang relating to the telephone records. Of course they depend on where the car was at the time of the shooting. Ms Chapman said it occurred near the Marion Road overpass. She could not be precise. There would be variations as she drove along Marion Road as to which station was the dominant station. As I have already mentioned the tower that picked up each call was clearly the “dominant” tower but the coloured diagrams showing the “coverage” of the tower are not entirely accurate.
Generally the records are not inconsistent with the evidence of Ms Chapman.
How close was the muzzle of the gun from Ms Chapman at the time it discharged?
Two witnesses gave evidence for the Crown on this topic-Dr Bautz and Brevet Sgt Lawrence.
Dr Bautz is the senior surgical trauma surgeon at the Royal Adelaide Hospital. He originally trained in South Africa where he had extensive experience in treating gun shot wounds. There was no challenge to his expertise.
He examined Ms Chapman on the day of the shooting in the Royal Adelaide Hospital. The examination was initially very difficult due to irrational and bizarre behaviour. She had a potentially life threatening wound of her right thigh. He stated that at one stage she became abusive and tried to assault some of the staff at the Royal Adelaide Hospital; she was eventually restrained and sedated. In fact it appears that Ms Chapman was detained under the Mental Health Act at one stage.
Dr Bautz examined Ms Chapman and observed an entrance wound of the proximal inner thigh on the right hand side and an exist wound at the back. He noted a very small skin tear on the left hand side as well. Various x-rays and CT scans were taken, some of which were tendered in court.[13]
[13] Exhibit P1
Dr Bautz was able to assess the wound on the inner right thigh as the entrance wound due to the fact that it had typical entry wound aberration at the edges whereas the wound at the back of the thigh had nothing like that. The entrance wound was 4-5 centimetres in width and the exit wound 1-1.5 centimetres. The smaller wound was a 2-3 millimetre skin tear which he found difficult to explain.
From his experience he thought the weapon was most likely a high velocity weapon or a powerful handgun with a fragmenting bullet. He estimated it was a 357 or 389 millimetre calibre weapon.
The size of the entrance wound was larger than he would normally have expected. The size of the wound was compatible either with a lot of gas having gone into the wound or that the bullet was tumbling on entry and had gone in sideways. Such an entry by the bullet was inconsistent with a direct contact entry. In his opinion an article of clothing would not cause the tumbling that would be necessary for such an entry.
The unusual amount of gas in the wound indicated either a discharge of the firearm close to the entry point or the behaviour of the tissues after entry of the bullet. The size of the wound did not assist him as to how close the muzzle of the gun was to the wound at the time of discharge.
There was no burning or sooting on the skin that indicated a “contact shot”. He defined a contact shot as one where the muzzle of the gun is in direct contact either with the clothing or the skin.
I accept the evidence of Dr Bautz. He was an excellent witness and indeed he was not challenged by the accused.
In my opinion, his evidence when looked at as a whole is inconsistent with the gun being in contact with Ms Chapman’s body or jeans at the time of it discharging. In other words it is inconsistent with a contact shot. However Dr Bautz’s evidence is equivocal about how far from Ms Chapman’s wound the muzzle of the gun was at the time of discharge. It could have been quite close or further away.
Brevet Sergeant Lawrence from the ballistics section of the Forensic Services branch gave evidence of the examination he performed in relation to the motor vehicle driven by Ms Chapman. A bundle of photographs[14] were taken during the course of his examination. They showed an obvious area of blood staining in the front driver’s seat and an entry and exit hole in the driver’s seat. A bullet was recovered from the door of the vehicle. Photograph 21 of Exhibit P11 depicts a metal probe placed through the entry hole in the seat passing through the seat and through the exit hole. It was a reasonable demonstration of the angle at which the bullet had passed through the seat. There was a slight backwards angle of about five to 10 degrees as it passed through the seat and it passed through at an angle of approximately 35 degrees from the horizontal. Mr Lawrence accepted that the angle was such that a shot could have been fired through the passenger side window. He agreed that there was nothing to suggest that the shot was necessarily fired from within the vehicle.
[14] Exhibit P11
From his experience and having examined the bullet Mr Lawrence was of the view that the bullet was fired from a 38-calibre revolver. He described a revolver as being a handgun with a revolving cylinder that contains most often six but possibly four or eight cartridges. When the trigger is pulled the cylinder rotates bringing the next live round into line with the barrel ready for the next shot. He gave evidence that there are two distinct types of revolvers namely a single action or a double action revolver. In a single action revolver in order for the gun to be fired the hammer needed to be pulled manually to the rear. Such movement would cause the cylinder to rotate. To discharge a second shot the hammer would need to be manually pulled to the rear again. A double action revolver has a different action in that the pulling of the trigger causes the cylinder to rotate and the hammer to move to the rear. In order to discharge multiple shots from a double action revolver it is simply a matter of pulling the trigger; this rotates the cylinder, cocks the hammer and fires the gun. From examination of the bullet he was not able to say whether the bullet had been fired from a single action or a double action revolver.
For the gun to fire in all of the circumstances postulated by Mr Lawrence there would need to be some manipulation of the hammer, the trigger or both.
Mr Lawrence was questioned about his opinion in relation to the proximity of the barrel of the gun to the leg of Ms Chapman. He agreed that it would have been appropriate for the clothing to have been examined. He accepted that whether the clothing would be examined was a matter for the Forensic Science Centre rather than a member of the Ballistics Section. Mr Lawrence told me that a shot fired within one metre of Ms Chapman would, most likely, have left gunshot residues on the clothing.
Mr Lawrence said that a contact shot to the skin would leave debris in the wound but that it would be difficult to pick as a contact shot from the appearance of the outer skin. If the shot was fired a few centimetres from the jeans he would expect there to have been strong grey deposits on the clothing and a strong possibility of tattooing seen around the entry hole of the wound. He said that after 100 to 200 millimetres if the gun was being drawn back the grey deposits would essentially disappear and would not be seen and that the classic tattoo markings would increase in diameter but decrease in density to a point where perhaps about a metre from the skin they would disappear altogether. However he agreed that the intervening surface of the pair of the jeans would make it much more difficult to assess just from looking at the skin because the jeans would capture a lot of the gunpowder particles. He agreed with the proposition that if the gun had been drawn back up to say 200 millimetres there may not be any observable damage on the skin from the material discharged from the muzzle other than of course the bullet. He thought however that material would have been deposited on the jeans.
I accept the evidence of Brevet Sgt Lawrence. He was an excellent expert witness. His opinions were not challenged.
Like Dr Bautz his evidence relating to the question of how far the muzzle of the gun was from the leg of Ms Chapman at the time of it’s discharge was somewhat equivocal. I infer from his evidence that the shot was unlikely to be a contact shot. However other than that proposition his evidence was equivocal. The shot may have been reasonably close or even from outside the vehicle. Whilst he gave evidence that he may have expected to see some tattooing of the skin if the muzzle was close at discharge, he was unable to be precise about that. Certainly once the muzzle was back 100mm to 200mm the jeans worn by the victim may have interfered with the deposit of material on the skin.
As pointed out by Mr Lang examination and testing of the clothing of Ms Chapman may have assisted answering the question. For reasons mentioned later this examination and testing was not performed.
Discussion
Ms Chapman’s evidence was that the accused held the gun pointing into “her crutch”.[15] She believed that moments prior to the shot being fired the gun was pressed “in the sort of v between my leg and my crutch”.[16] However Ms Chapman noted “At the time I thought it was pressed into my crutch. However the wound is in my extreme upper thigh”.[17]
[15] T77,78
[16] T99
[17] T99
Her evidence in that regard is consistent with the gun having been moved just prior to discharge. I accept her evidence of where the gun was initially pointed. Thus the shot could not have been a contact shot. The trajectory of the bullet after discharge is consistent with the gun being pointed away from Ms Chapman’s “crutch” at the time of discharge. I find that the gun was moved prior to discharge and that accounts for the lack of evidence of a “contact shot”.
The evidence of the other two witnesses is therefore equivocal. It is consistent with Ms Chapman’s evidence but it obviously does not assist with the identity of the person who had the gun at the relevant time. Leaving aside the evidence of Ms Chapman the expert evidence does not assist as to whether the shot was fired close to Ms Chapman or further away-even outside the car. None of the evidence however is inconsistent with the evidence of Ms Chapman. The evidence is equivocal as to the version of events given by the accused.
Other witnesses
Sergeant Enman gave evidence of taking photographs of the motor vehicle left by Ms Chapman shortly after the shooting incident. The photographs showed what appeared to be bloodstains to the driver’s side seat cover and a hole that was consistent with a bullet hole. The Sergeant did not perform any examination of the car to see whether or not there was any gun residue in the car. She made a cursory search of the vehicle but was unable to locate a spent cartridge. I accept her evidence.
Ms Emsley gave evidence for the prosecution. She is currently a police officer as indeed is her husband Mr McAdam. On 2 January 2006 she and her husband were off duty and out walking their dog along Daws Road. As they approached Daisy Avenue on the southern side of Daws Road Ms Emsley became aware of a person to the western side of the train overpass. She marked the position on Exhibit P22A. Leading up to her noticing this person she had a clear view straight down Daws Road to the intersection of Daws Road and Marion Road. She had not seen anybody heading east along the southern side of Daws Road before that.
At the time she was pregnant. She and her husband stopped on the footpath to go across Daisy Avenue. She noticed this person continue to move towards her. He appeared to be looking around. He appeared very nervous and was sweating a lot although I note from Detective Modra’s evidence that it was an extremely hot day. He was sweating profusely according to Ms Emsley.
As Ms Emsley and her husband stepped off the footpath to walk across Daisy Avenue this person, who she later identified as the accused, asked about the location of the nearest phone box . She told him that there was a phone box from the direction in which he had just come from at the Park Holme shopping centre. He apparently replied that he wasn’t familiar with the area and that he had “just had an altercation with a friend in a car”. Ms Emsley’s husband mentioned there was a phone box further along the road near the “Video Ezy”. The exchange lasted for about a minute. Ms Emsley said that the accused seemed to be in a hurry and wanted to keep going. She later identified the accused from a photographic array. Her identification was not challenged and indeed was acknowledged by the accused when he gave his evidence.
Ms Emsley said she thought it was about somewhere between 2.30pm and 2.45pm when she saw the accused.
Mr Macadam, Ms Emsley’s husband, also gave evidence. He in effect confirmed the evidence of his wife. He identified the accused when he first observed him as being on the southern side of Daws Rd but west of the railway overpass. His evidence as to the location of the accused when he first noticed him was that the accused was further east than the position nominated by Ms Emsley. Both however placed the accused west of the railway overpass.
Mr Macadam also noticed that the accused was sweating profusely although he said it wasn’t that hot a day. He thought that the accused looked nervous, sweating heavily and frequently looking behind him. He did not hear all of the conversation that the accused had with his wife. He thought the conversation took approximately 30 seconds and that they continued their walk down Daws Road. He gave a description of the accused but did not identify him.
Mr Macadam said that he assumed that the accused had come from the bushes on the western side of the train line as he had not seen him walking along Daws Road prior to him noticing the accused just to the west of the railway overpass.
I accept the evidence of both Ms Emsley and Mr MacAdam. I accept Ms Emsley’s evidence as to the content of the conversation that she had with the accused.
Ms Chapman describes being shot whilst near the railway overpass on Marion Road. She stated that the accused got out of her vehicle near Bray St. She remembered seeing the service station. From the evidence given by Detective Modra as to distances, the accused had more than enough time to walk from where he got out of the car to where he was seen by Ms Emsley and Mr MacAdam. The accused had enough time to have disposed of the gun and be seen by these two witnesses.
However the accused’s appearance on Daws Road at the time stated by these two witnesses is not necessarily inconsistent with the version of events that the accused described in evidence. It is not evidence that assists the prosecution or the accused.
Detective Sergeant Wright gave evidence that he removed from the Royal Adelaide Hospital a bag of clothing belonging to the victim in the matter, Kathryn Chapman. He took the sealed bag of clothing back to the office. Enquiries with the Forensic Science Centre indicated that due to the fact that the clothing was covered in blood and that Ms Chapman had both AIDS and Hepatitis C the Forensic Science Centre were not prepared to examine those items. He therefore arranged for their destruction in a receptacle for biohazard waste.
He also gave evidence that he attended at the address at 14 Joanne Terrace, Parafield Gardens which he believed was the premises occupied by the accused. The accused was not there nor did he return to the premises that evening.
Detective Sergeant Wright also told me that the crime scene officers at the Sturt police station refused to handle the clothing due to the nature of the risk. Mr Lang was critical of the police for destroying the clothing which may have produced evidence relating to potential burn marks from the firearm involved. I agree that it was unfortunate but I accept that Detective Sgt Wright felt that he had little choice given the circumstances that he faced. Analysis of the clothing may have assisted with the question of whether the muzzle of the gun was close to Ms Chapman at the time of discharge. There is no evidence about the clothing.
Mr Tuohy gave evidence for the prosecution. He had known Ms Chapman for many years. On the day that she was shot he spoke to her twice on the telephone. She apparently called him. On the second occasion her voice was particularly muffled; it is likely that she was wearing a mask having been treated by ambulance officers. On both occasions when she called he was at Stepney. He thought the first call was around lunchtime. The first call which he believed occurred around lunch time, Ms Chapman told him that she had been shot in the leg.[18] He told her to call an ambulance but she apparently was running out of credit on her mobile telephone. He gained the impression that she was driving at the time because of the vehicle and traffic noise in the background. The second call that he received was about 45 minutes later.
[18] T261
He saw her the next day when he went to the hospital. He agreed that during the course of the telephone conversations that he had with her she did not mention who had shot her.
Mr Touhy has a tear drop tattoo on his hand between the forefinger and the thumb. He explained that such a tattoo is a sign of “atonement” for pain and suffering caused to people through his actions.[19] Such a tattoo placed on a persons face is the sign of a “murderer”.
[19] T337

Mr Touhy was a good witness. I accept Mr Touhys evidence that Ms Chapman called him twice on the day of the incident and that he was at Stepney when he received both calls.
Mr Quast, a journalist at the Advertiser, was also called by the DPP. In early January 2006 he was a journalist working at the Advertiser filling-in in the “police rounds” room.
On Thursday 5 January 2006 at around 3:19pm he answered a telephone call at work. The person who telephoned the Advertiser, it was conceded, was Mr Elliott. He initially wanted to speak to Sam Riches who was the senior police reporter. She was not in and as a result Mr Quast took the call.
He began writing notes in shorthand and longhand which was his usual method and eventually he obtained from another reporter a tape recorder. He put the telephone on “speakerphone” and recorded part of the conversation.
Mr Quast gave evidence with reference to his notes regarding the conversation and then the tape with a transcript of the recording were put before me.
In essence the accused told Mr Quast what he said in evidence in the court. He indicated that he had not got into the car with a gun and that he was the innocent party. Mr Quast’s evidence in this regard does not help me resolve the issues.
Later that day Mr Quast made an arrangement to speak to Ms Chapman. They met on the corner of Sturt Street and O’Brien Street in the city. The original arrangement had been to meet at a coffee shop but that shop apparently was closed. Also present during the meeting was a sketch artist from the Advertiser.
Ms Chapman told Mr Quast during the course of the interview that she had not used heroin for the past year and she went on to describe an identifying feature of the gunman as a person who had a teardrop tattoo between his thumb and forefinger. She told Mr Quast that “A teardrop means you’ve killed somebody”. Mr Quast said that she looked a bit tired when he spoke to her and she told him she had just come from the doctors. It was common ground that the accused had no such tattoo but a friend of Ms Chapman, Mr Tuohy, had such a tattoo.
Mr Quast was an impressive witness and I accept his evidence.
Detective Brevet Sergeant Modra was the investigating officer. He initially tendered the area of the Vermont shopping centre on 2 January 2006 and located the red laser motor vehicle parked by the side of the road. At that time Ms Chapman had been taken away in the ambulance. He arrived at the Vermont shopping centre at around 3:19pm by reference to his notes.
He agreed that the police attempted to use the media quite heavily during their investigation into the matter in the days that followed. On 2 January and in the days that followed they used the media to attempt to locate the accused. He said that initially they were attempting to locate a male called “Laurie” and later on in the investigation that person was identified as Laurie Elliott. The full name became available to the police on 3 January, the day after the shooting.[20] Eventually the accused was located approximately six weeks after the shooting at 23 Gardener Place, Port Adelaide.
[20] T313
I received in evidence part of a video tape of the interview of the accused upon his arrest. There is nothing in the interview that really assists the case other than to note that the accused denied at an early stage that he was in possession of a gun.[21] A certificate pursuant to the Firearms Act was tendered through Detective Modra[22] which indicated that the accused was not the holder of an appropriate firearms permit.
[21] Exhibit P26
[22] T317, Exhibit P27
In relation to distances Brevet Sergeant Modra made four measurements. The first measurement was from the overpass on Daws Road to Marion Road which measured 160 metres (it should be noted that this is different to the overpass on Daws Rd near where the accuse was seen by Ms Emsley and Mr MacAdam). From the overpass to Skorpo’s service station on Marion Road 820 metres. The overpass to Bray Street 1640 metres and the overpass to the Vermont shopping centre 2550 metres. Skorpo’s service station is a large service station on the western side of Marion Road. Near the Vermont shopping centre just north of the TAB was a phone box, which by inference, was the one used by Ms Chapman.
I accept Brevet Sgt Modra’s evidence.
The case for the accused.
The accused gave evidence. He, of course, was not obliged to do so.
In relation to the events on 2 January 2006 the accused told me that he spent the evening before 2 January with Ms Heath and her boyfriend Wayne. They had stayed up all night. He also told me that he had not gone to bed the night before that either, ie 31 December 2005. Mr Elliott told me that he had had alcohol problems since he was young and that on the night of 1 January 2006 he was drinking beer. He told me “I was shocking”.[23]
[23] T355
Mr Elliott said that Ms Chapman had rung him late in the evening of 1 January about driving him around. He was unclear as to how the arrangement came about but eventually she was to pick him up at a particular location in Largs Bay which was adjacent to Ms Heath’s house. He said that he had not directed her earlier to a place at Norwood.
When Ms Chapman turned up he came out of the house and was carrying at least three or four cans of beer (VB). He told me that they were still contained in the plastic wrapper that holds the cans together. He denied having any shopping bags with him. He was unable to say what time it was that he got picked up by Ms Chapman as he didn’t have a watch and he had been drinking through the night. He was intending to have Ms Chapman drive him to Morphett Vale to see a friend of his, Ms Jackie Byron. He had to put petrol in the car. At the petrol station he told me that Ms Chapman noticed how much money he had in his pocket. He told me that he had a reasonable amount of money in his pocket because it is difficult for him to get money out of the bank and this was the Christmas period so he had taken out a larger than usual amount.
Mr Elliott told me that Ms Chapman did not drive up Main South Road as he knew the way to Morphett Vale and they didn’t go that way. He was unable to recognise Ms Byron’s house. He repeated that evidence in his cross-examination.[24] He told me that they arrived at the street that he knew she lived in but he was unable to recognise the house even though they drove up the street four times. He blamed Ms Chapman for going too fast. He said that she was constantly on the phone. Mr Elliott told me that he had rung his friend Alex to try and find the address. This was done whilst they were in the Morphett Vale area. I note that the telephone records are not consistent with this evidence.
[24] T413
Mr Elliott told me that at various stages they were both making phone calls and at one stage Ms Chapman suggested going to Melbourne. At one stage the subject of the money that she owed him for the car came up and she offered to have sex with him. Mr Elliott said that Ms Chapman had told him that she received $400 for sex. He told me he refused the offer. At some stage Ms Chapman asked him how much longer he was going to be and he eventually said “Stuff it. Don’t worry about it, just take me home”.[25] At some stage Ms Chapman had said she could get the money off of her father.[26] They went back down South Road towards the city. Mr Elliott told me that Ms Chapman began to start driving in an erratic fashion and that she was on the phone. He said “We went from having all the time in the world to her being in a hurry.[27] He complained to her that she would get them killed and he asked to be let out. Ms Chapman said to him that she had to catch up with someone and that’s when she turned off of South Road. He wasn’t feeling comfortable with the situation. In effect he told me that he thought that he was being set up so when the car was stopped he got out of the car and ran off. As he told me “I bolted”.[28] He did not know where she turned off South Road. He was not able to specify any area where he got out of the car. He agreed that he eventually encountered the two off duty police officers who were walking their dog. As they had pointed out a phone box further up Daws Road he went to that area and rang Ms Munroe. He said he was basically lost and that he was able to tell Ms Munroe where he was and that when she picked him up they drove to the nearest bottle shop and got a carton of beer and they went back to Ms Munroe’s place.
[25] T363
[26] T417
[27] T416
[28] T364
He denied shooting Ms Chapman and he further denied that he was in the car when she was shot.
He agreed that at the time immediately after the shooting that he was “drunk for a while” and that having seen stories in the papers he rang the Advertiser and also rang the police. He didn’t want to surrender himself because he thought he would “Lose my pension because I will lose my house”.[29]
[29] T368
Under cross-examination the accused admitted that he had possessed many mobile telephones over the years and was unable to assist as to whether the telephone records Exhibit P related to the phone he had at the time. He agreed that as at early 2006 his financial position was “fairly tight”[30].
[30] T376.
In relation to the events on New Years eve the accused initially said that Ms Chapman was ringing him incessantly about returning the car. When it was pointed out to him that the telephone records indicated that she only rang Ms Matthews, not him, he would not agree that was the case.[31] However he did agree that she ruined his New Years eve whether she was ringing him or Ms Matthews.
[31] T391 and T438
The accused said that as at January 2006 he was “drunk all the time constant but I wasn’t-I am not an angry drunk, I not an argumentative-”[32]. He agreed that on the 2nd January 2006 he had not been to sleep for the previous two nights.[33] He told me that he fell asleep from time to time in the car whilst Ms Chapman was driving.[34]
[32] T394
[33] T414
[34] T423
The accused was unable to say where it was that he got out of the car and “bolted”.[35] He thought that when he saw the two off duty police officers he was somewhere between the railway overpass on Daws Road and Daisy Ave. He did not agree that he was to the west of this railway overpass. This evidence was in conflict with the two witnesses. He agreed he may have been sweating when he saw the two police officers.
[35] T420 and 457
The accused agreed that he may have rung Ms Chapman a number of times on the morning of 2 January 2006. He denied that he initially asked her to pick him up from Norwood-it was always that he be picked up from the Largs Bay area. He denied owing a gun at this time.[36]
[36] T407
The accused did agree that, at one stage whilst on the trip back to Adelaide, he grabbed Ms Chapman’s phone from her whilst she was using it and threw it to the floor of the car; the back of the telephone came off.[37] He told me he grabbed the phone because Ms Chapman was using it whilst driving erratically.
[37] T429
The accused was also cross-examined about the events in the car at Morphett Vale. He told me he tried to ring his friend Alex, on the mobile phone, whilst in the Morphett Vale area. When it was put to him that him that the telephone records did not support that assertion he continued to assert that he had made the call.
When asked about the five telephone calls made from his phone beginning at 2.26pm he was unable to tell me who he had called.[38]
[38] T448
Other witnesses for the accused
The accused called Ms Shiralee Heath. She has known the accused for approximately 12 years. Ms Heath was living at Largs Bay with a person by the name of Wayne Dynon. Unfortunately Mr Dynon is no longer alive.
Ms Heath gave evidence that on New Year’s Day she and Wayne agreed to pick Mr Elliott up from a mutual friend named Alex. Alex lived in the Norwood or Magill area. When they arrived at Alex’s house Mr Elliott was there along with Alex and Lisa. Lisa was the person who was staying with Ms Chapman. Ms Heath did not know her very well at all.
There was some discussion about Ms Chapman’s car and it was agreed that Mr Elliott was going to take the car back to Ms Chapman’s place at Brompton and that she and her partner Wayne would follow them there and once the car was taken back they would give Mr Elliott a lift.
After arriving at the house she and Wayne stayed in the car whilst Mr Elliott and Lisa went towards the house. Mr Elliott stayed by the front door and Lisa went inside. Eventually Ms Heath heard a lot of swearing and screaming. Eventually she went to the door herself. When she got to the doorway she saw that Mr Elliott was being sprayed in the face by Ms Chapman who appeared at that stage to be “really crazy”.[39] Around that time she was struck by a bottle in the head. She was bleeding and the three of them, namely Mr Elliott, Wayne and herself, left the premises and went to the Queen Elizabeth Hospital at Woodville. She did not report the incident to the police.
[39] T461
After being treated at the Queen Elizabeth Hospital she, Wayne and Mr Elliott went back to Wayne’s place at Centre Street, Largs.
Ms Heath had seven stiches placed in the wound on the side of her head at the Queen Elizabeth Hospital.
Upon return to the house the three of them stayed up all night talking. She told me that Wayne did not drink but that Mr Elliott had a carton of beer and that was the only thing that he had brought with him into the house. She denied any suggestion that there were firearms at the Largs Bay address. Ms Heath gave evidence that Mr Elliott had asked Wayne to drive him around but that Wayne did not want to leave her because she had been hit in the head and she was worried about concussion. On 2 January 2006 she said that she was present when Mr Elliott left the house. She saw him to the door. She was unable to remember precisely what the time was but she believed it was in the morning.
Ms Heath described Mr Elliott leaving with beers because “he always liked to have a traveller”.[40] According to Ms Heath there were only approximately six beers or so left and she said just leave one for breakfast for her and he “left with the rest, one in one hand open and the rest he just carried, like with the plastic part, you know”. Apart from those cans of beer he did not appear to have anything else with him.
[40] T465
Under cross-examination Ms Heath agreed that on New Year’s Eve that she and Wayne had been to see some friends and that they had stayed up all night. She agreed she had been drinking through the night, drinking perhaps six “Cruisers”. She said that Wayne did not drink. Wayne had used drugs in the past, in particular methamphetamine, but he did not use any drugs to her knowledge at the party on New Year’s Eve. Ms Heath agreed that she returned home after New Year’s Eve at about 8:00 or 9:00 in the morning. She said she was not drunk or intoxicated but that she wouldn’t have been sober. She described herself as perhaps being tipsy. She denied using any amphetamine herself.
When she and Wayne went to pick up Mr Elliott she thought he wasn’t drunk, he wasn’t stumbling or mumbling “he was just Laurie”.
After returning home from the Queen Elizabeth Hospital after the incident at Ms Chapman’s house, she agreed that they did not go to bed and stayed in the dining room. She and Mr Elliott were drinking but Wayne only drank coffee.
She agreed that by the next morning she had not slept for two nights.
Under cross-examination Ms Heath elaborated on what the accused had in his hand when he left the premises on the morning of 2 January. There was one in his hand, one left in the fridge and he gave her one on the way out which left four cans of beer in his other hand. She said as he was walking out with the six-pack “You can’t take them all, give me one. He says “There’s one in the fridge but I want one now” and that’s how it all sort of went down”.[41] Ms Heath conceded that from the carton of beer that had been purchased after treatment at the Queen Elizabeth Hospital she had only had a couple of beers and that he had drunk most of the carton of beer over the night.
[41] T480
Ms Heath denied that the accused was carrying two black bags or two recyclable bags as he left the house. She agreed that there was no reason for her to have remembered what had happened that morning.
I do not accept most of the evidence of Ms Heath. I reject her account of her recollection of what Mr Elliott was carrying when he left the house on the morning of 2 January 2006. Her evidence in that regard had an air of unreality about it given the lack of sleep and the amount of alcohol consumed over the previous 48 hours. Her memory was far too detailed. On her version of events nothing of note occurred. On her own version she was really in no state to pay attention to any detail. Her purported ability to remember that event some 2 years later in that sort of detail is simply not believable. Whether she has just reconstructed events or lied, to protect her friend, I do not have to decide. I simply do not believe her evidence on that topic.
I accept her evidence in general terms about what occurred at Ms Chapman’s house during the incident with Ms Chapman. However I reject her evidence as to her recollections of the accused leaving the house on the morning of 2 January 2006.
Ms Munroe was also called. She was a friend of the accused and had driven him around on the day when the deal regarding Ms Chapman’s car was made at the Mansfield Hotel. The next part of her relevant evidence was when the accused rang her in the afternoon of 2 January asking her to pick him up from Daw Road. She said she went there and when she picked him up he looked fine. He was on the side of the road. She had been given the directions of Daws Road. They went home after dropping in at a bottle shop and getting a carton of beer. He stayed at her place for a couple of hours and went to sleep. It was then she saw the news. She was shocked at the news and suggested that he had better go. Clearly the implication is that the accused had been named on the news by late in the day on 2nd January 2006.
I generally accept the evidence of Ms Munroe. Her assessment of the accused as “being fine” is at odds with the accused’s description of himself in that, on his own evidence, he had not slept for 48 hours and had continued drinking for that period of time. Also he had been, on his version of events, “bolting” because he was concerned for his safety. I do not accept that part of her evidence.
Analysis
I will turn first to the defence case. If I accept the evidence of the accused or if I consider it a reasonable possibility I must acquit him of all the charges.
I found the accused to be a most unimpressive witness. His evidence was in part difficult to understand and on many occasions discursive. Indeed in parts of his evidence he simply rambled. On occasions he was argumentative with counsel and some of his answers had a hint of paranoia about them. When confronted with evidence that could be interpreted as contradicting him he was aggressive and evasive. In my opinion he lied about his movements in the minutes leading up to the shooting. In my opinion he lied about his movements immediately after the shooting.
I do not accept his evidence as to ringing Alex from Morphett Vale. The mobile telephone records show that to be false. I found his evidence about his inability to say where he was when he “bolted” from the car and then to where he went until seen by the two off duty police officers near Daisy Avenue to be unbelievable. I find that he did make five phone calls beginning at 2.26pm on 2 January 2006. His evidence that he was unable to say to whom the calls were made, other than perhaps one to Ms Munroe was totally lacking in credit.
I have taken into account that the accused suffers from anxiety and that this condition no doubt influenced some of his behaviour in the witness box. That he suffers from stress and anxiety can be seen from his reaction, on video, when arrested. I also take into account that in the past he has been a heavy drinker. However even taking those matters into account his evidence was lacking candour. I reject his evidence about what occurred in the car with Ms Chapman on 2 January 2006. I accept that he was not involved in the fight that occurred between Ms Chapman and Linda Matthew. Other than that there was little of his evidence I could accept.

I reject his evidence that he did not have a gun in his possession when he entered Ms Chapman’s car. I have carefully considered the evidence of Ms Heath in this regard. As mentioned earlier I reject her evidence about her observations of the accused and what he was carrying when he left the house at Largs Bay.
Rejecting the defence case of course does not mean that the accused is guilty of any offence. I must still look at the prosecution case and ask myself if, on the evidence produced by the prosecution, they have proved all the elements of the three offences charged beyond a reasonable doubt.
The prosecution case relies, almost entirely, on the evidence of Ms Chapman. Thus her credibility is the major issue in the case. I found her to be an impressive witness.
Mr Lang criticised her evidence in a number of ways.
First he pointed to her poor memory of the events in the days leading up to 2 January 2006. It is true that she does have a poor memory of some of those events; she conceded as much herself. She readily conceded points in cross-examination when asked by Mr Lang regarding those incidents. Her inability to remember parts of the day before does not cause me to doubt her recollection of the events of 2 January 2006.
Mr Lang pointed to her mental health problems in the past. Ms Chapman conceded she had for many years had “psychiatric problems”. She conceded having been admitted to the Adelaide Clinic for a few weeks only a few months before this incident. Dr Bautz gave evidence that Ms Chapman was severely disturbed by the time she got to hospital after the shooting; he had her detained under the Mental Health Act. There was nothing in that evidence however that would suggest that she would be unable to remember who shot her.
Mr Lang also pointed to Ms Chapman’s past to suggest that she may well know people, and indeed have associated with people, who possess guns and are violent. Ms Chapman denied being involved with people with guns.
Mr Lang also pointed to what he said were inconsistencies in the Crown case based on the telephone records. I have given careful consideration to his submissions. In my opinion, the telephone records generally are not inconsistent with the Crown case. I accept that generally they are also not inconsistent with the defence case. As I stated earlier I accept the accuracy of the date, time of initiation and duration of the calls. As to where a telephone call was initiated, the accuracy of the records is more problematic, given the potential for variation from the coloured plans as tendered. Much depends upon where the car was located on Marion Road at the time various events occurred. That cannot be determine with any certainty.
Mr Lang also pointed to her statement to Mr Quast that the person who shot her had a “tear drop” tattoo between his thumb and forefinger. I accept that she did make that statement. It was common ground that the accused had no such tattoo.
I note that it was not suggested that she made such a statement to the police. Ms Chapman could not remember making the statement to Mr Quast. She did not deny making it. She was unable to explain why she made the statement other than she wasn’t thinking clearly in the days after the shooting. Ms Chapman told me that she does not now recall the person who shot her having such a tattoo.
It does appear that Ms Chapman did act in a somewhat unusual fashion after the shooting. She discharged herself from hospital early and against the advice of her doctors. She participated in discussions with the media about the shooting including Ms Quast. In my view her statement to Mr Quast was simply “bravado” in all of the circumstances. I accept her evidence that she does not have a recollection that the person who shot her had such a tattoo.
It is a matter which I have considered carefully. I accept, as indeed other evidence shows, that after the shooting she was not “thinking carefully”. In my view the evidence on this topic does not make me doubt her reliability about what occurred on the 2^nd January 2006.
I have carefully canvassed the evidence in the prosecution case. There is evidence that in part supports the version of events as stated by Ms Chapman. The timing and location of the mobile telephone calls as set out in the exhibit supports generally her evidence. The medical and ballistic evidence is equivocal as is the evidence of the two police officers.
At the end of the case the prosecution relies on the credibility of Ms Chapman. The other evidence, although not inconsistent with her evidence, would not be sufficient to found a conviction if I found Ms Chapman’ evidence to be unreliable.
I found her to be a good witness. She conceded points where appropriate. There was no exaggeration in her evidence. There was nothing in her past medical history that would suggest that she could be mistaken or confabulating about the events. There were some minor inconsistencies in her evidence but none of them make me doubt her reliability in relation to the events on the day of the shooting.
Her description of how the events leading up to the shooting were coherent and credible. Her description of how the shooting occurred and what she said to the accused immediately after the events was also coherent and credible. During her time in the witness box, and despite her having been shot, she showed little or no animosity towards the accused. I reject totally the suggestion that she was shot by someone else and has decided to blame the accused.
I have carefully considered all of her evidence and I have borne in mind the criticisms of her evidence made by Mr Lang. I have scrutinised her evidence with care. I have borne in mind that there were some inconsistencies in her evidence. The inconsistencies, bearing in mind her explanations, do not cause me to doubt her reliability as a witness.
I have no doubt that she was telling me the truth when she said that Mr Elliot held a gun to her crutch whilst he was a passenger in the car. I have no doubt that the gun discharged whilst the car was travelling along Marion Rd near the Oaklands Rd railway overpass and that the accused shortly after that got out of the car.
Once I accept beyond a reasonable doubt that Ms Chapman was shot by the accused the other evidence in the case is not inconsistent with her version of events.
The charges
I have found beyond reasonable doubt that it was the accused who produced the gun in the car and held it to the “crutch” of Ms Chapman. Against that background I turn to discuss the elements of the three offences.
The first count was “Creating Risk of Bodily Harm (Section 29(3) CLCA)”.
The particulars alleged were that Laurie Edward Elliot on the 2^nd day of January 2006 at Marion, without lawful excuse, committed an act, namely pointing a loaded firearm at Kathryn Chapman, knowing that the act was likely to cause harm to Kathryn Chapman and intending to cause such harm to Kathryn Chapman or being recklessly indifferent as to whether such harm was caused.
Elements
First the prosecution must prove that the accused, consciously and deliberately performed an act which, in fact, was likely to cause harm to the person of another. An unconscious, accidental or non-deliberate act would not be sufficient.
The act need not cause harm to any person. It is sufficient for the prosecution to prove that the act was likely to cause harm to the person of another.
It is a matter for my judgement on the facts whether the act, in fact, was likely to cause harm to the person of another.
Secondly, it must be proved at the time of performing the relevant act, the accused knew the act was likely to cause harm to the person of another.
Thirdly, the prosecution must prove that the accused either positively intended to cause harm to the person of another or was recklessly indifferent as to whether the performance of the relevant act caused harm to another
An accused is recklessly indifferent if, although not intending to cause harm to the person of another, he performs the act despite his knowledge that the act is likely to cause harm to another.
However, the offence is not committed if the accused had a lawful excuse for his actions. Here there was no suggestion of a lawful excuse.
It should be noted here that the particulars allege the act of the accused was a “pointing” of the gun. The only harm that can arise from a pointing of the gun is fear, fright or some form of psychological reaction by the victim. It cannot cover in my view the fact that the gun discharged and therefore “wounded” Ms Chapman. The harm that must be “likely” is the harm arising from the pointing of the gun, not it’s discharge.
It was argued by Ms McDonald that the use of the word “pointing” encompassed the handling of the gun such that it discharged. In submissions she put to me that;
The act here comprises the pointing of a loaded firearm at Ms Chapman in close proximity and the manipulation of either the hammer and/or the trigger, such that it actually did discharge.[42]
[42] T531
I do not accept that submission. The Oxford English Dictionary defines “point” (in this context) as “To direct (the finger, a weapon etc) at, to level or aim a gun at;…
In my view the definition of “pointing” can not be so contorted to suggest that it include in effect the handling of the gun in such a way that the gun discharges. No amendment to the information was sought prior to trial. I agree with Ms McDonald that to amend at trial would have been unfair to the accused.
If the offence charged was to cover the discharge of the gun it should have been so particularised. If the discharge of the gun is alleged to be anything other than accidental there are other more appropriate offences.
The DPP have proceeded, in this case, on the basis that Count 1 covers the discharge of the gun. In the circumstances, particularly where there is an alternative count dealing with the “threat” of pointing the gun I am of the view that the Crown should be bound by their elaborated particulars. I am conscious of the fact that particulars supplied cannot be elevated to the status of elements of the offence. However this is in my view a material averment which must be proved. It may be open to me to convict on a lesser basis. To convict on a lesser basis would be unfair to the accused.[43]
[43] Hayes v Kenning unreported BC9200247; judgment Duggan J.
In my opinion I do not need to consider the other elements of count 1.
I am not satisfied that “pointing” can amount to the handling of the gun such that it discharged. I am not satisfied beyond a reasonable doubt in relation to Count 1 and the accused will be acquitted.
The second count on the information was that of “Threatening a Person with a Firearm” in breach of s 47A of CLCA.
The particulars alleged were that Laurie Edward Elliot on the 2^nd day of January 2006 at Marion, without lawful excuse, threatened Kathryn Chapman with a firearm.
The elements that must be proved beyond a reasonable doubt are that the accused;
1) whilst in possession of a firearm
2) threatened Ms Chapman
3) and he threatened her without a lawful excuse.
As mentioned I find that the accused had the gun. I find that he pointed it and indeed held it against the “crutch” of Ms Chapman. He did so in circumstances where he threatened her. His conduct alone in performing that act was sufficient to constitute a threat. He clearly had no lawful excuse nor was one suggested.
I am satisfied beyond reasonable doubt of all of the elements beyond a reasonable doubt.
I find the accused guilty of Count 2.
The third count on the information related to the charge of “Possessing a Firearm Without a Licence” in breach of s11(1) of Firearms Act
The particulars alleged that Laurie Edward Elliot on the 2^nd day of January 2006 at Marion, had in his possession a firearm, namely a .38 revolver, whilst not the holder of a firearms license authorising possession of that firearm.
The Prosecution have to prove that he had in his possession the firearm (.38 revolver). For the reasons stated above I find beyond reasonable doubt that he was in possession of the gun on the date alleged. I accept the evidence of Brevet Sgt Lawrence beyond a reasonable doubt that the bullet he located was fired from a .38 revolver.
The certificate tendered through Detective Modra proved that the accused did not hold the appropriate licence as at 2 January 2006.
I find the accused guilty of Count 3.
Summary of Verdicts.
Count 1 - not guilty
Count 2 - guilty
Count 3 - guilty