R v Gallagher
[2013] NSWSC 1102
•19 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Patricia Anne Gallagher [2013] NSWSC 1102 Hearing dates: 6, 7, 8, 9, and 13 May; 21 June; 22, 23, 24, 25, 26, 30 and 31 July 2013 Decision date: 19 August 2013 Before: Bellew J Decision: 1.I find the accused not guilty of the murder of William Grant on 12 February 2009.
2.I find the accused not guilty of the manslaughter of William Grant on 12 February 2009.
3.I enter verdicts of acquittal in respect of both matters.
Catchwords: CRIMINAL LAW - Murder - special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 - where Crown relied upon circumstantial case - necessity to consider the entirety of the circumstantial case in determining whether the accused's commission of the alleged offence was proved beyond reasonable doubt
EVIDENCE - admissions - exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair - where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment - where accused had been interviewed by the police on two occasions and had denied killing the deceased - where police subsequently implemented undercover operation - where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence - where police continued with the undercover operation in those circumstances - where accused initially repeatedly denied responsibility for the deceased's death to undercover operative - where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased - whether the actions of the police in implementing and continuing the undercover operation were improper - whether the circumstances in which the admissions were made were otherwise improper - whether the evidence of the accused's admissions should be excluded as having been improperly obtained - alternatively whether evidence of the accused's admissions should be excluded on the basis of unfairness
EVIDENCE - admissions - where evidence that the accused had allegedly admitted to the killing of the deceased - where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made - whether the evidence of the admission should be excluded on the basis of unfairness.
EVIDENCE - lies - where Crown relied upon lies told by the accused as evidence of consciousness of guilt - whether the statements made by the accused were in fact lies - whether the lies were deliberate - whether the lies were evidence of consciousness of guilt
EVIDENCE - tendency evidence - whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressivelyLegislation Cited: Evidence Act 1995
Mental Health (Forensic Provisions) Act 1990Cases Cited: BP v R; R v BP [2010] NSWCCA 303
Director of Public Prosecutions v AM (2006) 161 A Crim R 219; [2006] NSWSC 348
Douglass v R (2012) 290 ALR 699
Edwards v R (1993) 178 CLR 193
Em v R (2007) 232 CLR 67
FB v R [2011] NSWCCA 217
Fleming v R [2009] NSWCCA 233
Knight v Maclean [2002] NSWCA 14
R v AH (1997) 42 NSWLR 702
R v Chamberlain [No. 2] (1984) 153 CLR 521
R v Chittadini [2008] NSWCCA 256; (2008) 198 A Crim R 492
R v Cornwell (2003) 57 NSWLR 82
R v Coulstock (1998) 99 A Crim R 143
R v Eade (2000) 118 A Crim R 449; [2000] NSWCCA 369
R v Ellis (2003) 58 NSWLR 700
R v Hillier (2007) 228 CLR 618
R v Lockyer (1996) 89 A Crim R 457
R v Lodhi [2006] NSWSC 672
R v Medcalfe [2002] ACTSC 83
R v Nelson [2004] NSWCCA 231
R v Jarrett [2012] NSWCCA 81
Ridgway v R (1984) 184 CLR 19
Riley v R [2011] NSWCCA 238
Robinson v Woolworths Limited trading as Woolworths Plus Petrol Werrington (2005) 64 NSWLR 612; (2005) 227 ALR 353; (2005) 158 A Crim R 546; [2005] NSWCCA 426
Shepherd v R (1990) 170 CLR 573
Teubner v Humble (1963) 108 CLR 491
Tidy v Battman [1934] 1 KB 319
Tofilau and ors v R (2007) 231 CLR 396; [2007] HCA 39
Zoneff v R (2000) 200 CLR 234Texts Cited: Uniform Evidence Law (10th Ed) - Odgers Category: Principal judgment Parties: Regina - Crown
Patricia Anne Gallagher - AccusedRepresentation: Mr J Crespo - Crown
Mr M Austin - Accused
Director of Public Prosecutions (NSW) - Crown
Legal Aid New South Wales - Accused
File Number(s): 2010 / 381412 Publication restriction: Passages of judgment suppressed in accordance with orders made on 29 July 2013 and 22 August 2013
Judgment
INTRODUCTION
Between the late evening of 11 February 2009 and the early hours of the morning of 12 February 2009 William Grant ("the deceased") was stabbed at his home in suburban Revesby. At about 4.14am on 12 February 2009 he was pronounced dead. There is no issue that the cause of his death was an abdominal stab wound which severed his thoracic aorta. The Crown alleges that Patricia Anne Gallagher ("the accused") was responsible for his murder.
A special hearing has been held pursuant to the provisions of s. 19 of the Mental Health (Forensic Provisions) Act 1990 ("the Forensic Provisions Act") which are in the following terms:
19 Court to hold special hearing after advice received from Director of Public Prosecutions
(1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 45 (3) or 47 (5) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court:
(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and
(b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken.
(2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.
(3) If the Director of Public Prosecutions advises the Court under subsection (1) (a) that no further proceedings will be taken in respect of the offence, the Director of Public Prosecutions is also to give that advice to the Minister for Police.
(4) Subsection (1) does not apply if the Court has already held a special hearing in relation to the offence concerned.
On 30 August 2012 the court received a report from the Mental Health Review Tribunal advising (inter alia) that because of her severe cognitive impairment, the accused was not fit to be tried for the offence of murder and that on the balance of probabilities, that situation would continue and the accused would not become fit during the ensuing 12 months. A determination was made by the Director of Public Prosecutions pursuant to s. 19 of the Forensic Provisions Act that further proceedings were to be taken in the matter. It is against this background that the special hearing has been conducted.
Pursuant to s. 21A of the Forensic Provisions Act, a special hearing is to be conducted by a Judge alone unless an election is made by either the Crown or the defence that there be a jury. No such election was made by either party in the present case.
Pursuant to s. 22(1) of the Forensic Provisions Act, the following verdicts are available to be returned:
(i) that the accused is not guilty of the offence charged;
(ii) that the accused is not guilty on the ground of mental illness;
(iii) that on the limited evidence available, the accused committed the offence charged; and
(iv) that on the limited evidence available the accused committed an offence available as an alternative to the offence charged.
As to the matter in (iv), manslaughter is an available alternative verdict, given that the accused has been indicted for the offence of murder.
At the commencement of the hearing, counsel foreshadowed that there would be a number of evidentiary issues which I would be asked to determine. However, neither party sought the preliminary determination of such issues. By agreement with counsel for the accused, the Crown adduced the entirety of its evidence and indicated, in the course of doing so, those particular parts of it which were relevant to the evidentiary issues which I would be asked to determine. At the conclusion of the entirety of the evidence, both Counsel addressed these specific issues individually, before proceeding to make submissions as to the evidence as a whole.
AN OVERVIEW OF THE CROWN CASE
At the time of his death, the deceased lived at Unit 5, 16-22 Blackall Street, Revesby. The accused, who had known the deceased for some years, lived in the nearby suburb of Padstow. Although it is not completely clear, it appears that they may have been in a sexual relationship at some point.
At the time of the deceased's death the accused had a cognitive impairment as a result of numerous aetiologies. The accused and the deceased both drank to excess, sometimes in the company of each other.
At or about midday on 11 February 2009 the accused went to the deceased's unit block. In or about the early afternoon of that day the deceased and a neighbour, Jack Jones ("Jones") moved a refrigerator from the deceased's premises to a garbage area made available for residents. The accused was present during that activity and was heard to tell the deceased that she would "kill him" if he didn't "get off the wine".
In or about the late afternoon or early evening of the same day the accused attended the premises of Michael Baston ("Baston") who lived in Unit 3, and who was known to the accused and others as "Pommy Dad". The accused left two shopping bags at Baston's premises before attending Jones' premises at Unit 9 where she and Jones had an argument. The accused also attended the residence of Elisabeth Smith at Unit 7, either before or after visiting Jones.
At some point, the accused made her way to the deceased's premises. At 7.21pm she made a 000 call from the landline of the deceased, apparently complaining that Jones had indecently assaulted her.
In response to that call, police arrived at the deceased's premises at about 8.50pm, at which time both the deceased and the accused were present.
The attending police formed the view that the accused was affected by alcohol. They described her as aggressive, difficult to understand and "rambling" as she gave her account of what had allegedly happened between her and Jones.
The deceased who was sitting on a lounge chair at the time, said to the accused:
"Calm down Pat, they're just doing a job. Just listen."
The accused told the police that earlier in the day, she had gone to Jones' premises. According to the accused, Jones expressed his affection for her and in doing so, grabbed her breasts. The accused told police that she simply wanted Jones "spoken to" and that she did not wish any action to be taken beyond that.
Police left the deceased's premises and spoke with Jones who admitted that the accused had been at his premises earlier in the day. He also said that he had asked her to leave as a consequence of her removing food from his premises, and otherwise denied the accused's allegations.
Late on the evening of 11 February a number of calls were made from the landline attached to the deceased's premises to a televised appeal for donations for bushfire victims. There were also calls made from that landline to the premises of Hilda Fetch during that evening as well as in the early hours of 12 February. Mrs Fetch was the mother of Norman Fetch, an acquaintance of the accused. It is the Crown case that each of the calls made to her number were made by the deceased.
At some time during the late evening of 11 February, the accused left the deceased's premises and went to Baston's premises where she collected the shopping bags which she had left there earlier in the day. The accused told Baston that she was feeling tired and wanted to go home. Baston saw the accused leave his premises and walk across the car park of the unit complex, in a direction opposite to that of the deceased's premises.
At 12.28am on 12 February the accused called 000 from the deceased's premises. She told the operator (inter alia) that the deceased was bleeding from the stomach.
Ambulance officers arrived at the deceased's premises at about 12.43 am. The accused, who was known to one of the ambulance officers as a patient whom he had previously treated, was present at the time. She was described as being upset, and in a state of panic and distress. When asked what had happened the accused said (inter alia):
"I don't know".
The deceased was observed by the ambulance officers to be sitting at the base of the toilet in the bathroom with a towel covering his chest. He was conscious and when asked what happened by the ambulance officers he too answered:
"I don't know".
The ambulance officers then commenced to treat the deceased at the scene. One of them said (inter alia):
"Who's done it? Who stabbed him?"
The accused replied:
"I don't know. He tried to kill himself before. He's got mental health issues".
The accused's assertion that the deceased had previously tried to take his own life is said by the Crown to be a deliberate lie, and thus evidence of her consciousness of guilt.
The accused also said to police:
"He's stabbed himself and overdosed before".
On the Crown case that statement was a second deliberate lie told by the accused.
After police attended the deceased's premises, the deceased had a conversation with a police officer in which he said:
"You think I did this to myself? I wouldn't, I have never done anything to myself".
The deceased was transported to hospital by ambulance. On the way to the hospital he was again asked what had happened to him, and he again replied that he did not know. He also told the ambulance officers that he had been drinking.
On the way to the hospital, the deceased was asked by one of the ambulance officers whether he had inflicted the injury upon himself. He responded:
"Don't be a bloody idiot, I've survived cancer, why would I try and kill myself?"
Although the deceased was treated at hospital, he was pronounced dead at about 4.14 am on 12 February 2009. The cause of death was an abdominal stab wound which severed his thoracic aorta.
The accused participated in two lengthy interviews with police. The first of those interviews was conducted in the early hours of 12 February 2009, and the second on 30 March 2009. The accused was not placed under arrest on either occasion and she denied being responsible for the deceased's death.
Scientific evidence establishes that a bloodstain, said by the Crown to be left by the deceased, was found on the floor of the kitchen of his premises. Nearby, there was a knife seized by police which, when subjected to a presumptive test, revealed the possible presence of blood.
The Crown alleges that some days after the deceased's death, the accused telephoned the landline of Hilda Fetch and left a message on an answering machine in which she admitted having stabbed the deceased. Whether this evidence should be admitted is another of the evidentiary issues for determination.
In 2009, police commenced an undercover operation with the objective of obtaining admissions from the accused as to the killing of the deceased. The accused was befriended by an undercover police officer referred to in these proceedings as UCO-1, with whom she met regularly over the ensuing 12 months. Despite the frequency of their meetings, and despite the deceased's death being a subject of discussion between them, the accused made no admissions to UCO-1. SUPPRESSED. Other matters which were the subject of discussion included the accused's psychological treatment, and her alcohol addiction.
On the morning of 16 November 2010, as part of the undercover operation, police attended the accused's premises and informed her that she had been identified as the main suspect in the murder of the deceased, and that she was required to attend the police station at 8.00 am on the following morning for questioning. Following that visit by the police, UCO-1 attended the accused's premises at which time the accused informed her of the earlier visit by the police. UCO-1 then informed the accused that she too had been questioned by the police as to her association with the accused. SUPPRESSED.
SUPPRESSED who was in fact another undercover officer known as UCO-2. Consistent with the discussions which had previously taken place between UCO-1 and the accused, SUPPRESSED. The entirety of the accused's conversation with UCO-2 was recorded and is in evidence before me.
In the course of these discussions, the accused made a number of statements denying any involvement in the deceased's death. These denials were met, in almost every case, by UCO-2 expressing some disbelief of them, SUPPRESSED. Finally, the accused told UCO-2 that she had stabbed the deceased. Shortly after doing so, other police officers who had been monitoring the conversation in an adjoining room, entered the room and arrested the accused. After the accused was conveyed back to the police station, she made further admissions to the police. Whether the evidence of the accused's admissions to UCO-2 and the other police should be excluded is another of the evidentiary issues I am required to determine.
It is part of the Crown case that the accused was a person who had a tendency to act in a violent and aggressive manner. Whether some of the evidence relied upon by the Crown in this respect should be admitted as tendency evidence is another of the evidentiary issues for determination.
In summary, the Crown case is that the accused, having consumed alcohol, armed herself with a knife from the kitchen of the deceased's premises and stabbed him, either before she left his premises late on the evening of 11 February, or when she returned in the early hours of the morning of 12 February 2009. The Crown alleges that she did so either intending to kill him, or intending to inflict grievous bodily harm upon him.
The Crown further alleges that having murdered the deceased, the accused cleaned the knife which she had used to stab him, before returning it to the knife block which was located on the kitchen bench.
The primary position of the accused is that the entirety of the evidence is insufficient to establish that she was responsible for the death of the deceased.
THE EVIDENTIARY ISSUES
As I have noted in outlining the case, I have been asked to determine the following evidentiary issues:
(1) whether the admissions made by the accused to UCO-2, and subsequently to other police, should be excluded, pursuant to either s. 138 or s. 90 of the Evidence Act 1995 ("the EA");
(2) whether evidence of previous behaviour on the part of the accused should be admitted as evidence tending to establish that she is a violent and aggressive person;
(3) whether evidence of an admission, said to have been left by the accused in a message on a telephone answering machine, should be excluded pursuant to the provisions of either s. 90 or s. 137 of the EA; and
(4) whether statements made by the deceased constitute lies which evidence a consciousness of guilt.
I have dealt with the last of those issues when considering the ultimate issue of whether or not the evidence establishes, beyond reasonable doubt, that the accused murdered the deceased.
THE ACCUSED'S ADMISSIONS
The undercover operation
In or about mid July 2009, the officer in charge of the investigation, Detective Taylor, made contact with the undercover branch of the New South Wales Police. On that occasion, he discussed what he described as "strategies" for the ongoing investigation. At some point, a decision was taken to implement an undercover operation. In broad terms, it was proposed that an undercover officer, UCO-1, would befriend the accused over a period with a view to obtaining admissions from her regarding the deceased's death.
The accused had been admitted to hospital in about mid 2009, causing the commencement of the undercover operation to be delayed. On 1 October 2009 Detective Taylor made the first of a series of applications for warrants authorising the use of listening devices by UCO-1, the officer who was to meet with and befriend the accused. Those meetings took place over a period of approximately 12 months, and the transcripts of what was said in those meetings are before me in evidence.
As events transpired, the accused made no admissions to UCO-1. However, in the circumstances more fully described below, the accused ultimately met with another undercover operative, UCO-2, to whom she admitted having stabbed the deceased. Shortly after making that admission, the accused made further admissions to Detective Taylor. In order to determine whether the evidence of these admissions ought be excluded, it is necessary for me to set out, in some detail, the relevant aspects of the undercover operation.
The accused and UCO-1 meet
UCO-1, who first met the accused on 28 October 2009, gave evidence (commencing at T215 L10) of the manner in which the operation was conducted, and its objectives:
Q. That undercover operation was carried out over the course of a year?
A. Yes.
Q. During that undercover operation the intent, in terms of your involvement, was to record admissions by Patricia Anne Gallagher in relation to the murder?
A. Not myself, no.
Q. You were recording your conversations with Patricia Gallagher?
A. Mmmmmm.
Q. When you were having conversations with Patricia Gallagher, your hope was that she would discuss the murder?
A. Yes.
Q. And make admissions against her interests in relation to that murder, is that right?
A. Yes.
Q. In terms of that operation, that was unsuccessful in that on no occasion did she make such admissions?
A. Not to me, no, she didn't.
Q. In terms of that operation, she wasn't talking to anyone else?
A. My understanding is there was one operation, Strike Force Woodfield. It was the one operation.
UCO-1 first met with the accused on the morning of 28 October 2009. On that occasion she stopped the accused on a street in Padstow and, on the pretext of being new to the area, she struck up a conversation with the accused in which she (UCO-1) asked her to recommend a nearby coffee shop. They spoke to one another over a period of about one hour on that day, in the course of which the accused provided (at UCO-1's request) her contact details. Their meeting concluded with an arrangement to meet again the following week.
UCO-1 subsequently met with the accused on numerous occasions between October 2009 and September 2010. She also spoke with the accused on the telephone on various occasions during that same period. It is not necessary for me to set out the entirety of the subject matter that was discussed on those occasions. Much of it was somewhat mundane conversation which was obviously directed to the objective of UCO-1 forming a relationship with the accused in which the accused would feel sufficiently comfortable to speak about the deceased and admit to killing him. There were, however, some particular matters which were the subject of discussion to which I must refer, and which are relevant to the issue of whether or not the accused's admissions ought be excluded.
Firstly, the accused and UCO-1 discussed the fact that the accused was, at the time, undertaking some form of psychiatric or psychological treatment. For example, in the conversation recorded on 16 March 2010 the following appears (commencing at T 6):
"UCO-1: And Robbie's the psychiatrist.
Accused: Yeah.
UCO-1: Now I got you.
Accused: Yeah.
UCO-1: So how does, I don't understand how it works.
Accused: Well get...paper, and she writes...
UCO-1: Yeah.
Accused: ...oh well, I...
UCO-1: Tell me about it. They, everyday, there's another one, isn't there?
Accused: ...She said, There's...and she said, actually there are...
UCO-1: Yeah.
Accused: ...bullshit
UCO-1: They are, a lot of them. Yeah.
Accused: She'd write that down and then she gives me a, like, a book...and then my...and then I gotta...don't know what that means...
UCO-1: Yeah.
Accused: And am I...treatment.
UCO-1: Yeah.
Accused: Unsatisfied and I write very satisfied.
UCO-1: What happens if you say an unsatisfied?
Accused: Hmm.
UCO-1: What happens if you say unsatisfied? What do they do?
Accused: Put me onto another.
UCO-1: Oh, so if your unsatisfied with that person, with Robbie?
Accused: Yeah.
UCO-1: Ok. I got you.
Accused: Yeah. And then that goes...hand.
UCO-1: So Robbie's a girl?
Accused: They're both girls.
UCO-1: They're, ok.
Accused: Yeah.
UCO-1: Yeah.
Accused: ...
UCO-1: Oh, yeah, I knew...but Robbie is girl?
Accused: Yeah.
UCO-1: Yep. Ok.
Accused: ...
UCO-1: Sweet.
Accused: But on the back seat, I said...to much...
UCO-1: Yeah.
Accused: And on that...like, why would you do that...and I just write, well with the hell I've been through, I don't know what I'd do without counselling.
UCO-1: ...yeah.
Accused: I, I don't
UCO-1: Yeah.
Accused: I never had it before.
UCO-1: No.
Accused: Never got a, are you mental, is that why you're here...
UCO-1: Is that what they said?
Accused: Yeah. If you are here on...are here because you have mental issues and I go, Robbie...so. I'm here 'cause and then I'm...she says, No, you're here anger management.
UCO-1: Yeah.
Accused: Well its got no anger management or not, its got mental. But she give it to me don't worry about that, you don't worry about...and I go, Well, what'd you give it to me for."
This was not the sole occasion on which the accused discussed her psychological care and treatment with UCO-1 (see conversation of 13 April 2010 at T 2; conversation of 30 April 2010 at T 1; conversation of 1 July 2010 at T 1 and 5; conversation on 15 August 2010 at T 37 - 40; conversation of 15 September 2010 at T 34).
Secondly, both in the context of conversations concerning the accused's psychological treatment as well as independently of that, the accused told UCO-1 that she had been having suicidal thoughts. For example, in the conversation of 15 August 2010 (commencing at T 37) the following exchange took place:
"Accused: - - -if I could shop (sic) my head off and put somebody else's then I would do it but I mean, I tell you what lately I've just been thinking and can't get...my car and I'm chicken.
UCO-1: Don't do anything stupid Pat.
Accused: And then I thought, I'd been thinkin' I'll nip me fuckin' self.
UCO-1: No you don't do, no, no, no.
Accused: Why am I thinkin' it?
UCO-1: If knew that you've nipped yourself or you've taken pills I'll fuckin' come down on you like a ton of bricks, no don't do that, there's ways around it, if you have to move, move. If you're not happy where you are, move or find a ... that, that's not the answer its not. And if you're feeling that way you really need to go and see someone professional - - -"
In a later conversation on 15 September 2010 there were references to Banks House, an institution which the accused referred to as a "nut house", as well as references to the accused having considered suicide.
Thirdly, there were references in the accused's conversations with UCO-1 (in the context of her psychological treatment) to the fact that she had been prescribed, and was apparently using, some form of medication. For example, in the conversation of 15 August 2010 the following exchange took place (at T 42):
Accused: See all this medication, it's not working;
UCO-1: So you need to tell her. Who's given you the medication?
Accused: ...
UCO-1: Well have you told him that, what's he got you on?
Accused: I don't know.
Finally, there were references in conversations with UCO-1 to the accused's attendance at Alcoholics Anonymous. For example, in the course of the conversation of 15 September 2010 the following exchange took place (at T 33):
UCO-1: Mmm. So yeah, so your week, what days are good for you so I can plan my life around you, what days do you go to AA?
Accused: Thursday, tomorrow AA;
UCO-1 was cross-examined by counsel for the accused in relation to her role in the undercover operation and, in particular, in relation to her knowledge of the accused's psychological condition. She told the court that in the absence of reviewing the transcripts (a task which, for reasons which are unexplained, she had not undertaken prior to giving evidence) she had little memory of the content of her conversations with the accused.
The cross-examination of UCO-1 by Counsel for the accused included the following (commencing at T220 L27):
Q. From your dealings with her over the year, did you form the view she had a problem with alcohol?
A. No, because every time I met her it was for a coffee, and she was never drunk on occasions I met her...
...
Q. Did you become aware she was being treated for psychiatric problems at Banks House in Bankstown?
A. No.
...
Q. Do you remember her mentioning the first names of psychologists, one being Robbie and one being Veronica?
A. I remember the name Robbie, yes.
Q. You remember that as a psychologist?
A. I remember the name Robbie.
Q. Do you remember her on occasion discussing with you suicidal thoughts?
A. No.
This cross-examination culminated in the following (commencing at T221 L40):
"Q. On any account, can I take this from those answers, that you when you spoke to Detective O'Toole, prior to the commencement of the operation at SUPPRESSED, you didn't raise with him any issues of Patricia Gallagher being an alcoholic, you didn't raise that with him?
A. No.
Q. Any psychological problems she may have?
A. No.
Q. Any problems with her memory?
A. No.
Q. Any problems in relation to brain injuries she had suffered in the past?
A. No, not that I recall. I don't remember any of that being mentioned."
It is impossible to reconcile at least some of UCO-1's evidence with the content of the transcripts of some of her conversations with the accused. For example, as I have pointed out, the accused's attendance at Alcoholics Anonymous was the subject of a specific discussion with UCO-1. In these circumstances, I do not accept UCO-1's evidence that she did not form a view that the accused had some problem with alcohol. I also do not accept UCO-1's denial of any knowledge of the accused's treatment at Banks House. That too was the subject of a specific reference in one of the conversations. In my view, UCO-1 must have been aware of the fact that the accused was under some form of psychological treatment, that she was taking medication and that she was undergoing treatment for alcohol dependence.
In these respects, the evidence of UCO-1 may be usefully contrasted with that of Detective O'Toole who was her supervisor and who, in that capacity was someone with whom UCO-1 was in regular contact during the course of the operation.
Detective O'Toole took over the management of the undercover operation in February 2010, approximately 3 months after its actual commencement. On 31 March 2010 he contacted a Behavioural Science Team in the Forensic Services Group of the NSW Police due to what he described as "difficulty" in UCO-1 building a relationship with the accused. Detective O'Toole corresponded with that group between April and July 2010 and, on one occasion, he and UCO-1 met with a Psychologist to discuss how UCO-1 could build a stronger relationship with the accused. Throughout this period Detective O'Toole supervised UCO-1's meetings with the accused.
In cross examination, Detective O'Toole explained (commencing at T229 L42) that the reason he contacted the Behavioural Science Team was that UCO-1 was having "some issues" in dealing with the accused. When asked by me about the nature of such "issues" Detective O'Toole responded (at T229 L49):
"Just not concentrating on discussions as they were taking place and things to that sort of regard".
Detective O'Toole went onto to describe (at T230 L5) the accused as being "a different person to deal with than (he) was certainly used to". When asked to elaborate on the difficulties that UCO-1 was experiencing in dealing with the accused Detective O'Toole said (at T230 L17):
"From my memory, it was mainly just having her concentrate on a topic of conversation. She would go off on tangents. If something more interesting was happening around her, she would concentrate on that other than the topic of conversation with UCO-1".
Detective O'Toole agreed that he had been made aware that the accused had some issues with alcohol and that he was generally aware of the possibility that she may have abused alcohol at some stage in her life. He also agreed (at T231 L13) that he had been informed that the accused was receiving treatment for anger management, although he thought that the source of that particular information was Detective Taylor. Detective O'Toole then gave the following evidence (commencing at T231 L38):
"Q. Do you have any recollection of being told that she was under the care of any psychologist for any particular condition?
A. During a particular deployment I recall Patricia telling UCO-1 that she was speaking to somebody about some psychological issues, I believe.
Q. Was that someone she only mentioned by first name, Robbie or Veronica?
A. Robbie does ring a bell with me.
Q. Does this refresh your memory that Robbie was her case worker at Revesby Medical Centre?
A. I'm not sure. I recall the name Robbie being mentioned.
HIS HONOUR
Q. Were you aware of all of these things at the time that the forensic psychologist at the Behavioural Science Team became involved?
A. I believe I was, yes.
Q. So you were aware at that time, were you, that there was some history of the accused having what might be described as anger management issues?
A. Yes.
Q. You were aware at that time she was being treated by some form of health professional for psychological issues?
A. She was undergoing some sort of treatment, yes.
Q. For psychological issues?
A. I don't recall if it was psychological issues but certainly some treatment.
Q. What form of medical treatment did you think it was or was it simply the case that you didn't know?
A. Well, thinking back now, I was just aware it was medical treatment. I didn't concern myself with knowing what branch of the medical treatment it was taking.
Q. You are also aware from your conversations with UCO-1 that there was a difficulty, if not an inability on the part of the accused to concentrate in the course of a concentration?
A. Yes."
I formed the view that Detective O'Toole gave candid and honest evidence. I am satisfied that at some point after he assumed the management of the operation, he became aware of the fact that the accused had the difficulties he identified in his evidence, as a result of which he sought professional advice as to how those difficulties might be overcome, and a closer relationship forged between UCO-1 and the accused, so as to increase the prospect of the accused making admissions.
Within the period during which UCO-1 spoke with the accused there were two meetings which were particularly significant. The first was a meeting on 13 April 2010 and the second a meeting on 15 August 2010.
The meeting on 13 April 2010
When she met with the accused on 13 April 2010 UCO-1 put an offer to the accused regarding work with SUPPRESSED a role later adopted by UCO-2. On that occasion, the following was said (commencing at T 13):
UCO-1: I've got a proposition for you if you're keen.
Accused: (LAUGHS)
UCO-1: But it goes nowhere. It's between you and me and no - one else.
Accused: ...
UCO-1: Yeah, definitely. Thank you. Ta.
Accused: Thank you.
UCO-1: Well, you are, you're like a sister to me. Um, SUPPRESSED. Um I've mentioned him before.
Accused: Hmm.
UCO-1: SUPPRESSED
Accused: But he doesn't know me from a bar of soap.
UCO-1: No, and he doesn't want to know you. He wants, needs, like, SUPPRESSED
Accused: Oh, eh...
UCO-1: Yeah, yeah. Um, but I said, like, I trust you with me life and everything and he was pretty happy with that but, um, so if you're interested, like, I'll have to speak to him obviously. SUPPRESSED
Accused: Oh...
UCO-1: - - - You keep it at your place, I come and get it off you."
The conversation concluded with arrangements being made, in general terms, to speak in the coming weeks.
The meeting on 15 August 2010
When she met with the accused on 15 August 2010, and after the accused had made a reference to the deceased, UCO-1 sought to direct the conversation towards that subject, saying (at T 7):
"I poured my heart out to you about the bloke that flogged the crap out of me, you never told me about you and Billy".
In the ensuing conversation, the accused spoke of the history of her relationship with the deceased. She also told UCO-1 that the deceased was the victim of a "fatal stabbing" and that she had found the deceased and called 000. At no stage of the conversation did the accused admit stabbing the deceased.
The meetings between UCO-1 and the accused conclude
The undercover operation, in so far as it incorporated conversations between the accused and UCO-1, was unsuccessful in securing any admissions from the accused. There followed the introduction of the undercover operative UCO-2 into the investigation. UCO-1 explained how that came about (commencing at T219 L16):
"Q. On any account, the activity at SUPPRESSED was different in terms of what was being done, if we could put it in those terms, from Ms Gallagher, from the activities that you had been involved with in the operation up to that point. Is that right?
A. Yes.
Q. The decision to carry out the investigation, if that term could be used for it, at SUPPRESSED, was made after a lengthy period of you having discussions with Patricia Gallagher which resulted in no admissions by her in relation to the murder. That is right, isn't it?
A. Yes, she didn't make admissions to me.
Q. The reason for proceeding with the use of the Undercover Operative UCO-2 at SUPPRESSED was because up to that point the operation had been unsuccessful in terms of obtaining admissions from Ms Gallagher. That is right?
A. Yes.
A question did arise in the proceedings as to whether the undercover operation incorporating the meetings between the accused and UCO-1 was a separate operation to that which took place at SUPPRESSED, or whether the latter was simply a continuation of the former. In my view, nothing turns on that question, and it is not necessary for me to resolve it.
The police attend the accused's premises on 16 November 2010
As a prelude to that part of the undercover operation which ultimately took place at SUPPRESSED, Senior Constable Dabin attended the accused's premises on 16 November 2010. On that occasion, he told the accused that he had been assigned to investigate the death of the deceased and that the accused had been identified as the "main suspect" in that investigation. He told the accused that he required her to attend the Bankstown Police Station at 8.00 am the following morning so that detectives could "speak" with her. The conversation between the accused and Senior Constable Dabin included the following:
Dabin: Ok. I want you to get some legal advice from a lawyer and bring one with you tomorrow to the police station.
Accused: A lawyer. Where will I get lawyer from? I don't know any lawyers. Should I call my caseworker?
Dabin: I don't know if your caseworker can help you. Maybe you have a friend that can help you with that I don't know. I just want you to know that I need you to come to Bankstown Police Station tomorrow morning at 8am.
Accused: Yes. Yes. I just don't know.
Dabin: Patricia. As you know this investigation has been ongoing for quite some time?
Accused: Yes I know that.
Dabin: Ok. I believe that we have enough evidence surrounding the case now that identifies you as the main suspect which is why I am giving you the chance to get a lawyer and bring him with you. I don't where to get a lawyer from. You might have a friend who knows one I don't know. You might want to bring some spare clothes also.
Accused: Clothes. I can do that.
Dabin: Good. Look I am just trying to be fair with you today. If the murder happened yesterday then I would probably arrest you right now. But because it happened almost 2 years ago I am going to let you get some help. Ok."
Following his conversation with the accused at her home, Senior Constable Dabin went to SUPPRESSED where he spoke with Detectives Stamoulis and Taylor.
Senior Constable Dabin did not record the time at which he arrived at, or departed from, the accused's premises. The evidence establishes that UCO-1 made calls to the accused's landline at 12:12pm, 2:02pm, and 2:16pm on that day. None of those calls were answered and on each occasion UCO-1 left a recorded message. Between the first and second of those calls UCO-1 attended a briefing with other police.
UCO-1 attends the accused's premises on 16 November 2010
At about 3.16pm on 16 November 2010, following the visit by Senior Constable Dabin, UCO-1 drove to the accused's premises and had a conversation with her. It is evident from reading the transcript of that conversation that the accused was in an agitated state which, I infer, was a consequence of what she had earlier been told by Senior Constable Dabin.
UCO-1 told the accused that the "cops had just pulled her over" and had questioned her about her association with, and knowledge of, the accused. The accused then told UCO-1 that she had been accused of the deceased's murder. At that point UCO-1 told the accused that she had "spoken to SUPPRESSED". UCO-1 also told the accused that SUPPRESSED.
UCO-1 and the accused travel to SUPPRESSED
The accused and UCO-1 travelled by car from Padstow to SUPPRESSED. As with all of the other conversations between the accused and UCO-1, the conversation which took place between them on the way to SUPPRESSED was recorded and a transcript of that conversation is before me in evidence.
Significantly, that conversation included the following (at T 9):
"UCO-1: Yeah. I think we need SUPPRESSED, Pat, don't you?
Accused: Yeah, but I didn't, I didn't kill Billy." (my emphasis).
Later (at T 15) the accused said:
"They, they're giving me a chance. I didn't kill anyone. Now, they reckon I've killed someone, though, right? Well why did they just leave me there? (my emphasis).
UCO-1: I've got no idea mate. I don't understand how they work. I don't know. I don't have a legal mind. I don't know what that does."
As they reached SUPPRESSED UCO-1 said to the accused:
"We'll ask him. All we can do is ask. SUPPRESSED."
Upon arrival at SUPPRESSED, UCO-1 took the accused to meet UCO-2 in a room which was equipped with a recording device. The subsequent conversation between the accused and UCO-2 was monitored by Detectives Taylor and Stamoulis who were in the adjoining room. The DVD recording of that meeting, and the transcript of what was said, are in evidence before me.
The accused meets with UCO-2 at SUPPRESSED
At the commencement of the conversation with UCO-2, and as the accused sat down, the following was recorded:
"Accused: Oh, this is like the psychologist's chair.
UCO-1: Um, I went around to see Pat - - - UCO-2.
Accused: Yeah.
UCO-1: - - - cause we were going to catch up for a coffee today, right.
UCO-2: Psychologists chair.
Accused: Yeah.
UCO-2: Yeah.
Accused: I go to psychology.
UCO-2: Do they do any good?
Accused: No, no."
The conversation proceeded with UCO-2 speaking to the accused about SUPPRESSED which had previously been the subject of discussion between the accused and UCO-1 (at T 5):
"UCO-2: SUPPRESSED
Accused: Oh, right.
UCO-2: SUPPRESSED
Accused: Ah hmm.
UCO-2: Alright. Alright."
It is appropriate to note at this stage that as he explained it, SUPPRESSED. Notwithstanding the somewhat basic terms in which that was explained, it is evident that the accused, initially at least, fundamentally misunderstood what was being asked of her. In particular, and despite no such request having been made, she apparently understood SUPPRESSED. So much is evident from the following conversation which followed:
"Accused: SUPPRESSED
UCO-2: SUPPRESSED me.
Accused: SUPPRESSED
UCO-2: SUPPRESSED
(INTERFERENCE)
Accused: Oh, got you."
It was not until UCO-2 explained it again that the accused expressed a clear understanding SUPPRESSED
The conversation between the accused and UCO-2 then moved to the subject of the murder of the deceased. UCO-2 explained to the accused that SUPPRESSED
"UCO-2: SUPPRESSED
Accused: SUPPRESSED
UCO-2: SUPPRESSED
Accused: Oh, what.
UCO-2: SUPPRESSED
At that point of the conversation the accused interrupted UCO-2 and stated:
"I didn't kill Billy". (my emphasis)
Following that interjection, UCO-2 continued:
"UCO-2: SUPPRESSED
UCO-2 then SUPPRESSED:
SUPPRESSED
The accused then made reference to various events on the evening of the deceased's death and told UCO-2 (inter alia) that she found the deceased in the bedroom of his premises. Those statements made by the accused were entirely exculpatory. This seemingly prompted UCO-2 to interject and say to the accused:
"UCO-2: SUPPRESSED
SUPPRESSED
At that point the accused interjected and said:
"Billy and I have never hurt each other" (my emphasis)
I should note that the statement made by the accused in [94] is not fully transcribed. The transcript records the words "Billy and I" and then records the word "interference". However, having listened to the recording carefully on a number of occasions, I am satisfied that the words that were said by the accused at that time were as I have recorded them.
At that point, UCO-2 continued:
SUPPRESSED
The accused said:
"Yeah. But what, I didn't stab him" (my emphasis).
UCO-2 continued:
SUPPRESSED
At this point the accused interrupted and said:
"I can't say I stabbed a person when I didn't" (my emphasis).
The conversation then continued with the following exchange:
"UCO-2: Here's the big one, OK. Forgive me for saying this, but dead men tell, tell no lies.
Accused: Hm.
UCO-2: Ok.
Accused: I've heard that story.
UCO-2: SUPPRESSED
Accused: I didn't even know what the - - -
UCO-2: Well anyway, I'll finish. So - - -
Accused: I don't know how many times he was, how many times was he - - -
UCO-2: SUPPRESSED
Accused: Right."
UCO-2 then reiterated to the accused that he required SUPPRESSED
SUPPRESSED
The accused then proceeded to give an account of the events of the evening. She told UCO-2 that the deceased had gone to bed and at that time he was "alright". At that point the following ensued:
"UCO-2: Are you, are you going to tell me that you didn't stab him?
Accused: He went to bed, Billy did go to bed. Can I talk?
UCO-2: Yeah, you can, SUPPRESSED
Accused: Do you want me to talk?
UCO-2: SUPPRESSED
Accused: Billy did go to bed."
The accused then explained that she left the deceased's premises and went to Baston's premises. She then explained what happened when she left:
"Accused: Right. So I went "I'm going home now, ok". I shut door before I go, went on my way out. When I got there he was, he, this was this mmm, mmm, he was crunched on, he was crunched up to here like, may I?
UCO-2: Listen, listen.
Accused: And he's like that.
UCO-2: Yeah.
Accused: So someone - - -
UCO-2: Ok. Now stop there, stop there. SUPPRESSED
Accused: Yeah.
UCO-2: SUPPRESSED
Accused: Yeah.
UCO-2: I like the sound of you, I, I like that you can handle yourself and I like that you're older and, that you trust us, UCO-1 trusts you, all that sort of thing, alright.
Accused: Yeah.
UCO-2: SUPPRESSED
Accused: Right
UCO-2: SUPPRESSED
Accused: Ah hmm
UCO-2: SUPPRESSED
Accused: That's want me to take clothes.
UCO-2: Yeah. So - - -
Accused: I don't want to take clothes - - -
UCO-2: SUPPRESSED
UCO-2 then continued:
"UCO-2: SUPPRESSED
Accused: It was in, in the abdomen they said (my emphasis).
UCO-2: SUPPRESSED
At that point the accused said:
"Ok. We'd had a little bit, alright, little bit of an argument."
When asked by UCO-2 to tell him what she did the accused said:
'Billy, I don't want to do this, its going to kill me to do this, but I've had it'.
At that point the accused demonstrated a blow in a downwards direction with her hands clasped.
The accused then explained how she telephoned 000 and the following exchange took place between her and UCO-2:
Accused: Yeah. He got out.
UCO-2: He got out of bed?
Accused: Yeah.
UCO-2: What, after you stabbed him?
Accused: That's what I'm talking about.
It will be evident from the extracts of the conversation between the accused and UCO-2 set out above that the accused denied, on a number of occasions, killing the deceased. On each of those occasions, SUPPRESSED. He also told her that he did not believe her denials that she had killed the deceased.
UCO-2 SUPPRESSED. For example he said (commencing at T28):
"He's laying in bed, you lay next to him, you've got a knife hidden under your pillow just in case, you're rowing, you're rowing. He turns around and says "Fuck you" grabs the knife and comes at you. You grab it so you're laying here, you grab his hand, look at me. You grab his hand as it comes over you, he's, he's old, he's pissed, he's not real strong. You've, he's got the knife coming down at you like this, stabbing down and you've got, you've got a knife - - -
Accused: Well it wouldn't be the first time he come at me.
UCO-2: Exactly. And then you just go like this.
Accused: Yeah, well - - -
UCO-2: Hear me. You just go like this, woofa, whack, he stops it, he goes away, he drops the knife, you step back, you shit yourself. And you say that, you say 'I panicked, he dropped the knife'. You've curled up in a ball, like you said, so you grab his knife, you grab your knife, cleaned it off, you put them both back in the block and then you rang triple-0. And the reason that you - - -
Accused: I didn't have 2 knives, I only had one.
UCO-2: No, you had one, he has one.
Accused: Oh, I got it"
After further discussion about the scenario put by UCO-2, the following conversation took place (commencing at T31):
"UCO-2: Well, what do you think about that? SUPPRESSED Pretty simple.
Accused: We'd be practising all night"
There was then further discussion between UCO-2 and the accused, SUPPRESSED
UCO-2 gave evidence before me and was cross examined about information he had been given about the accused prior to meeting with her. He was unable to recall whether he had been informed that the accused may be an alcoholic, and was similarly unable to recall whether he had been made aware of the accused having any psychological or psychiatric problems. In this regard, UCO-2 said (at T183 L28):
"I'm may very well have been, but its three years ago, I can't recall"
UCO-2 ultimately appeared to accept (commencing at T183 L33) that he had been given some information about the accused but could not recall any detail of it.
The accused is arrested by police
After a little over one hour of conversation with UCO-2, Detectives Taylor and Stamoulis, along with Constable Pigott, entered the room. The accused was cautioned and then arrested for the murder of the deceased. At that stage, the following conversation took place:
"Accused: Yes, why did you use the bloke - - -want to know why I did it and set me up why?"
Taylor: We'll talk about that back at the Police Station.
Accused: He was telling me to lie, SUPPRESSED - - -How stupid could I have been - - - SUPPRESSED and where did UCO-1 go? (my emphasis)
Taylor: We'll talk about it when we get back."
The accused is taken to the Police Station
The accused was then conveyed to the police station, where Detective Taylor had the following conversation with her:
"Taylor: Patricia, I have just charged you with murder, do you understand that?
Accused: Yeah, I knew that was going to happen.
Taylor: Patricia is (sic) there any questions you wish to ask me at this stage? I know that you have spoken to Detective Sergeant Stamoulis . He informed me that you are unable to get a solicitor at this stage. If you still want to speak to us after you speak to a solicitor we can do that at another time.
Accused: Phil, can you make sure my dogs are ok?
Taylor: That is the least of your problems, do you understand that you have just been charged with the murder of Billy (William) Grant that occurred on or around the 12th February 2009?
Accused: Phil, I know that. I was drunk when I did it, that's what I want to say. I did it when we were drunk.
Taylor: Patricia, as I said we were formally interview you when you receive legal advice if that is what you still want. Is there anything else that you wish to ask me?
Accused: Phil, you and Lauren looked after my dogs when I was in hospital last time, could you please go and see Kay Fowler at 9 School Parade and get the Animal Welfare League to look after my dogs. She will know what to do. Please don't get the RSPCA, just the Animal Welfare League.
Taylor: Patricia, I will see what I can do, I have to go now. Is there anything else that I can do for you?
Accused: Thanks, thank you Phil."
In addition, the accused had a conversation with Detective Stamoulis which was in the following terms:
"Stamoulis: Patricia, do you wish to partake in a record of interview?
Accused: I was drunk when I did it, I don't remember. I want to speak to a lawyer".
The Police attend upon the accused in custody
On 1 March 2011 Detective Taylor in the company of Senior Constable Paff, went to the Metropolitan Remand Centre and spoke with the accused. On that occasion the following conversation took place:
"Taylor: Patricia, we are here today to speak to you in relation to the murder of William Grant. Just after the arrest on 19 November 2010 you indicated that you wanted to speak to a solicitor before speaking to us. Have you spoken to a solicitor?
Accused: Yes and she told me not to say anything.
Taylor: Do you wish to participate in an electronic record of interview?
Accused: I want to talk to you but I've been told by my solicitor not to say anything to you."
There is a large body of medical evidence before me which bears upon the issue of the accused's cognitive impairment and which is necessarily relevant to the question of whether her admissions to police should be excluded, be it on the grounds of impropriety or unfairness.
The majority of the experts who provided reports also gave oral evidence. It is appropriate that I deal with evidence of each of them individually.
Dr Susan Pulman
Dr Pulman, a Clinical and Forensic Neuropsychologist, was requested to carry out a neuropsychological assessment of the accused. She provided a report dated 11 October 2011. The initial recommendation for Dr Pulman's assessment had come from Dr Olav Nielssen, a Forensic Psychiatrist who also provided a report and gave evidence in the proceedings.
Part of the history obtained by Dr Pulman was contained in medical records of the accused's general practitioner and treating psychologists. In this regard Dr Pulman reported:
"A letter from Ms Gallagher's General Practitioner, Dr Odysseas Missiakos dated 21 March 2011 reported that she "suffered from cigarette induced asthma and alcoholism" and epilepsy. To his knowledge, (she) had stopped drinking alcohol in early 2010. At that time, she was referred to a psychologist, Robbie Kordian and commenced antidepressant medication to treat anxiety and depression.
Progress reports from Robbie Kordian document that Ms Gallagher was seen for treatment between February and April 2010 for anger management and anxiety, interpersonal relationship skills, psycho education about alcohol relapse prevention, and alcohol abstinence maintenance. The reports noted that she had made some progress and her mood was stable; however she required further communication problem solving training, and (alcohol) relapse prevention."
Dr Pulman noted that available records from Bankstown Hospital indicated multiple admissions of the accused between 2006 and 2009, and complaints by the accused of depression and intoxication.
Dr Pulman also had access to Justice Health records from 2010. In this regard she reported:
"Justice Health records from 2010 documented ongoing mental health issues on a background of head injury, alcohol related brain damage, asthma and grand mal epilepsy...They also reported (17 and 18 November 2010) a suicide attempt by hanging four weeks earlier. On 18 November 2010 it was reported that Ms Gallagher had impaired cognition including poor memory."
Dr Pulman administered psychometric testing which demonstrated (inter alia) that the accused's overall level of intellectual functioning fell within the extremely low range, with her individual results falling below the first percentile (0.5). These results led Dr Pulman to conclude:
"In summary, Ms Gallagher's performance on tests of executive functioning was well below average. Her verbal and nonverbal abstract reasoning skills were extremely low and borderline respectively. On a conceptual reasoning task her performance was impaired and she was extremely perseverative. Her mental flexibility was also impaired. Verbal fluency for letters and semantic categories was low average and borderline respectively. She showed some disinhibition and perseveration on these tasks. Her copy of a complex geometric figure was impaired, significantly affecting her recall of the figure after a short delay. She demonstrated a very rushed and haphazard approach, despite repeatedly being instructed to slow down and take her time."
Ultimately, Dr Pulman expressed (inter alia) the following opinion:
"On current neuropsychological testing, Ms Gallagher shows vast differences between her verbal and nonverbal abilities. Her nonverbal abilities, which are less affected by cultural and educational factors, suggest that her true intellectual ability is more likely to lie within the borderline range. Her verbal skills are significantly weaker, falling in the extremely low range. This is not unexpected given her poor educational and vocational background; however this discrepancy is considered unusual, possibly supporting her reports of learning difficulties and hearing problems. She also has severely impaired intentional abilities, significant executive dysfunction, including mental flexibility, conceptual and abstract reasoning, planning and organisation, disinhibition and perseveration. Her new learning and memory is also extremely low. Her processing speed, basic language, visuo spatial and visuo constructional skills remain relatively intact. Finally she endorses significantly elevated levels of depression, stress and anxiety at present."
Dr Pulman gave evidence before me which included the following (commencing at T279 L24):
"Q. In relation to Patricia Gallagher, what is your opinion as to the presence of any underlying brain injury which contributes to her condition?
A. When I assessed her in 2011, I saw a pattern, a cognitive profile, which was consistent with a history of both repeated head injuries and the alcohol dependency, alcohol abuse. Alcohol abuse, particularly, given the deficits I observed in her memory, you find the hippocampus, which is an area of the brain which stores memory and is very susceptible to alcohol, you could find shrinkage of that area of the brain or sclerosis of the hippocampus area. And also, if you take the history of seizures on top of that, you are getting a threefold effect of brain injury, epilepsy, alcohol abuse which together would show impairments in memory.
Then the traumatic injuries or the brain injuries would affect the front area of the brain, so we are talking about this area here, compared to the hippocampus, and that is where you find a much slower thought process, and when I interviewed her she was particularly her processing speed you could notice was slow, her thinking was slow. Just in conversation it was at a much reduced speed than what you would say was in the normal range. So both her presentation, from a clinical perspective and from the results of neuropsychological assessment, were consistent with a history of alcohol brain injury and epilepsy.
Q. In relation to alcohol, long-term alcohol abuse can leave damage in the brain itself that is present even when alcohol isn't being consumed. Is that the case?
A. Yes, alcohol dependency is highly variable. When somebody ceases consuming alcohol, some individuals recover very well, others show very limited recovery and others show virtually no recovery at all. It depends upon the individual, their own cognitive resilience and the extent of the alcohol use and, without knowing exactly how much alcohol was consumed over a period of years, it is difficult to say.
...
Q. In her case, there may be indicated from the results some degree of damage to the brain due to years of alcohol abuse, is that right?
A. Yes.
Q. But on any account what is clear is there is significant damage to the frontal lobe area of her brain that is indicated by the results of your testing and other materials you have examined?
A. Yes, and also by the MRI scan which I understand showed white matter changes in the frontal lobe of the brain, ischaemic changes."
Dr Pulman expressed the opinion (commencing at T281 L2) that in 2009 and 2010 (i.e., during the period of the undercover operation in which the accused was meeting with UCO-1) the accused's level of impairment would have been in the vicinity of that which she had outlined in her report. In response to being asked whether the accused's impairments were such as would render her likely to be more easily led by others, Dr Pulman said (commencing at T281 L18):
" When we look at the individual's higher order reasoning, they are less able to think through the options that are available to them when they are making decisions. They are less likely to think ahead of what could happen tomorrow. They are more than likely to think about the here and now. They are much more concrete in their thinking in the sense of not understanding the bigger picture and that was clear in police interviews. You can see at the very beginning of the process the concrete thinking. So having said that, there can be implications, whether that is being easily led, whether it is making easy decisions, whether it is making very disorganised thought processes, there could be a whole presentation around those sorts of reasoning abilities that were different from your typical, average person in the street."
In cross-examination by the Crown, Dr Pulman's attention was drawn to the interviews in which the accused participated, the footage of which Dr Pulman had viewed. In this regard she said (commencing at T283 L5):
"She digressed quite a lot during the DVDs that I watched. She would probably become because she wouldn't have insight into these difficulties, she wouldn't necessarily understand why she was being redirected, because she wouldn't see necessarily she was off topic. So with individuals like that, because of their quite poor insight, they get quite annoyed when you bring them back to topic because they think they are telling you something that is of interest, but it is not really necessarily of interest so when you try to bring them back to topic they can get quite irritated. I have noticed that from my years of experience.
HIS HONOUR
Q. Does the fact they are off topic reflect a lack of understanding of the question put or the topic
A. It can be both but it is they really don't understand the point of the question because she also has very poor verbal abstract reasoning, so she can't understand the concept of what you are trying to get at, won't see the big picture, what is a theoretical or hypothetical question, won't necessarily understand that. So both poor insight and very poor verbal abstract reasoning would, in combination, get many people irritated.
...
Q. Leaving aside the testing, did you detect some impediment and abstract reasoning in your interactions with her?
A. Yes, because you have to be careful of the way you ask questions, you might have to word them slightly differently. They have to be very concrete, don't put too many points within a question, only ask one very clear, straightforward, succinct question like I could have said to her "for the purpose of this interview I know you are Patricia, but for the purpose of what we are doing now we need you to tell me what your name is". So there are different ways you would ask questions that, from my experience you know has that abstract reasoning difficulty. They are not necessarily trying to be difficult; they just don't understand your question.
Q. Did you deliberately simplify the terms in which you conversed with her for that reason?
A. Yes, for the interview I did, but when the testing is conducted, that is standardised and that is not changed. "
Dr Olav Nielssen
Dr Nielssen provided a report of 30 September 2011 following his examination of the accused. For the purposes of providing that report, Dr Nielssen had also viewed the DVD recordings of the interviews conducted by police with the accused. He described the answers given by the accused to questions asked of her on those occasions as "disorganised and digressive".
Following his examination of the accused's mental state, Dr Nielssen reported (at page 5):
"Her speech was quite disorganised and difficult to follow and she seemed to have trouble finding words and also in keeping to the topic of conversation, in a way that was consistent with damage to the frontal lobe of the brain. She denied ever experiencing symptoms of psychotic illness and no delusional believes (sic) were elicited, including any apparently delusional beliefs involving Mr Grant.
Her attention and concentration were quite impaired as she was easily distracted and wandered from the point."
Dr Nielssen diagnosed:
(1) an alcohol dependence and abuse disorder;
(2) a brain injury, both traumatic and alcohol related; and
(3) epilepsy.
His ultimate opinion included the following (at page 6):
"The pattern of intellectual impairment was consistent with damage to the frontal lobes of the brain which influences planning, emotional regulation, social judgment and impulse control. At the time of the ERISP and during the recent interview Ms Gallagher was inappropriately cheerful, emotionally labile, and was disorganised in her speech in a way that was consistent with frontal lobe injury...Ms Gallagher was not thought to have a mental illness of a kind that might leave open the defence of mental illness. However, traumatic brain injury is an underlying condition that is likely to have resulted in impairment in Ms Gallagher's ability to control her actions, notwithstanding the effects of intoxication with alcohol, because her intoxication with alcohol would exacerbate the effects of her underlying brain injury."
When called to give evidence, Dr Nielssen was asked to comment upon any particular aspects of the accused's mental state which he considered might render it more difficult for her to deal with official questioning. He said (commencing at T297 L29):
" Well, I mean, having her brain injury or brain damage would make it more difficult to understand questions, to understand the thrust of questions, if you like, in an abstract way, possibly even recognising the exact significance of being questioned, but I will just make one other observation from her treating team was that Ms Gallagher has a propensity to confabulate, which is to fill in gaps in memory with made up information, which is very characteristic of people who have alcohol related dementia. Hence her answers might be quite unreliable"
In cross-examination by the Crown, Dr Nielssen described (at T 298 line 19) the history provided by the accused as "very scattered" such that the impairment in her cognitive function was "obvious". He then gave the following further evidence in the course of cross examination by the Crown (commencing at T298 L25):
"Q. When my learned friend was asking you questions you indicated that the most prominent symptom that you observed in the course of your examination of Ms Gallagher was her communication disorder, is that correct?
A. Yes.
Q. By that, communication disorder, can I take it that it means that her speech can be quite disorganised?
A. That's correct, not finishing a sentence.
Q. She has trouble finding words?
A. That's right, using odd words, and I have given a couple of quotes of odd usages.
Q. Did she find it difficult keeping on topic?
A. Definitely.
Q. She has difficulties with attention concentration which impacts on that ability to communicate?
A. Yes.
Q. That is very different to the ability to understand and appreciate what one is being asked, isn't it?
A. Yes, although it is difficult to pursue a person's clear understanding if they are not keeping on the topic and confirming that they understood what you asked them but, yes, maybe her receptive language might have been a little better than her expressive language.
Q. You told my friend in his evidence that alcohol exacerbates the symptoms that she displays as a consequence of this underlying disorder you found, is that right?
A. Yes.
Q. If she were to be questioned at a time when she hasn't been consuming alcohol, the symptoms would not manifest themselves to the degree they would if she had been consuming alcohol?
A. Yes.
Q. Therefore, her ability to communicate might be better, her ability to understand and appreciate what is being asked would be more acute?
A. Than when affected by alcohol, yes."
Dr John McMahon
A report of Dr John McMahon, Clinical Psychologist, dated 30 March 2012 was tendered by the Crown, although Dr McMahon did not give oral evidence in the proceedings. Dr McMahon had been asked by the Director of Public Prosecutions to undertake a neuropsychological assessment of the accused. He conducted that assessment over a period of two days and diagnosed:
(1) dementia;
(2) an alcohol dependence disorder;
(3) a sedative dependence disorder;
(4) dependent and avoidant traits;
(5) epilepsy; and
(6) a brain injury.
Dr Stephen Allnutt
Dr Stephen Allnutt, Forensic Psychiatrist, provided three reports at the request of the Director of Public Prosecutions. The first of those reports was dated 1 March 2012 in which (in the context of expressing an opinion as to the fitness of the accused to stand trial) Dr Allnutt said:
"...(she) seemed to become quite easily confused, suggesting she has learning difficulties; this became more apparent near the end of the interview when she seemed to have difficulty in understanding the consequences of a finding of guilty or not guilty requiring some degree of clarification on my part; while she appeared to understand this I have concerns about probable underlying cognitive impairments that would impact on her capacity to follow proceedings and thus engage adequately and qualitatively with counsel during the course of the trial."
On 13 April 2012 Dr Allnutt provided a further report having had the benefit of reading that of Dr McMahon to which I previously referred. He noted that the contents of the report of Dr McMahon were consistent with the conclusions he had reached, and reaffirmed his opinion that the accused was unfit to stand trial.
On 19 June 2013 Dr Allnutt provided a further report in which he recorded (inter alia) the following:
"She believed that around the time of the alleged offending that she was taking Dilantin and Tegretol prescribed by her general practitioner; she said had been taking this medication since age 18 since, she was hit by a truck and developed epilepsy; she stated that alcohol sometimes would trigger seizures; she estimated these occurring "twice in a blue moon" and described seizures consistent with grand mal; her last episode of seizure before the alleged offending was about 12 months at Christmas time while in the shopping centre but said she could not be sure about this.
She was also taking valium and serapax (both Benzodiazepines) which she was getting from friends at the time; by the time of the index incident she was taking about four tablets of between 10 and 20mg of valium as well as serapax two tablets a day; sometimes she was only taking valium and on other occasions she would take a combination of valium and serapax; she would take this medication in addition to Dilantin and Tegretol; she said that she had been taking the Benzodiazepines for about one year; she said when she took the combination of the Benzodiazepines and the anti-epileptic medication she would have "not a care in the world".
Dr Allnutt also had access to the DVD footage of the accused's interviews with police. He described the accused in those interviews as having "demonstrated persistent cognitive difficulties in the absence of substances".
Dr Allnutt's ultimate opinion included (inter alia) the following (at page 8 of his report):
"In my opinion the defendant likely manifests underlying cognitive impairment secondary to chronic alcohol abuse, recurrent head injury with associated grand mal epilepsy; this has been demonstrated to be consistent with dementia on neuropsychological testing."
When called to give evidence, Dr Allnutt said (commencing at T265 L17) that there was evidence of disorganisation in the accused's thought processes, leading to a diminution in her capacity to comprehend. He went on to explain (at T265 L36 and following) that although he was able to interact with the accused, her answers to questions were not always appropriate, leading to the quality of such interaction being (as Dr Allnutt described at it) "somewhat disorganised".
When asked whether the inappropriate nature of some of her responses to questions asked of her may have been reflective of a lack of understanding of the questions asked, Dr Allnutt said (at T266 L4):
" I don't think it was necessarily the lack of understanding of the questions asked, no. I think look, my memory doesn't give me that impression, my impression is that her responses however, in other words the way she formed her responses to me was pathological and indicative of disorganised thought processes but she probably had capacity to understand questions and I note she was able to be redirected in the interview so that would indicate the capacity to understand the questions."
Dr Allnutt went on to express the view (commencing at T267 L25) that the accused's diminution in cognitive ability was evident upon objective observation. When asked whether there was evidence of disorganised thought processes he said (at T267 L29):
"I thought disorganised thought processes and that seems to be consistent, it is not just my subjective view, it was an impression I had when I saw her, which is why we found her unfit. Two neuropsychologists tested her to show she had underlying condition. If you have cognitive problems in brain damage, alcohol and substances can compound that. That was my reasoning in this case".
Dr Allnutt confirmed that there was evidence of damage to the frontal lobe area of the accused's brain which he thought could be consistent with head injuries and a history of substance abuse, including alcohol abuse. He agreed that on the assumption that Dr Pulman's test results and opinions were accurate, a person with that level of disability could be more easily led, or could have a propensity to be more easily led, than those who did not similarly suffer, although he added that this was not the impression that he formed in the present case. In re-examination, when confirming the existence of brain damage, Dr Allnutt said (at T274 L11 and following):
"Let me just say my conclusion of brain damage is based on the neuropsychological assessment, and to the extent to which that is accurate and valid, that would then indicate organic brain damage in broad terms, it means biological damage to brain function and structure."
The relevant statutory provisions
Counsel for the accused relied upon two statutory provisions in support of his application that the accused's admissions be excluded. The first was s. 138 of the EA which provides as follows:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The second was s. 90 of the EA which provides as follows:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
I will deal with each of these provisions, and the submissions made by the parties in relation to them, separately.
The submissions of the parties - exclusion under s. 138
Mr Austin submitted that I would be satisfied that there had been impropriety on the part of the police in obtaining the accused's admissions and that, having reached that conclusion, I would further conclude that the various factors in s. 138(3) of the EA weighed in favour of the exclusion of the evidence. He submitted that for the purposes of determining whether the evidence ought be excluded (be it pursuant to s. 90 or s. 138) there were no differentiating factors between the accused's admissions to UCO-2 and those subsequently made to Detectives Taylor and Stamboulis, such that they should, in effect, be treated together.
In terms of impropriety, Mr Austin submitted that I would conclude that the police were aware from an early stage of the investigation that the accused suffered from some form of intellectual impairment. He submitted that the relevant impropriety stemmed from the fact that, seized of such knowledge, the police implemented, and persevered with, an undercover operation, in circumstances where they gave no, or no proper, consideration to the accused's mental state.
As I understood it, Mr Austin submitted that the impropriety became more significant as the operation progressed. This submission was put on the basis that as UCO-1's interaction with the accused increased over time, the police necessarily had an increasingly greater awareness and appreciation of the accused's impaired intellectual capacity. The thrust of Mr Austin's submission was that in these circumstances the police should have terminated the undercover operation.
Mr Austin argued that impropriety on the part of the police was further demonstrated by the nature of the interrogation to which she was subjected by UCO-2 at SUPPRESSED. In developing this argument, Mr Austin submitted that it must have been evident to police by that time that the accused suffered from some form of mental disability, yet she was subjected to what he described as a "process of interrogation" in which she was unreasonably pressured to confess to the deceased's murder. He pointed out that in the course of such a process, the accused had steadfastly denied to UCO-2 (as well as to UCO-1 on the way to the SUPPRESSED) that she was responsible for the deceased's murder. He pointed out that in response to those denials, UCO-2 threatened to withdraw (inter alia) SUPPRESSED and repeatedly urged her to tell the truth. In this regard, Mr Austin called in aid the provisions of s. 85 of the EA. Although he did not suggest that those provisions were directly applicable to the present case, he submitted that the accused's mental state was illustrative of the vulnerability to which that section was directed.
Dr Matthew Orde, a Forensic Pathologist, provided two reports which were tendered by the Crown. In the second of those reports Dr Orde stated (inter alia) the following:
"[7] In light of both the initial autopsy findings and the information provided by Dr Theivendran, it appears that the deceased sustained a single stab wound to the epigastric region (upper front part) of his abdomen, with associated injury to his liver, duodenum and inferior vena cava.
[8] Whilst the internal injuries would undoubtedly have bled profusely, there appears to be no significant arterial injury which would have resulted in haemorrhage under pressure.
[9] In my opinion it is entirely possible that the great majority of the haemorrhage stemming from these internal injuries could have been retained within the abdominal cavity. Given the position of the stab wound through the abdominal wall, if the deceased had been positioned lying on his back, then this would seem more likely. There would of course have been at least some bleeding from the skin wound, though it is possible that this may have been relatively minor, and may well have also partly have been absorbed into the fabric of clothing which the deceased had been wearing.
[10] Conversely, it is of course also possible that there may have been significant external loss of blood from the stab wound to his abdomen, and any such bleeding is likely to have been enhanced by movement of the deceased away from a supine recumbent position".
In an addendum to his reports dated 18 June 2013, Dr Orde stated that in his opinion the nature and location of the stab wound sustained by the deceased did not preclude a conclusion that the wound was self inflicted.
Finally, and as I have previously indicated, the Crown tendered the recordings, and accompanying transcripts, of the accused's two interviews with police. Neither party addressed me to any real degree upon the contents of those interviews, although the Crown did place some reliance upon the accused's admissions that she was responsible for making the calls from the deceased's landline at 23.22.55 and 23.30.49 (to Channel 7) and at 23.30.49 (to the Bushfire Appeal Hotline).
The elements of the offence of murder
In order to establish that the accused murdered the deceased, the Crown must establish beyond reasonable doubt:
(i) that the deceased died on the morning of 12 February 2009;
(ii) that the accused did an act, namely the act of stabbing, which caused the death of the deceased; and
(iii) that the act of the accused which caused the death of the deceased was done by the accused either;
(a) with the intention to kill the deceased; or
(b) with the intention to inflict really serious bodily injury upon the deceased.
There is no issue that the deceased died on the morning of 12 February 2009 as the result of a single stab wound to the abdomen which severed his thoracic aorta. The real issue in the present case is whether the evidence is sufficient to establish, beyond reasonable doubt, that it was the act of the accused which caused the deceased's death. If I am not so satisfied, I must find the accused not guilty of the deceased's murder. If, on the other hand, I am satisfied that it was the accused who stabbed the deceased, I must then proceed to consider a number of alternative issues including the question of the deceased's intention and, depending on the resolution of that issue, whether or not the deceased should be found guilty of the alternative count of manslaughter. Further, and depending on what view is reached in relation to some or all of those issues, I am required to give consideration to the issue of whether or not the accused was substantially impaired at the time.
The submissions of the parties
Both the Crown and counsel for the accused structured their submissions around the principle question that I have identified.
The Crown emphasised that in case dependent on circumstantial evidence, it was necessary for me to consider the entirety of the evidence, and not approach my evaluation of it in a piecemeal way by reference to individual aspects of it. The Crown's submissions touched upon a number of aspects of the evidence of events which took place on 11 and 12 February. Whilst those submissions were not structured in a chronological sequence, the position advanced by the Crown may be better understood if I summarise the submissions in that way.
In terms of the evidence of Jones the Crown referred, in particular, to his evidence that he had observed the accused and the deceased, "muttering their differences" during the early afternoon of 11 February. In particular, the Crown relied on Jones' evidence that he had heard the accused say to the deceased "I'll kill you if you get back on the wine". Even allowing for the evidence of Jones that in his observation, statements and behaviour of that nature were perhaps not atypical of the relationship between the accused and the deceased, the Crown submitted that such evidence served to paint something of a background picture, against which the evidence of the subsequent events of the day ought be assessed.
The Crown also submitted that the evidence of Jones established the accused's state of mind at that time. The Crown argued that this evidence was generally consistent with the tendency evidence to which I previously referred. The Crown submitted that such evidence established that the accused was, generally speaking, a person prone to violence.
The Crown also relied upon the evidence of the telephone calls to which I have previously referred. The Crown submitted that the evidence established that the accused was present at the deceased's premises at 9.21.16 on the evening of 11 February 2009, when a call was made to 000 for the purposes of the accused complaining about Jones. It was submitted that having regard to the statements made by the accused in the second of her interviews, and having regard to the nature of the complaint which was made at the time, I would be satisfied beyond reasonable doubt that it was the accused who made that telephone call and that I would thus be satisfied that she was at the deceased's premises at that time. The deceased was obviously alive at that time.
The Crown submitted that I would be satisfied on the evidence that when the police arrived at the deceased's premises shortly after 8.50 pm on the evening of 11 February, the demeanour of the accused was consistent with her having an aggressive state of mind. This, he submitted, was consistent with her engaging in an aggressive act of killing the deceased some hours later.
The Crown also relied upon the evidence that the deceased had intervened and told the accused to (inter alia) "calm down" when the police were at the premises during the evening of 11 February. The Crown's submission, as I understood it, was that there was an inference available that the accused's subsequent act of stabbing the deceased was a reaction to the deceased's earlier intervention. In this context the Crown also relied upon the tendency evidence to which I have previously referred.
The Crown submitted that I would be satisfied that the accused was at the deceased's premises at 23.22.55 and 23.26.19 (at which time calls were made to Channel Seven), at 23.30.49 (at which time a call was made to a bushfire appeal) and again at 00.28.39 (at which time the accused called triple 0 advising that the deceased was bleeding).
The Crown also relied upon the telephone contact between the accused and Norman Fetch which I have earlier set out. The Crown submitted that I would be satisfied that each of the calls made from the landline of the deceased's premises, firstly to the landline of Hilda Fetch and secondly to the mobile service of Norman Fetch, were made by the accused. The Crown submitted that, if such a conclusion were reached, that evidence sustained the inference that the accused was in the deceased's premises at the time of the making of each of those calls.
The Crown also addressed me in relation to the evidence of fingerprints. He submitted that such evidence established that there was a fingerprint of the deceased present near the front door, along with two fingerprints of a Mr Finlay, who had been identified as a locksmith who had worked on the door some days before. The Crown pointed out that there was no identified fingerprint of any other person at or around the front door. He submitted that this tended against the proposition that some other person had entered the deceased's premises after the accused had left to go to the premises of Baston. However, the Crown candidly conceded that such a submission was deserving of limited weight, and specifically stated that he did not "put that submission highly".
In respect of the evidence of Dr Orde, the Crown submitted that the fact that the accused was not found to have any blood on her clothes did not exculpate her in view of the opinion of Dr Orde that the haemorrhage suffered by the deceased would have been confined within the abdominal cavity.
The Crown further submitted that I would find that whomever was responsible for stabbing the deceased had cleaned the knife and the knife block which were the subject of examination by the police. In this regard, the Crown pointed, in particular, to the bloodstain which was found on the kitchen floor of the premises which, he submitted, I would find was the blood of the deceased. He submitted that this evidence was consistent with the person responsible going to the kitchen to return the knife, observing the blood on the floor and then cleaning the knife and the block. In these respects the Crown also relied upon the fact that a swab taken from the blade of the knife did not reveal the presence of blood.
The Crown identified two competing hypotheses concerning the circumstances of the deceased's death. The first was that the deceased had harmed himself. The Crown invited me to reject that hypothesis, principally on the basis of the same evidence as that which was relied upon in support of the earlier argument that the accused had told lies about how the deceased was harmed. He also submitted that the evidence of the bloodstain on the kitchen floor, and what he submitted was the cleaning of the knife, was inconsistent with such a hypothesis.
The second was that an unknown person had entered the deceased's premises and stabbed him, in circumstances where the accused had left the front door of the premises open. The Crown submitted that this was not a reasonable hypothesis because there was no evidence of any identified person having a motive to harm the deceased in any way.
The fundamental proposition advanced by Mr Austin on behalf of the accused was that when the evidence was viewed as a whole it established little more than the fact that the accused had an opportunity to kill the deceased. He submitted that the evidence fell short of being sufficient to establish, beyond reasonable doubt, that the accused had in fact done so.
Mr Austin took me to the evidence of the relationship between the accused and the deceased and, in particular, the evidence of Jones as to his observations of the two of them during the course of 11 February 2009. Mr Austin submitted that the conclusion to be reached on the basis of that evidence was that interactions between the accused and the deceased of which Jones gave evidence were a normal incident of their relationship and that the accused's expressions to the effect of "I'll kill you" were not said with an intention to carry out such a threat, and were not (and were not intended to be) expressions of aggression or violence. To the extent that the accused had told the deceased that she would "kill him" if he did not stop drinking wine, Mr Austin submitted essentially submitted that expressions of that nature were often said by people, be it out of frustration or otherwise, and without any accompanying intention to ever carry out such a threat. It should be noted that the Crown, when taking me to that evidence, conceded that it was "not a piece of evidence ..... which one would place great weight on".
Mr Austin submitted that the evidence did not support the conclusion that the knife, or the knife block, had in fact been cleaned. He pointed out that the evidence of the results of the presumptive test were equivocal, that there was no evidence of the age of the blood stain (if it was, in fact, a human blood stain) that was found on the knife, and that there was similarly no evidence of the age of the bloodstain found on the floor.
Mr Austin did not argue against a finding that the accused was in an agitated state when the police attended the deceased's premises at 8.51 pm following her complaint about Jones. However, he submitted that even if that were the case, it did not follow that she was similarly agitated three hours later and that she stabbed the deceased in that frame of mind. In this regard Mr Austin pointed out that the accused's agitation at that earlier time was directed towards Jones, not the deceased. Although there is evidence that the deceased told the accused at that time to "calm down", Mr Austin submitted that this intervention was not of a kind which would have provided some catalyst for the accused to want to harm the deceased several hours later.
Mr Austin also relied on the fact that there was nothing in the evidence of the statements made by the deceased which was in any way inculpatory of the accused. He also pointed out, that the deceased was asked on more than one occasion what happened and he repeatedly replied to the effect "I don't know".
In these circumstances, Mr Austin submitted that the entirety of the evidence established nothing more than the fact that the accused had the opportunity to kill the deceased. He submitted that neither of the competing scenarios could be excluded as a possibility and that the Crown had failed to establish, beyond reasonable doubt, that it was the act of the accused which killed the deceased.
CONSIDERATION AND CONCLUSION
General principles
Both the Crown and counsel for the accused made reference, in the course of their submissions, to the fact that the Crown case was entirely circumstantial. As the tribunal of fact, it is necessary for me to consider and weigh all of the circumstances established by the evidence in deciding whether there is an inference consistent with innocence open on that evidence (see generally R v Hillier (2007) 228 CLR 618 at 637 per Gummow, Hayne and Crennan JJ).
It is also important to recognise that often in a case based upon circumstantial evidence there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. However, a circumstantial case is not to be considered in a piecemeal fashion. Consideration must be given to the weight which is to be ascribed to the united force of all of the circumstances put together (Hillier (supra) at 638 citing R v Chamberlain [No. 2] (1984) 153 CLR 521). At the conclusion of such a consideration, the guilt of the accused should not be simply a rational inference. It should be the only rational inference that is able to be drawn in all of the circumstances (see generally Shepherd v R (1990) 170 CLR 573). The accused is presumed innocent until her guilt is proved beyond reasonable doubt, such a standard being an exacting one (see Douglass v R (2012) 290 ALR 699 at [47]).
What circumstances are established by the evidence?
The accused and the deceased had known one another for some time. Whilst the precise nature of that relationship is not completely clear, I am satisfied that it was characterised by arguments taking place between them, in the course of which the accused had threatened to kill the deceased. However I am not satisfied that those threats, when made, were accompanied by an intention on the part of the accused to in fact kill the deceased.
Both the accused and the deceased were prone to drinking excessive amounts of alcohol. The evidence also establishes that the accused was prone to acting aggressively, particularly when she had been drinking. Mr Swan gave evidence of one occasion on which he saw the accused be violent towards the deceased, although that is the only evidence of such an incident having taken place.
I am satisfied that during the course of 11 February 2009 the accused went to Baston's premises and had left two shopping bags there. She had also been present in the vicinity of the unit block when the deceased and Jones were moving a refrigerator in the course of which she had told the deceased, in Jones' presence, that she would "kill (him) if (he) did not get off the wine". That, I am satisfied, was not atypical of statements which the accused would make towards the deceased from time to time. However, there is no evidence that the statement was accompanied by any overt display of aggression on the part of the accused, and there is no evidence of anything else about her demeanour on that occasion which would support a conclusion that she intended to put her threat into effect.
I am satisfied that the accused called 000 from the deceased's premises at 19.21.16 on 11 February 2009 in order to complain about the alleged indecent assault by Jones. I am satisfied that the when the police arrived at about 8.50 pm that evening, the accused was well affected by alcohol, that she was confused, and that she was exhibiting a mood which fluctuated between being calm and aggressive. There is no evidence that there had been any act on the part of the deceased which might have caused the accused's aggressive frame of mind. To the extent that the accused was aggressive at that time, the evidence supports the conclusion that her aggression was directed towards Jones, not the deceased.
I am satisfied that in the course of the accused making her complaint to the police at that time, the deceased intervened and urged the accused to (inter alia) "calm down". However, there is nothing to suggest that the deceased did so in an aggressive fashion. On the contrary, I accept the evidence of Constable Cross that the deceased intervened in a fashion which was "tolerant and understanding". In these circumstances I do not accept the submission advanced by the Crown that the deceased's intervention on that occasion somehow provided a reason or motive for the accused to be aggressive towards the deceased and kill him some hours later. There is nothing in the evidence which would suggest that there was any particular behaviour on the part of the deceased at any time during the course of 11 February 2009, or at any other relevant time, which might have provided some motive to the accused to want to kill him.
The evidence establishes that the police spoke to Jones following the accused's complaint at 9.30 pm. The time at which they left the deceased's premises is not clear but in circumstances where Jones' premises were in the same unit block, I am satisfied that it was some time shortly before 9.30 pm. The accused and the deceased were present in the deceased's premises when the police left.
The evidence establishes that between 9.30 pm and 11.30 pm, a total of three calls were made from the deceased's landline to the landline of the premises of Hilda Fetch, who was the mother of Norman Fetch. Norman Fetch had known both the deceased and the accused for a considerable period of time. However, he had had greater contact in recent years with the accused, having been in a relationship with her for a short of period of time some 12 months prior to the deceased's death.
In these circumstances, bearing in mind the other evidence of telephone contact between the accused and Mr Fetch on or about the day of the deceased's death, and notwithstanding Mr Fetch's inability to recall any detail whatsoever of calls which were recorded as having been made to or by him, I am satisfied that all of the calls which were recorded as having been made from the deceased's premises to those of Mrs Fetch were made by the accused. It follows that I am satisfied that the accused was present at the deceased's premises at the times of those calls being made.
In particular, I am satisfied that the calls made to Mrs Fetch's premises on the evening of 11 February 2009 at 22.47.00, 22.52.40 and 22.53.26 were made by the accused and that the respective durations of those calls were 46 seconds, 18 seconds and 201 seconds respectively. Mr Fetch could remember nothing about these calls, or indeed any of the calls which were made to his mother's landline or his own mobile service. I am satisfied that his inability to do so is attributable to his alcoholism. Accepting that he spoke with the accused on those various occasions, there is no direct evidence, nor is there any other evidence which would support an inference, as to what was discussed on any of those occasions. The only possible exception to that is the call made from the deceased's premises to those of Mrs Fetch at 12.27 am to which I have referred below.
I am satisfied that the accused made two calls to Channel 7 at 23.22.55 and 23.26.19, and that she made a further call to the "Bushfire Appeal Hotline" at 23.30.49. The duration of the last of those calls was 54 seconds. In these circumstances, I am satisfied that the accused was present at the deceased's premises at least until just after 11.31 pm on 11 February 2009.
The accused subsequently went to Baston's premises and collected the two shopping bags which she had left there earlier in the day. The evidence does not enable me to be precise about the time at which she left the deceased's premises to go to Baston's. However, in light of Baston's evidence that the accused did not attend his premises in the course of a particular television program which had started at 11.50 pm, I am satisfied that it was some time prior to that. I am also satisfied that the accused left Baston's premises walking in a direction opposite to that of the premises of the deceased, having told Baston that she was tired and that she was going home.
There is evidence of a call having been made at 00.10.00 from the deceased's premises to the landline of the accused, the duration of which was 54 seconds. Neither party addressed me in relation to what inferences were available to be drawn from the fact of that call having been made. However, in light of Baston's evidence about what the accused told him when leaving his premises, I am satisfied that the accused, having left the deceased's premises, returned home and was in fact at her own premises when the call was made from the deceased's premises in the early hours of the morning of 11 February 2009, and that it was the deceased who called her on that occasion. The evidence does not permit a finding as to what was discussed on that occasion.
The evidence establishes that a call was made from the deceased's premises to those of Hilda Fetch at 00.27.49. The duration of that call was 25 seconds. For the reasons previously outlined I am satisfied that the accused made that call. There is again no direct evidence of what may have been discussed in the course of that call. However, the call to 000 which was made by the accused followed immediately after at 00:28:39. In the second of her two interviews with police, the accused made reference to Mr Fetch having previously been a paramedic. Irrespective of whether or not this was in fact the case, that evidence, along with the proximity of the two calls, supports the inference that the accused was ringing Mr Fetch to obtain his assistance in respect of the reporting of the deceased's injury.
The Crown opened its case on the basis that the accused killed the deceased at one of two times. The first was at some time prior to leaving the deceased's premises to go to those of Baston. As I have indicated, the time at which she left to go to Baston's premises it not clear but I am satisfied that it was between about 11.30 pm and 11.50 pm on the evening of 11 February. Alternatively, the Crown put that the accused killed the deceased after she had returned to his premises in the early hours of the morning of 12 February. Whilst I am satisfied that the accused was back at the deceased's premises at 12.27 am on 12 February (when she made the call to Mr Fetch) I am not able to determine the time at which she arrived there.
I have already made reference to the evidence that a call was made from the deceased's premises to those of the accused at 12.10 am on the morning of 12 February which lasted 54 seconds. I am satisfied that the deceased was at her home at that time.
Other than being at her home at 12.10 am, the evidence does not establish the whereabouts of the deceased between some time after 11.30 pm on 11 February, and shortly prior to 12.27 am on 12 February. Importantly, there is no evidence which places her at the premises of the deceased with that period. Depending upon what time she left to go to Baston's premises, that period could be almost one hour.
When the ambulance arrived at the deceased's premises following the 000 call by the accused, she was observed to be in an agitated state. She repeatedly stated that she did not know what had happened. The deceased made numerous statements to the same effect. Other than submitting that some of the statements of the accused were lies, the Crown did not suggest that anything said by the accused (or for that matter by the deceased) on that occasion pointed towards the accused being responsible for the deceased's stabbing.
The Crown relied upon the scientific evidence to establish (inter alia) that there was blood on the knife found in the kitchen of the deceased's premises. At its highest, the evidence establishes that a presumptive test indicated the possible presence of blood on the knife. However, no confirmatory test was conducted. It is also clear that the results of the presumptive test may have constituted a reaction to the presence of something other than blood. Even if it were accepted that the substance on the knife was blood, the evidence is that the presumptive test does not distinguish between the blood of a human, and that of an animal. Moreover, there is no evidence of its age.
Crown submitted that there was an available inference that the person responsible for stabbing the deceased had gone to return the knife to the block, noticed the blood on the knife, turned around to the sink and washed the knife, and then returned it to the block. The Crown submitted that this would explain the presence of what was found to be the deceased's blood on the kitchen floor, the submission being that the blood on the floor had dripped from the blade of the knife. The Crown also submitted that such an inference was supported by the fact that a swab taken of the knife blade was negative flor blood, along with the fact that a presumptive test of a sample of red/brown matter taken from beneath the handle was consistent with blood.
I am satisfied that the blood stain found on the floor of the kitchen was that of the deceased. However, there is no evidence of its age. It is in my view entirely possible that it was deposited onto the floor in circumstances other than dripping from the blade of the knife after the deceased was stabbed.
Moreover, the fact that a swab taken from the knife blade was negative for the presence of blood does not, either alone or in combination with the other matters upon which the Crown relied, establish that the knife had been cleaned of blood and placed back in the knife block. This is particularly so in circumstances where the evidence falls short of establishing that the remaining substance which was scraped from beneath the handle of the knife was even blood, let alone the blood of the deceased. In the circumstances, I am unable to accept the submission of the Crown that the evidence sustains an inference that the knife was cleaned.
There is evidence that in the opinion of Dr Orde, the mechanism of the deceased's injury does not preclude a finding that it was self inflicted. Notwithstanding that evidence, a conclusion that the deceased harmed himself on this occasion is not, in my view, reasonably open on the evidence. Quite apart from the fact that the deceased repeatedly denied that suggestion, there is evidence from his sister and brother in law that when they saw him only two months prior to his death, the deceased was in a generally positive frame of mind, notwithstanding that he had been diagnosed with cancer and was undergoing a course of Chemotherapy. There was certainly nothing in the deceased's demeanour at that time which was consistent with an intention to harm himself.
The evidence of Dr Missiakos did include reference to the fact that on 10 February 2009, i.e. only 2 days prior to his death, the deceased had said that if the cancer was found to have spread he "could not live with the idea". However, even allowing for the proximity between that statement and his death, there is no evidence that the deceased was provided with any information in the intervening two day period which suggested to him that the disease had spread, and which might have caused himself to take his own life.
There was, as I have pointed out, a period in respect of which the evidence of the deceased's movements is largely silent, and within which there is no evidence to place her at the accused's premises. For the reasons previously advanced, I am satisfied on the evidence that the accused was at her home during at least some of that period.
Neither the Crown nor counsel for the accused sought to place any significant reliance upon anything said by the accused in the course of her two interviews with the police. The reasons for that will be self evident from the matters I have previously discussed. In the second of those interviews the accused told police that when she left to collect her bags from Baston's premises she left the door of the deceased's premises unlocked. If it was the case that the door was left unlocked it would explain how an unknown person could have gained access to the deceased's premises and stabbed him. However, even if the deceased's assertion about leaving the door open was wrong, the possibility of some unknown person entering the premises cannot, in my view, be excluded. It is entirely possible, for example, that the deceased could have answered a knock at the door and opened it.
The principal submission put by the Crown against the possibility of another person entering the deceased's premises and stabbing him was that there was no evidence that any other person had a motive to want to harm the deceased. The difficulty with that submission is that the Crown did not point to any evidence of motive on the part of the accused, but relied upon her tendency to act aggressively. I accept that the accused had that tendency, but that is not evidence of motive. The only other matter to which the Crown pointed in this respect was the evidence of the deceased's intervention when the police attended his premises at about 8.50 pm on 11 February, when he told the accused to (inter alia) "calm down". For the reasons I have already outlined, the evidence of the deceased's intervention, delivered as it was in an apparently caring fashion, does not provide evidence of a motive on the part of the accused to want to harm the deceased several hours later. In fact in my view, it tends wholly against this suggestion.
It is the Crown case that the accused stabbed the deceased either before she left the deceased's premises to go to Baston's premises late on the evening of 11 February, or alternatively after she returned to the deceased's premises on the morning of 12 February. There is no medical or other evidence which might assist in establishing the time at which the deceased was stabbed. It must be accepted that the accused had the opportunity to kill the deceased either before she left the deceased's premises, or once she had returned.
At the same time, there is a period approaching one hour during which the evidence does not place the accused at the deceased's premises. At one point within that time, I am satisfied that she was at home. The possibility that an unknown person stabbed the deceased within that time, and that the accused later found him bleeding cannot, in my view, be excluded. Evidence of opportunity is not sufficient to establish that the accused stabbed the deceased, and no amount of suspicion can substitute for proof beyond reasonable doubt.
In these circumstances I am not satisfied that the evidence establishes that the accused was responsible for the act which caused the death of the deceased.
Accordingly, and for these reasons, I find the accused not guilty of the murder of William Grant on 12 February 2009. It follows that I also find the accused not guilty of the manslaughter of William Grant on 12 February 2009.
ORDERS
I make the following orders:
(i) I find the accused not guilty of the murder of William Grant on 12 February 2009;
(ii) I find the accused not guilty of the manslaughter of William Grant on 12 February 2009;
(iii) I enter verdicts of acquittal in respect of both matters.
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Decision last updated: 23 August 2013
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