R v H, LP
[2013] SASC 183
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, LP
Criminal Trial by Judge Alone
[2013] SASC 183
Reasons for the Verdict of The Honourable Justice David
22 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ACTS INTENDED TO CAUSE DANGER TO LIFE
Criminal trial by judge alone – accused charged with murder – accused charged with two counts of attempted murder and, in the alternative, two counts of aggravated endangering life - accused pleaded not guilty to all counts on grounds of intoxication – application of s 268 Criminal Law Consolidation Act 1935 (SA) – whether intention to cause death or grievous bodily harm.
Held: accused guilty of one count of murder and two counts of attempted murder – prosecution proved beyond reasonable doubt that the accused formed intention to kill.
Criminal Law Consolidation Act 1935 (SA) s 268, s 269, referred to.
R v H, LP
[2013] SASC 183Criminal: Trial by Judge Alone
DAVID J: The accused is charged on Information with one count of murder and two counts of attempted murder with the alternative counts of aggravated endangering life. I set out the Information in full:
First Count
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] on the 31st day of December 2012 at Warradale, murdered Lewis McPherson.
Second Count
Statement of Offence
Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] on the 31st day of December 2012 at Warradale, attempted to murder James Peter Lamont.
Third Count
Statement of Offence
Aggravated Endangering Life. (Section 29(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] on the 31st day of December 2012 at Warradale, without lawful excuse, did an act, namely discharged a firearm, knowing that the act was likely to endanger the life of James Peter Lamont, and intending to endanger James Peter Lamont’s life or being recklessly indifferent as to whether James Peter Lamont’s life was endangered.
It is further alleged that [the accused] used an offensive weapon, namely a firearm, when committing the offence.
Fourth Count
Statement of Offence
Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] on the 31st day of December 2012 at Warradale, attempted to murder Liam John Trewartha.
Fifth Count
Statement of Offence
Aggravated Endangering Life. (Section 29(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] on the 31st day of December 2012 at Warradale, without lawful excuse, did an act, namely discharged a firearm, knowing that the act was likely to endanger the life of Liam John Trewartha, and intending to endanger Liam John Trewartha’s life or being recklessly indifferent as to whether Liam John Trewartha’s life was endangered.
It is further alleged that [the accused] used an offensive weapon, namely a firearm, when committing the offence.
I direct myself that for the accused to be guilty of murder on Count 1 of the Information, the following elements have to be proved beyond reasonable doubt:
1That the act or acts of the accused caused the death of Lewis McPherson.
2That the act or acts of the accused which caused the death of Lewis McPherson were conscious and voluntary, that is to say that they were the result of the exercise of the accused’s will and were not the result of an accident.
3That the act or acts of the accused which caused the death of Lewis McPherson were carried out with the intention of either killing Lewis McPherson or at least causing grievous bodily harm. By the term grievous bodily harm I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out.
4That the killing was without any lawful justification or excuse.
An alternative route to a finding of guilt for murder is that, assuming elements 1, 2 and 4 above are proved beyond reasonable doubt, the accused can still be guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm. It is to be noted that it is not enough if he does the act knowing that it is possible but not likely that death or grievous bodily harm might result. If that is the accused’s state of mind and such knowledge is accompanied by an indifference as to whether death or grievous bodily harm is caused or not, the charge of murder is still made out.
I also direct myself that if the act or acts which caused the death of the deceased were caused by the accused but it has not been proved beyond reasonable doubt that that act was inflicted with an intention to cause grievous bodily harm, then a verdict of manslaughter could be returned if the following elements are proved beyond reasonable doubt:
1The accused killed the deceased.
2That the act or acts causing the death of the deceased were unlawful.
3That the act or acts causing the death of the deceased were dangerous. An act is dangerous for this purpose if a reasonable person in the position of the accused would have realised those actions would expose the deceased to an appreciable risk of serious harm.
There are two charges of attempted murder in relation to two alleged victims. On each charge of attempted murder there is an alternative charge of aggravated endangering life. For the accused to be convicted of the charge of attempted murder, the following elements must be proved beyond reasonable doubt:
1That the accused intended to kill James Peter Lamont (Count 2) or Liam John Trewartha (Count 4).
2That the accused attempted to carry out that intention.
3That, in attempting to kill either of the alleged victims, the accused acted unlawfully.
I direct myself that, for the first element to be made out, it must be proved beyond reasonable doubt that the intention was no less than an intention to kill the alleged victims.
If I find the accused not guilty on Counts 2 and 4 as charged, I must consider the alternative offence of aggravated endangering life (Counts 3 and 5). The elements that have to be proved beyond reasonable doubt to make out that alternative charge are:
1That the accused consciously and deliberately performed an act or acts which were likely to endanger the life of James Peter Lamont (Count 3) or Liam John Trewartha (Count 5). The act alleged here was the discharging of a pistol.
2That, at the time of performing that act or acts, the accused knew the act or acts were likely to endanger the life of the alleged victims.
3That the accused either positively intended to endanger the life of the alleged victims or was recklessly indifferent as to whether the performance of the relevant act endangered that person’s life.
4That the act or omission was done without lawful excuse.
5That the offence was aggravated by the use of an offensive weapon. In this case it is alleged that the accused used a firearm.
I direct myself that all elements of the offences set out above must be proved beyond reasonable doubt.
I turn to the question of intoxication.
Pursuant to s 269(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), both counsel have specifically raised the question of intoxication. I therefore direct myself as to the use to be made of self-induced intoxication.
In fact both counsel from the very outset of the trial made it clear that, in relation to the charge of murder, there was no dispute that the accused shot and killed Lewis McPherson. Both counsel agreed that the issue at trial was whether the accused was so affected by the ingestion of alcohol and drugs that the prosecution cannot prove beyond reasonable doubt a specific intention to at least cause grievous bodily harm. I set out s 268 of the CLCA:
268—Mental element of offence to be presumed in certain cases
(1)If the objective elements of an alleged offence are established against a defendant but the defendant’s consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—
(a) formed an intention to commit the offence before becoming intoxicated; and
(b) consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)If the objective elements of an alleged offence are established against a defendant but the defendant’s consciousness was (or may have been) impaired by self‑induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)However, subsection (2) does not extend to—
(a) a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or
(b) except where the alleged offence is an offence against section 48 (rape)—a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
(4)[Not applicable]
(5)[Not applicable]
(6)[Not applicable].
I direct myself that the effect of s 268 of the CLCA is to preclude self‑induced intoxication from being a defence to a crime of basic intent, but nevertheless it is a factor which is to be considered when considering whether a specific intent has been proved in such a crime when a specific intent is an element of the charge.
Accordingly, I direct myself that the question of self-induced intoxication is relevant to whether the specific intention required to make out the charge of murder has been proved.
I direct myself that the alternative charge of manslaughter is a crime of basic intent and may be available if the specific intent to make out murder cannot be proved.
I direct myself that the question of self-induced intoxication is relevant to whether the specific intention required to make out the charge of attempted murder has been proved. In relation to the alternative verdicts of aggravated endangering life, intoxication is also relevant to the specific, but less serious, intention necessary to make out that offence.
I turn to the facts of the case.
The prosecution case
There appears to be no dispute that, at approximately 7.15pm to 7.45pm on 31 December 2012, the accused left a house at 26 Railway Terrace, Warradale with a pistol in his right hand and from there walked along Sixth Avenue, towards Dunrobin Road, and came across three young men walking in the opposite direction. They were James Peter Lamont, Liam John Trewartha and the deceased Lewis McPherson. He discharged the pistol, firing at both James Lamont and Liam Trewartha and eventually fired at and killed Lewis McPherson. He then ran to Dunrobin Road where he discharged another bullet at a passing car containing three passengers. He was eventually arrested by police in the vicinity and there is no doubt that he was affected by the ingestion of both alcohol and drugs. Prior to the killing, the accused had been at a party at 26 Railway Terrace, a short distance from the scene and from where he had come.
The prosecution presented not only the two alleged victims who survived the shooting, but a number of young people who were present at the party, people who attended to the deceased, the arresting police officer, and a probationary constable who pursued and assisted with the apprehension of the accused at the scene. There are a number of agreed facts[1] and Professor Jason White gave evidence about the effects of alcohol and drugs.
[1] Exhibit P16.
I turn to the prosecution case in more detail.
James Lamont was aged 18 at the time of the alleged offences and went to Brighton Secondary School. He was friends with Liam Trewartha and the deceased, Lewis McPherson. He knew the accused, but not as a close friend. On New Year’s Eve 2012, having first met at Liam Trewartha’s house before later walking with friends to Lewis McPherson’s house, Mr Lamont intended to go with others to a New Year’s Eve party in the Marion area, at the home of a person called Bradley Hall. He and the two other alleged victims left on foot from Lewis McPherson’s house carrying some alcohol and intending to go to the party. They walked along Dunrobin Road, Warradale and turned left onto Sixth Avenue, which eventually forms a junction with Railway Terrace. They were walking towards Railway Terrace.
Mr Lamont gave evidence that he saw the accused turn left into Sixth Avenue from Railway Terrace and the accused was wearing black track pants and no shirt. Mr Lamont observed that the accused was holding a firearm in his right hand which was silver, black and very small. Mr Lamont greeted him by saying, “What’s up [H]?” and got the response, “Fucking cunts”. Lewis McPherson and Liam Trewartha also greeted the accused in a similar manner. The three victims were walking fairly closely together and the accused moved towards the centre of the road from the footpath, cocked the pistol, extended his right arm with the pistol in his right hand (having cocked it with his left hand), and pointed it at Mr Lamont. Whilst doing this the accused was moving towards Mr Lamont and fired one shot at him, then two shots in the direction of Lewis McPherson and then another shot.
Mr Lamont gave evidence as to how the accused cocked the gun:[2]
[2] T72.19 – 73.7.
Q. Did the accused then do something with the firearm.
A. Yes, he loaded it with his left hand, pointed it in front of his body.
Q. When you say ‘loaded with his left hand’ can you describe for us the motion or the movement of his hand as you interpret as loading the firearm.
A. Would you like me to stand up?
HIS HONOUR
Q. Yes, please, stand up and show me.
A. His right hand came around to here, left clocked it back and aimed it up (INDICATES).
WITNESS INDICATES HIS RIGHT ARM COMING UP TO A PERPENDICULAR AND POINTING THE FIREARM, COCKING WITH THE LEFT HAND
Q. When he did this was he in the middle of the road or on the footpath still.
A. He would have actioned the firearm on the footpath and by the time he was aiming at us he was on the road.
XN
Q. How far did he move between actioning the firearm as you have described it and pointing it.
A. It was almost simultaneously.
Q. Did he point it at anybody in particular.
A. Yes.
Q. Who.
A. He pointed it at me first.
Q. How far was he from you when he pointed it at you.
A. He probably would have been about 2 m.
Mr Lamont then gave further evidence that when the accused fired the first shot at him, the accused was about two metres away. Mr Lamont also said that he saw smoke exit from the barrel of the pistol. He said:[3]
[3] T74.2 – 36.
Q. We will have to go back over that. Where was Lewis McPherson when you say the shot was fired at you.
A. The same position as we were when we greeted [the accused].
Q. Some distance to your right.
A. Yes, about 2 m.
Q. After the shot was fired at you did the accused appear to alter his attention from you to someone else.
A. Yes.
Q. Who was that.
A. Lewis McPherson.
Q. Tell us what happened after that.
A. After he had?
Q. Turned his attention to Lewis McPherson.
A. That is when I heard him fire two shots, the smoke – I saw the smoke - and the fourth shot I heard after that, very quick succession.
Q. Did you see anything come from the firearm after the fourth shot.
A. No, I did not. I was not looking at the weapon by the fourth shot.
Q. What happened to Lewis McPherson after the accused had turned his attention to him and fired the shots.
A. What did the accused do?
Q. No, what happened to Lewis McPherson.
A. I looked to my right and I saw a bloodstain on his shirt.
Q. Whereabouts.
A. Just above the right pectoral and he then clutched at it with his left hand.
Q. Go on, what happened after that.
A. Then he stumbled back, he tried to yell for help but he couldn’t scream and he stumbled on to the floor and that is when I rushed to him.
Q. Was it in the road that he stumbled.
A. He stumbled on to the driveway.
Further on, Mr Lamont gave the following evidence:[4]
[4] T75.15 – 25.
Q. When he fired the next two shots that obviously hit Mr McPherson how far was he from Mr McPherson.
A. I wouldn’t be able to say in honesty -
Q. No, just as best you can.
A. He would have been about 7 feet.
Q. And Mr McPherson was behind you.
A. To the right side of me.
Q. And behind.
A. Just behind, yes.
Q. Was he still moving forward at that stage.
A. Yes, he was still moving forward.
Mr Lamont gave evidence that, after the deceased fell, the accused started running along Sixth Avenue towards Dunrobin Road with the firearm still in his hand. The witness then attended to the deceased, an ambulance was called and a number of people came into the street. A number of those people assisted the deceased and, about two minutes later, Mr Lamont saw the accused walking along Sixth Avenue, towards Railway Terrace, looking very aggravated. The accused still had the firearm in his right hand and Mr Lamont, fearful for his life and seeing the firearm and having seen what happened before, ran across Railway Terrace and across the train line, which runs parallel to Railway Terrace, and observed what was happening opposite him in Sixth Avenue. Mr Lamont then returned after about 20 seconds and there were group of people helping the deceased, who was still alive at this stage. The police and an ambulance eventually arrived.
It was established in cross-examination that the deceased was further away from the accused when he was shot than was the witness, Mr Lamont, when he was shot at. However, Mr Lamont also said that although the deceased was behind him when he was shot, he was only “a bit” behind him. Mr Lamont did agree, however, when cross-examined, that after the first shot was fired it was very difficult to account accurately for the distances between the accused and the three alleged victims. Mr Lamont also agreed in cross-examination that before this incident he would have had about four beers on that night.
Liam Trewartha gave evidence that he is 18 years of age and went to Brighton High School, having left in Term 2 of 2012. He had known the deceased, Mr McPherson, for about five years and also the witness James Lamont for about the same period of time. They were all good friends. He also knew the accused, who went to his school, but did not know him very well. There was, however, no ill feeling between them. Mr Trewartha gave evidence of what happened on New Year’s Eve 2012.
Mr Trewartha, along with the deceased and Mr Lamont, came to be at the deceased’s house and were planning to go to a party which was just off Sturt Road. Eventually, Mr Trewartha, the deceased and Mr Lamont left the house, at about 7.20pm to 7.30pm, carrying some bottles of beer in a Coles bag and an esky and walked down Dunrobin Road and turned left into Sixth Avenue, heading towards Railway Terrace. Mr Trewartha gave evidence that, whilst on Sixth Avenue, he saw the accused coming around the corner from Railway Terrace and heading up Sixth Avenue towards them. The accused was wearing no shirt and looked angry. He said that all three victims greeted the accused who replied by saying, “Fucking cunts”.
Mr Trewartha gave evidence that he noticed that the accused was carrying a gun in his right hand. He first noticed the gun when the accused was about 20 metres away from them. Mr Trewartha gave evidence that the accused kept walking straight towards them and the witness felt “endangered”. The other two victims kept walking towards the accused, but he moved off to the left towards the fence line to get out of the accused’s way. Mr Trewartha said that the accused, uttered the words, “Fucking cunts” and he was pretty sure that he remembered the accused also saying, “Give me my wallet” or “Give me your wallet”. Mr Trewartha said the first shot was then fired at Mr Lamont. He gave evidence that a second shot was then fired towards him when he was walking along the fence line. Mr Trewartha said that when the accused fired that second shot, which was at him, he would have been roughly eight metres away. Mr Trewartha gave evidence that after the second shot, the accused then shot twice in the area of the other two when they were no more than about two metres from him.
Mr Trewartha said that, after the last shot was fired, he heard the deceased kind of yell and saw that he had been hit in the area of his chest because blood had started to come out. The deceased went to the ground and fell into the driveway of a house. The witness ran straight towards him, got out his phone and called the ambulance. He saw the accused running towards Dunrobin Road. Mr Trewartha then went around the corner to the left, along Railway Terrace, to get out of the way. He said some people then started to come into the street out after the gun had gone off. Mr Trewartha then saw the accused return with the gun, retracing his steps from Dunrobin Road, and that is when the witness ran down Railway Terrace until he got to the Warradale train station. He said that he waited in the area of the Warradale train station for about five minutes until the police came and he spoke to them.
In cross-examination, Mr Trewartha said that during the afternoon he had had a couple of glasses of vodka and coke, but had not had any drugs.
There does not appear to be any evidence to suggest that either of the two eye witnesses were intoxicated at the time of the incident.
The prosecution then called a number of witnesses who were at a party at 26 Railway Terrace which was around the corner from the scene of the killing. The accused was living at that house at the time and there is no dispute that he came from that party.
Louise Ann Woollard, who was aged 16 and went to Brighton High School at the time, gave evidence that she went to John Tilley-Griffin’s house at 26 Railway Terrace on New Year’s Eve. At one stage in the afternoon she saw the accused asleep on the floor in the room I will refer to as “Joe’s room”. Ms Woollard gave the following evidence as to her observations of the accused:[5]
[5] T136.20 – 29; T137.8 – 37.
Q. Who was in that room.
A. [L].
Q. When you say ‘[L]’ you mean the accused.
A. Yes.
Q. Was anyone else in the room.
A. No.
Q. What was [the accused] doing when you came into the room.
A. He was like passed out on the floor.
Q. He was asleep, was he.
A. Yeah.
…
HIS HONOUR
Q. Can you say one way or the other.
A. He wasn’t asleep but he was kind of drunkenly passed out.
XN
Q. Had you seen him in a conscious state prior to this at the party.
A. Yes.
HIS HONOUR
Q. Were his eyes open.
A. He was kind of squinting.
XN
Q. What happened then, what did you do.
A. I got him up and sat him up on the bed and lit him a cigarette and sat there with him.
Q. For how long.
A. Only a couple of minutes.
Q. Did you talk with him.
A. Yeah, I just asked him if he was okay.
Q. What was his response.
A. Yeah, he was fine, gave me the thumbs up, said he was okay.
Q. Did you talk about anything else.
A. No.
Q. You said that he gave you the thumbs up.
A. Yes.
Q. What, literally gave you the thumbs up.
A. Yes.
Q. Did he smoke the cigarette.
A. Yes.
Ms Woollard gave evidence that she then left the accused in Joe’s room and went out the front where John Edward Tilley-Griffin was angry and aggressive as a result of an altercation outside relating to the sale of drugs. Ms Woollard gave evidence that John Tilley-Griffen was saying words to the effect that he wanted to go and get the accused’s gun. She said that she followed John Tilley-Griffin into Joe’s room where the accused was and John demanded that the accused give him the gun. There was then a fight between the two. Ms Woollard described the accused’s state after that fight when she saw him again out the back:[6]
Q.What sort of state was he in.
A.He was a mess, he was crying and really distraught about the fact that he and John had just had a fight because they were supposed to be really good friends.
[6] T141.23 – 141.26.
Ms Woollard said the fight had been broken up by other people. At a later stage she saw the accused in the lounge room with a gun in his hand and gave evidence as to a brief conversation that she had with the accused at that time:[7]
Q.Did you say anything to him.
A.Yes.
Q.What did you say.
A.I said ‘Put [the gun] down, you don’t need it. You’re a dickhead.’
Q.Was there any response from the accused.
A.He just turned around and told us not to leave the house.
[7] T142.37 – 144.6.
Ms Woollard said that after this conversation the accused left the house and went onto Railway Terrace and after that she heard gunshots. Ms Woollard gave evidence as to how she assisted the deceased when she went out to observe what had happened in Sixth Avenue.
Melissa Emily Jupp, who is aged 15 years, was also at the party and at that time was going to Brighton High School and knew the accused. She also saw what happened in Joe’s room when there was a fight between the accused and John Tilley-Griffin. She described how John Tilley-Griffin was trying to get the accused to get his gun, but the accused was fighting him off. A short time later, Ms Jupp saw the accused leave the house to go onto Sixth Avenue with that gun in his hand. She said it was small and silver and she first saw it when it was shown to her by the accused some five months earlier. Ms Jupp then heard loud bangs out in the street. She did not see the accused but saw the deceased being attended to by an ambulance officer.
Three witnesses were called and gave evidence about an incident that took place in Dunrobin Road after the shooting. Bradley Terry Walczak was a passenger in a car driven by his wife, Sherie Anne Walczak, travelling along Dunrobin Road in a westerly direction. Sherie Walczak’s daughter, Bradley Walczak’s step-daughter, Christie-Anne Collins, was sitting in the back of the car. All of them gave evidence to the effect that they saw the accused, who was unsteady on his feet, point a gun at the car and shoot at them. He then staggered across the road and fell over. He was not successful in hitting the car. They saw the accused coming out of Sixth Avenue onto Dunrobin Road and Ms Collins recognised him as a person she knew at school. There was no doubt that it was the accused. They described the gun as small and silver and that his hand was outstretched when he fired it.
Pamela Collier was walking along Sixth Avenue towards Railway Terrace and saw the accused walking in the opposite direction at a time that was obviously shortly after the shooting. She noticed that the accused had something shiny and silver in his pocket and, after he had passed her position, when she was walking on the western side of the road, she saw a person lying on the ground and there were people assisting him.
Allison June McGillick lived in the house at 27 Railway Terrace which is on the corner of Railway Terrace and Sixth Avenue, next to 26 Railway Terrace where the party was taking place. During the afternoon she heard John Tilley‑Griffin yelling out and she thought matters became so threatening from the people next door that she decided to ring the police. At one stage she saw a person with the leg of a chair in his hand, smashing it against his other hand and saying words to the effect, “I am going to get him”. After she phoned the police Mrs McGillick heard a group of people moving into Sixth Avenue and she heard three bangs, which she thought were fireworks. She went and looked and saw about 10 or 12 young people in the street and saw that someone was lying in the gutter. She approached that person, still talking to the police on her cordless phone. She said she saw a young lad lying on the ground in her driveway. At about that time, the accused was walking down Sixth Avenue from Dunrobin Road with a gun in his hand. She said he walked straight up to the boy on the ground, bent over him and pushed the gun into his stomach and said, “If you don’t stop being dead, I am going to make you really dead”.[8] She said that the accused then stood up and pointed the gun at her and her daughter, who was standing just behind her, waved it backwards and forwards and then turned and ran along Sixth Avenue towards Dunrobin Road. Mrs McGillick was present when the police arrived shortly after and then an ambulance arrived.
[8] T222.1 – 222.2.
When cross-examined by Mr Boucaut SC, counsel for the accused, it was put to Mrs McGillick that in her statement that she gave to the police she told the police how the accused pushed the firearm into the stomach of the injured boy but said to the police that the accused did not say anything. It was further put by Mr Boucaut that such a conversation did not take place. In her evidence before me, Mrs McGillick agreed that that is what was said in her statement but she had asked the police that it be corrected. The police took another statement from her some time later with that correction.
Also in cross-examination it was put that, out of court, she listened to an audio recording of her phone conversation with the police operations telephonist that took place at the time that the accused returned to the scene with the gun. She agreed that in that conversation there was no suggestion of any words being said by the accused at that time. Namely, you could not hear on that audio, “If you don’t stop being dead, I am going to make you really dead”. This question was asked:[9]
Q. What I’m getting at, you can’t hear anything like that on the audio, can you.
A. No, but it’s a cordless phone, I’m talking loudly, you can’t hear all the background noise, there was a lot of background noise around, he’s talking directly and he’s not talking very loudly. He was only saying it quietly.
I will deal further with that issue when I relate my findings.
[9] T240.6 – 11.
Mrs McGillick’s daughter, Katherine Lauren McGillick, was also called and she gave evidence of attending to the deceased with her mother and seeing the accused walk from Dunrobin Road, kneel down next to the deceased and put a gun to his stomach. She gave no evidence about anything being said by the accused at that time.
I refer to the evidence of John Tilley-Griffin briefly. He, himself, was drunk at the time of the incident and his evidence and the evidence of his mother, Susanna Tilley, added very little.
Mitchell Peter Egger gave evidence of seeing the accused and John Tilley‑Griffin arguing and saw the accused getting kicked out of the house.
Matthew Kenneth Robertson, who was admittedly intoxicated at the time of the incident, was present at the party and saw the accused coming from Joe’s room with a gun and later heard shots on Sixth Avenue. In cross-examination he said that the accused was so intoxicated he did not seem to recognise the witness, who was a person he knew well.
The civilian witnesses all gave evidence which, in essence, was basically undisputed. The most significant witnesses were, of course, James Peter Lamont and Liam John Trewartha. However, a number of other witnesses, whose evidence I have summarised, gave evidence towards an assessment of the condition and mood of the accused and the lead up to the events which are the basis of the charges.
I turn to the police witnesses.
Brevet Sergeant Michael John Tobiasen, who is a member of the Forensic Response Section, went to the intersection of Sixth Avenue and Railway Terrace, Warradale, arriving at about 9.55pm. It is not necessary to go into the details of his forensic work at the time except in relation to the fact that he went to 11 Seventh Avenue and saw a handgun on the shade cloth covering a pergola. There is no dispute that this was the handgun used by the accused.
He then gave evidence about the nature of that gun in that it was a .22 calibre firearm. He demonstrated how the magazine fitted into the firearm and how the safety mechanism worked. He said the firearm was unloaded when he discovered it but he could not remove the magazine because of a small dent which prevented the magazine from sliding out of it. He said the magazine was able to contain six .22 long rifle rounds. The firearm was test fired. The result of the test firing was that the spring inside the magazine would start to lose its tension when it came to the sixth round. As soon as it fired off the fifth round, the shell casing would jam up with the last round that was trying to get into the chamber of the firearm. He then subjected the firearm to trigger tests and his opinion was that, compared with other firearms, he would class it as a fairly hefty heavy weight trigger pull. In other words, it required some pressure. As far as that aspect was concerned, there was no malfunction of the firearm.
Detective Matthew David Buck, the arresting detective, went to the property at 26 Railway Terrace at 8.08pm and had a conversation with the accused. The accused was then taken in a police car to the Sturt Police Station and taken to a holding cell at 8.45pm. The accused was removed at 11.29pm in order that the police could make an application for an order authorising a suspect forensic procedure. That application was heard and granted by Detective Chief Inspector Trevor Lovegrove. Following that application being heard, a record of interview with the accused was commenced at around 11.48pm. The accused was then taken to the Wakefield Hospital, arriving at 1.39am on 1 January 2013. Blood was taken from him whilst there. All of those procedures (aside from the forensic procedure), from the time when Detective Buck arrived and spoke to the accused until the end of the procedure at the Wakefield Hospital, were recorded by video. That video was tendered as Exhibit P10.[10]
[10] I was also assisted, by consent, with transcripts of what took place namely, Exhibit P11: the initial conversation; Exhibit P12: the forensics procedure; Exhibit P13: the record of interview; Exhibit P14: the taking of the blood. However, I remind myself that it is the video which is the primary evidence and if there is any difference between what I observed and heard on the video from the transcripts, it is the video which I follow.
The importance of that evidence is not what the accused said at the time, because the content was quite neutral, but the state of the accused shortly after the incident and further on into the evening. I will deal with that material in more detail when I relate my findings.
The final police witness was Nathan Ross, a probationary constable who arrived at the scene at 7.42pm and immediately commenced CPR on the deceased before ambulance officers took over. Probationary Constable Ross described an incident with the accused and I set out his evidence on that topic:[11]
[11] T296.1 – 297.35.
Q. Directed your attention to an area of Railway Terrace.
A. Yes, he was pointing west down Railway Terrace.
Q. What did you do as a result of that.
A. At that time he was yelling out that ‘He’s down there. The person that shot Lewis is down there’, or words like that.
Q. Tell us what you did.
A. At that time I walked up to the intersection of Sixth Avenue and Railway Terrace, I was in the middle of the road at that time, I noticed that there were two people standing at No.24 Railway Terrace.
Q. How far away from you was that.
A. About 75 m.
Q. Can you describe the people.
A. The two people that were there, one was an older gentleman about 40-50 years old, he had a black T-shirt on with some sort of white writing or logo, with a grey ponytail.
Q. And the other one.
A. The other one was a male in his late teens, no T-shirt.
Q. Did you understand that to be [the accused].
A. That’s correct.
Q. What did you do when you saw them.
A. I gave commands - at this stage I was probably 75 m away, I gave commands ‘Stop, police, don’t move. Stay where you are’, I said that a few times.
Q. After that happened what did the accused do.
A. He turned and ran west along Railway Terrace.
Q. And you, what did you do when that happened.
A. I began chasing him.
Q. Tell us what happened after that.
A. As we were chasing him west along Railway Terrace I held down my radio bottom on and I gave information that we had runners west along Railway Terrace.
Q. What did the accused do.
A. He turned right and headed north up Seventh Avenue.
Q. Did you follow him.
A. I did, however I did lose sight of him as I rounded the corner.
Q. As you rounded the corner did you hear some noises.
A. Yes, I heard kicking and banging of a corrugated iron fence.
Q. Was your attention attracted to a pergola.
A. It was. As I have come around the corner I noticed that my partner, Ben, told me to sit back, a second patrol car had come around the corner. I went to the back of that patrol car when I noticed the accused poke his head up from that pergola, that roofing.
Q. Looking at Exhibit P1, go to photograph 5 if you would.
A. Yes.
Q. Is that the area that you just referred to.
A. That is correct, yes.
Q. Where specifically did the head pop up from.
A. If you can see where I am pointing to, which is roughly in the middle of the pergola, that is where the head had popped up from.
Q. What did you do.
A. At that point I have yelled out ‘He’s on the roof, he’s on the roof’, which then drew the attention of Constable Tim Kassebaum and Constable Holly Barber. Then both gave directions to the accused to put his hands up.
Q. Where was the accused when that happened.
A. He was on this pergola roofing, the shade cloth.
Q. Does photograph No.6 of P1 show the pergola that you are referring to.
A. Yes, that is correct.
Q. Did you see the firearm that we see in photographs 6 and 7 on the night of the 31st.
A. I did, yes.
Q. In the position that we see it in.
A. Yes.
Q. Was the accused then arrested and handcuffed.
A. Yes, he was.
The pergola mentioned in that passage is where the weapon was found by Brevet Sergeant Tobiasen.
There were a number of agreed facts which were tendered.[12] I refer briefly to some of those.
[12] Exhibit P16.
1Dr John Gilbert of the State Forensic Science Centre conducted an autopsy on the body of the deceased and was of the opinion that death resulted from uncontrollable haemorrhage from a gunshot injury to the lungs.
2The deceased’s blood had a blood alcohol concentration of 0.134 per cent and also contained ∆9-tetrahydrocannabinol (THC) at a level of seven micrograms per litre.
3A blood sample was taken from the accused at approximately 2.00am and contained:
a.0.154 per cent alcohol.
b.0.01 mg 3,4-methylenedioxymethylamphetamine (MDMA) per Litre.
c.4 micrograms THC per Litre.
d.42 micrograms 11-nor-9-carboxy-∆9-tetrahydrocannabinol per Litre.
4A DNA sample was taken from the accused.
5Three spent cartridge cases were recovered by Brevet Sergeant Tobiasen on Sixth Avenue, Warradale on 31 December 2012 and were examined by Andrew Plummer at the South Australia Police Ballistics Section on 13 March 2013. The three casings were compared with the six spent cartridge casings from the test shots of the firearm conducted by Brevet Sergeant Tobiasen.
6(a) At about 10.20p.m on the 31st of December 2012 Detectives Schneemilch and Dezilwa, and Constable Ward conducted a search of the premises at 26 Railway Terrace, Warradale. The only item of interest located was a mobile phone of the accused. It was seized. Nothing of relevance to the investigation was located on that phone.
(b)On 1 January 2013 Detective Rodrigues met Mr and Mrs Walczak on Dunrobin Road, Warradale. Mrs Walczak indicated to Rodrigues the approximate location of where she had seen the male who pointed the gun at the car, as well as the tree the male had walked into after lunging at the car.
(c)Detective Rodrigues searched the general area indicated by Mrs Walczak for a bullet casing but did not locate anything of interest.
7A single DNA profile was obtained from a swab of the handle area of the firearm, which when compared with the DNA profile of the accused resulted in a statistical weighting of more than 100 billion in favour of the accused being the source of the DNA profile.
There were a number of other agreed facts which are unnecessary to set out but which lead to the inexorable finding that the accused shot and killed the deceased with the firearm found on the pergola by Brevet Sergeant Tobiasen, it having been deposited there by the accused when he was pursued by Probationary Constable Ross.
The prosecution case concluded with the evidence of Professor Jason White, a professor of pharmacology. He gave evidence of his extensive qualifications and experience in giving evidence in criminal courts. He was asked to assume that the analysis of the accused’s blood sample which was taken at 2.00am on 1 January was 0.154 per cent alcohol. He, with reasons that are undisputed, assessed that his reading at around about 7.30pm the previous evening would have been in the range of 0.252 to 0.284 per cent.
He then gave expert evidence of the general effects that a person would experience with that level of alcohol in his blood. He gave the following evidence on that topic:[13]
Q. I turn to the effects of alcohol at the level that you have estimated at 7.30 p.m. on 31 December. Can you tell us what effects you would expect that level of alcohol to have on a person, in particular I ask you to assume the person we’re talking about is nearly 18 years of age.
A. Well in the vast majority of people and the only exceptions are those people who might be classed as alcoholic or alcohol dependent, that level of alcohol would produce a gross level of intoxication. A person would be obviously affected to an observer and the signs of intoxication are typically slurred speech, staggering when they walk, glazed eyes. It’s likely all three of those could have been apparent to an observer. The person is likely to be quite sedated. Now the degree of sedation depends on the individual, and on how accustomed they are to drinking alcohol. Depends also on the circumstances. Sometimes people will stay awake more if they are in an environment which has a lot of stimulation from social interaction, for example. But the person is likely to show some degree of sedation they will look like they are tired, sleepy. They’ll have difficulty concentrating on any conversation or what is happening around them. They will likely be quite confused. Their thinking is at a relatively low level. They would be able to understand very basic things, but you couldn’t engage them in conversation with any degree of complexity, they simply wouldn’t be able to understand what was happening. There is a phenomenon known as disinhibition, that is, the person has a lesser degree of restraint or inhibition on their behaviour than normal so they tend to act in a more impulsive, more risky or reckless kind of manner. That can take various forms depending on the circumstances. One of those is aggression, they can become aggressive because of that disinhibition particularly if the person’s provoked in some way, but it should also be said that a person who is intoxicated may perceive provocation when sober they wouldn’t, because of their confusion in thinking and errors of misunderstanding. I think they would be the principal ones. The other is impairment of memory for events that occurred around the period of time. Alcohol progressively affects memory in the sense that the higher the blood alcohol concentration people tend to remember less and less about what happened during that period of intoxication. There is however a point at which the person doesn’t remember anything for certain periods of time and that’s sometimes known as blackout. It typically requires blood alcohol concentrations around .25% or above and it’s understood that this occurs because the effect on brain function is such that the memory essentially is in lockdown so there is no possibility of retrieving the information.
Q. When you talk about ‘blackout’ you don’t associate that necessarily with a state of unconsciousness.
A. No. A person may not remember simply because they are not conscious. In this instance I’m talking about a person who is observed to be behaving and interacting potentially with other people but later has absolutely no recollection of the events that occurred for that period of time.
He added that the effect that alcohol has on a person may be affected by their tolerance to alcohol.
[13] T306.28 – 308.13.
He then gave evidence of the effect of the agreed amount of THC in the accused’s blood at the time of the shooting. The agreed amount indicated that he was likely to have consumed cannabis but he is unable to say with 100 per cent certainty whether he was under the influence of cannabis at the time. However, it may have been likely. He then gave evidence of the effects of cannabis and how those effects would manifest themselves. On that topic he gave the following evidence:[14]
Q. How would the cannabis or the effect of cannabis manifest itself.
A. Cannabis has often an initially mild stimulating effect, people experience an elevation in mood for a period of time, that typically lasts only a period of minutes, longer lasting effect, as I said, up to four hours or so, is one of sedation. The person tends to be quieter, they have a feeling of relaxation, sometimes they may indeed fall asleep under the influence of cannabis. There is an impairment in the person’s functioning, so thinking is impaired. It certainly wouldn’t be to the degree that I described earlier for the higher blood alcohol concentration but there is some impairment in thinking and concentration and again a person would have difficulty under the influence of cannabis engaging in activities that require a lot of mental effort. They would find it difficult. Cannabis doesn’t produce that disinhibition that I described earlier so you don’t get impulsive or risky or reckless behaviour, nevertheless the impairment in thinking that is produced, people can make decisions that they wouldn’t have made unless they were intoxicated.
Q. Does a combination of alcohol and cannabis work to increase intoxication.
A. It wouldn’t necessarily increase the outward signs of intoxication. The person might be a little bit more sedated as a result of the cannabis. If we’re having alcohol at the level that I described earlier, then overwhelming the predominant effect would be alcohol. Cannabis will add a little more sedation, it will add a little bit more impairment in thinking and also skills like balancing, coordination, but really the effect of alcohol at those concentrations is so strong the cannabis is only going to add a bit more effect.
Q. So perhaps slightly increase the effects of the alcohol.
A. Yes.
[14] T309.11 – 310.8.
He then gave evidence of the effects of MDMA. He said the concentration of 0.01 in the present case was small and there would really be no significant effect.
Professor White went on to say that the concentrations of MDMA, THC and alcohol discovered in the accused at the time were such that the overwhelming effect would be caused by alcohol.
Professor White then told the Court that he viewed the footage of the accused in Exhibit P10 from the time he was arrested through to when blood was taken from him. He gave this evidence on that topic:[15]
[15] T314.16 – 315.27.
Q. Having watched that footage, have you formed a view about the accused’s tolerance to alcohol.
A. Yes.
Q. What is that view.
A. I think the accused would have had some tolerance to alcohol, particularly with reference to the first period as from 8.02 p.m. given the likely blood alcohol concentration around that time. If someone had no tolerance to alcohol then I would think they would have even been awake at that time and wouldn’t have been able to stand. So the fact that he was able to stand even, he didn’t require support and was able to stay awake suggests some degree of tolerance. Also at the time of the interview, he was able to respond to questions. He did understand what was going on. The effects of alcohol weren’t very pronounced, in the sense that he didn’t exhibit slurred speech at the time of the interview. He did at the early time but not at the time of the interview and I think for many people who had little experience of alcohol, they are very likely to have slurred their speech at the levels that he had in his body at the time of the interview.
Q. So when you talk about the interview you are talking about 11.30 p.m.
A. Yes.
Q. Was there one aspect of the accused’s presentation at 11.30 that you could ascribe to the effects of alcohol.
A. Yes, and this goes to the thinking of someone under the influence of alcohol, that he was most concerned with getting back to the house that he came from in order to sleep. So despite the seriousness of the issues being discussed, he was focusing on his immediate needs, which were to want to go to sleep. And that’s typical of someone who is intoxicated with alcohol, they do focus on the here and now, they don’t seem to be able to consider broader issues in this case despite obviously the very high significance of those issues.
Q. I just want to be clear on the basis of your opinion that the accused is tolerant to alcohol. Is that based on his appearance against the background of the countback levels of alcohol that you calculated at 11.30 p.m. on 31 December.
A. Yes, and also for the earlier period of time. I calculated for 7.30 which was shortly after, but also for his appearance and behaviour relative to the blood alcohol concentration, he would have been at that time.
Q. I want to be absolutely clear about this: the higher the tolerance a person has to alcohol, the less the intoxicating effects.
A. Yes, for a given blood alcohol concentration.
I note that Professor White quite properly was not asked the ultimate question as to whether he had an opinion about the accused’s intention at the time of the shootings.
In cross-examination, Professor White said that, at the level that the accused was intoxicated to at 8.00pm on the evening in question, the accused’s ability to think through the consequences of his actions would be grossly impaired. He gave the following evidence on that topic:[16]
Q. What about his ability to formulate in his mind an outcome from an action that he has embarked upon.
A. He would think about the immediate outcome of what he was doing but as to what might then subsequently happen as a result of that, he would have great difficulty or be unable to think through. So, what immediately occurred as a result of what he did it’s likely that he understood that and if he was asked he could explain that but what then might consequently ensue, that might be difficult for him.
[16] T321.27 – 36.
The defence case
The accused elected not to give evidence. I direct myself that that is a right given to him by law and there can be no prejudice afforded to him for taking that course. The onus is still upon the prosecution to prove the charges beyond reasonable doubt.
The defence called an experienced psychiatrist, Dr Craig William John Raeside. I turn to his evidence.
Dr Raeside gave evidence of his extensive experience as a psychiatrist, including his numerous appearances as an expert witness in the criminal courts of this State. He gave evidence that he had carefully studied the footage of the accused in Exhibit P10. He gave evidence that he has read the transcript of Professor White from this trial. It was put to Dr Raeside in his evidence, accurately, that the accused leading up to his arrest was seen to be in a highly intoxicated state.
The results of the agreed analysis of the blood taken from the accused were also presented to him. He said he deferred to Professor White’s backdating of the blood alcohol reading to be in the range of 0.252 per cent to 0.284 per cent at the time that the allegations are said to have taken place. He then gave evidence of the effects of alcohol on the brain. Relevant to the present case, but nevertheless talking generally, he talked about the effect of a reading above 0.2 per cent on a person’s brain. He gave the following evidence on that topic:[17]
A. Once you get above .2 then you are starting to get marked affects on all brain function and it is clearly visible. People will know that the person is intoxicated and there is a variety of behaviour. Then you are starting to get to the sort of comatosed stage, the person is very sedated, drowsy, nodding off, bursts of anger and aggression and they nod off again. At that level they are not making much sense in some of the things that they are saying or how they are acting and people are becoming very concerned about them at that level. Depending on the environment, people might go to sleep, if they are at home they go to bed or sleep where they are or they might, depending on individual variation, get into a more deep comma as you go beyond that. By .3 they would be unconscious and death can occur above .3.
Q. .28.
A. You are getting near that level where you would expect a person to be severely affected by alcohol. Their consciousness is affected, either they are unconscious or they are drifting in and out. They are uncoordinated in their movements. As you said, they may have trouble standing or supporting themselves, their balance is off, they are clumsy and their behaviour is usually obnoxious at that point.
[17] T337.13 – 37.
Dr Raeside then gave evidence of a general nature as to how alcohol affects the processes of thought that go on within a person’s brain. He gave the following evidence on that topic:[18]
[18] T341.34 – 343.36.
Q. I want to ask you some questions about what you term as impulsivity and the effects of alcohol on behaviour. How does alcohol affect the processes of thought that go on within a person’s brain.
A. In a general sense it slows down the processes, so therefore a person is not as able to quickly do a process, a mental process, that they would do if they were not under the influence of alcohol, so it depresses their brain function, it depresses their thinking processes.
Q. Okay. If we talk of that in terms of being presented with some kind of a stimulus which in the normal course of life would produce a response from the person.
A. Yes.
Q. How might alcohol affect first of all a person’s perception of a stimulus. You can give us an example if you like to help us understand that.
A. Right, I can use two examples one non alcohol related, and one alcohol related. The example I often give - going back a step, you mentioned ‘thinking’ but the issue of a stimulus response is one of behaviour, in other words someone perceives a stimulus - I’ll mention later whether that’s a correct perception – someone perceives something then they react to it, their response. What determines their response is the gap between the stimulus and the response. In other words enough time to think through the likely response. The first example would be you come to my office to see me and you sit down in my chair and for some reason I’ve accidentally left a hypodermic needle sitting on the chair, perhaps from someone I’ve seen. You sit down and that needle sticks in your backside. You’re likely to immediately jump up, probably curse, look visibly upset, maybe call me names and, being a lawyer, threaten to sue me for leaving that there. You’re upset. That’s your response to that stimulus of the needle going into your backside. However if you had come to see me and you had some medical condition and I said ‘I think we need to give you an injection or something to treat that it’s going to be a needle in the backside’, you might not be very happy about it, you would probably grin and bear it I would stick the needle in your backside and you would say ‘Thank you very much doctor, here’s the money for the services rendered’. The response is different. It is essentially the same stimulus of the needle in the backside, the difference is the gap of when you have thought or not thought about the meaning of the stimulus, the immediate thought is ‘I have a needle in my backside’. You might think ‘What a stupid doctor. How careless is he? He deserves to be abused’, or whatever, or maybe even punch me out for that and so you process it, or maybe not. The second one is you think about it, you think ‘I needed that needle, I’m sick, I needed the injection to prevent the flu, or something like that. That’s going to help. Thank you very much.’ In that gap between the stimulus and the response your brain does various things. One is your conscience, that is what you perceive to be right or wrong in your own framework. Secondly, is how you perceive yourself and others see, your self-awareness. There is also what’s call your imagination, I don’t mean fantasy, your ability to think ahead, think of the potential consequences to this, and think about potential outcome or actions and what will result, and lastly, there’s the ability to actually make a choice and exercise your own independent will. Second example I was going to give is you’re at a pub it’s crowded, it’s noisy it’s getting late in the night, people have been drinking and you’ve had a few drinks and someone bumps into you as they walk past. You might turn around and deck them and flatten them on the ground because either you think they are careless, or having a go at you, or whatever. And so you’ve acted without really thinking through that gap. The alcohol narrows the gap between stimulus and response so you tend to react without giving the thought. When I talk about ‘the gap’ I’m talking microseconds really, in reality, but you act without thinking, which is the definition of impulsive behaviour.
Further on he gave the following evidence:[19]
Q.Let’s think about the short term consequences and the ability to formulate in the mind what you actually want to do to the person when you to use your example king-hit him. Is alcohol going to affect a person’s ability to formulate some kind of an intention in that regard.
A. Yes. The higher the degree of intoxication, essentially, the shorter that gap is. The only intention might be to king-hit him.
Q. Without any application of the mind to what you’re wanting to do when you king-hit him, is that what you mean.
A. Yes, I mean at the extreme level the person may act without even forming the intention to act, what’s called an involuntary action.
[19] T345.14 – 28.
As I understand Dr Raeside’s evidence, the ingestion of alcohol at a higher level can affect the thought processes so that although the basic intention is present, there may be an inability to formulate an understanding of the consequences of the act. In other words, at those higher levels the consequences of a person’s actions may not have been intended.
Like Professor White, Dr Raeside talked in helpful terms but was not asked, nor did he try to answer, the ultimate question in this case as to the accused’s state of mind when he shot at the alleged victims.
Counsel’s arguments
Prosecution submissions
Mr Preston, for the prosecution, made the following points in his final address:
1He submitted that if one looks at the surrounding circumstances, although the accused was grossly affected by liquor he formed the intention to commit all three crimes.
2He pointed out that there is clear evidence that the accused was angry and left the house with a gun in his hand. He had been involved in a fight and, at one stage whilst leaving the house with a gun in his hand, told people not to leave the house.[20]
3Mr Preston pointed out the accused’s response to the two surviving victims and what he said to them at the time.
4He pointed out also the nature of the shootings. Before firing at the three alleged victims, he cocked the gun in the way described by the expert witness Brevet Sergeant Tobiasen. He held out his arm and he shot individually in their direction.
5Mr Preston pointed out the closeness of the distances between the accused and the victims. Although he concedes distances in such a traumatic setting may be imprecise, all of the evidence suggests the accused was very close to his victims. Mr Lamont gave evidence of him being as close as two metres to himself.[21]
6Mr Preston emphasised the return of the accused and him going to the deceased whilst he was lying wounded on the ground and pushing the gun into his chest and saying the words attributed to him by the witness Mrs McGillick.
7Mr Preston emphasised the accused fleeing first from the scene of the crime and again, after having returned, from Probationary Constable Ross and trying to hide at 11 Railway Terrace and trying to hide the gun on top of the pergola. Mr Preston’s submission is that this is not evidence of a guilty a mind because of flight, but it is evidence of coherent behaviour which would cut across any submission that the accused could not form the appropriate intentions.
8Mr Preston pointed out that when the gun was found there were no bullets left in the magazine which indicates that the accused may have gone through the procedure of emptying the bullets after he discharged the gun. The basis of putting that submission is that Brevet Sergeant Tobiasen gave evidence that because of a malfunction in the spring of the gun, there would always be some bullets remaining and therefore for there to be no bullets in the magazine must have required specific attention by the accused. However, I reject that argument. Brevet Sergeant Tobiasen was not certain of the nature of that malfunction and a submission in those terms relies on an unsafe amount of conjecture.
[20] T144.
[21] T75.
Mr Preston’s overall submission is that if one is to look at the surrounding circumstances on all counts (other than the alternative counts), a clear intention to kill has been proved.
Mr Preston emphasises that impulsiveness or disinhibition because of the effects of drugs and alcohol is not a defence if an intention to kill has been proved.
Defence submissions
The defence case as submitted by Mr Boucaut SC is that there is no dispute that the accused shot at and killed Lewis McPherson and fired a number of other shots. However, Mr Boucaut submits that it has not been proved beyond reasonable doubt that the accused did so with the required intention. He makes the following submissions:
1Mr Boucaut puts that the prosecution suggestion that the accused emptied the gun after the shooting showing an awareness is merely speculation. As I have indicated, I agree with that submission.
2There is no evidence that the accused went and fetched the handgun before going outside as distinct from having it all the time. In my view, the evidence supports that submission.
3He submitted that just because the person, the accused in this case, deliberately shoots at another person that that does not mean that he has an intention to kill. Mr Boucaut emphasised Dr Raeside’s evidence about the gap between the basic intention to shoot and the realisation of the consequences and puts that that is appropriate in this case.
4He points out the bizarre features of the behaviour of the accused which indicate that there was no intention to kill. The more important of those bizarre features as mentioned by Mr Boucaut are:
(a)He seemingly had no quarrel with his victims.
(b)The fact that there is evidence that there were four shots might indicate a spraying effect of bullets which is contrary to an intention to specifically kill.
(c)The distances between the accused and his alleged victims when firing are imprecise.
(d)The strange evidence coming from Mr Trewartha that before firing he said words to the effect of, “Give me my wallet” or “Give me your wallet” when there was no suggestion of robbery indicated his altered mind.
(e)The evidence of a number of witnesses mentioned above as to his state before the shooting indicates he was grossly affected by alcohol.
(f)A further bizarre area of testimony is his firing of shots in Dunrobin Road at a car.
(g)His returning to the scene is not consistent with murder.
(h)His behaviour in going back to the scene where the deceased was lying in a wounded state and pressing the gun into his body indicates his altered mind. Mr Boucaut then made submissions on whether the evidence of Mrs McGillick about what she heard upon the accused’s return to the scene are to be accepted, but nevertheless he puts whether the accused said those words or not just his returning to the scene in the way he did indicates bizarre behaviour.
(i)Exhibit P10 itself is testimony to his incoherence indicating a lack of intention.
(j)Mr Boucaut put that the evidence of both the medical witnesses at least support the possibility that he did not form the appropriate intention when killing Lewis McPherson and when shooting at Mr Lamont and Mr Trewartha.
Conclusions
I have studied the evidence very carefully and have considered intently the careful and helpful arguments of counsel in this serious and tragic matter. In particular, I have studied carefully the contents of the footage shown in Exhibit P10.
I have clinically and objectively assessed all of the evidence.
I have put aside understandably subjective feelings such as the loss of an innocent young man’s life. I have set aside my feelings of indignation and horror that a young man, affected by drugs and alcohol, had access to a loaded weapon which he has openly taken onto a public street and discharged four or five times. There was every chance that as many as four people could have been killed on that evening.
I cast those thoughts aside and confine my deliberations to the specific issue I have to decide; has it been proved beyond reasonable doubt that when the accused shot and killed Lewis McPherson, did he intend to kill him or at least cause him grievous bodily harm?
When he shot at James Peter Lamont and Liam John Trewartha, has it been proved beyond reasonable doubt that he intended to kill them?
I find it proved beyond reasonable doubt that the accused had the intention to kill all three people. The following proven circumstances lead me inexorably to that conclusion, namely:
1I find it proved from the evidence that the accused was grossly affected mainly by liquor, but also drugs.
2Although affected to that extent he was involved in a fight at the party with John Tilley‑Griffin, who was trying to get the accused to get his gun. However, the accused was capable of resisting until the fight was broken up.
3The accused left the party with a gun in his hand. I accept the evidence of Ms Woollard that she told the accused to put the gun down as he was leaving the house but he turned around and told people there not to leave the house.
4I find it proved that the accused walked onto Sixth Avenue from Railway Terrace and verbally abused the three victims, calling them “fucking cunts”.
5I find it proved that the accused then cocked the weapon. I heard evidence from Brevet Sergeant Tobiasen as to how the gun would be cocked and I find it proved that he cocked it in that manner.
6I find it proved that the accused then pointed the gun in the direction of the three victims.
7I find it proved that the accused fired at the victim James Peter Lamont from a distance of about two metres.
8I find it proved that the accused fired at the deceased from a distance of about seven feet.
9I find it proved that the accused fired at the victim Liam John Trewartha from a distance of about eight metres, because Liam John Trewartha had moved away from the other two victims due to the threat of the accused coming towards them.
10I find that the accused’s anger and agitation were such that he went down to Dunrobin Road and, with his arm outstretched, fired at an oncoming vehicle.
11I find that the accused returned in anger and pressed the gun into the deceased’s chest while he was still alive. I give the accused the benefit of the doubt as to whether he said the words attributed to him by Mrs McGillick. If he did say those words they could not assist the accused’s defence despite their bizarre nature.
12I find that he had the presence of mind to flee from Probationary Constable Ross into Seventh Avenue and attempt to hide the weapon on top of the pergola at 11 Seventh Avenue.
13I have looked at Exhibit P10 carefully. Although when first spoken to by the police the accused was in a clearly drunken condition and spent most of the journey from the scene to the police station asleep, nevertheless he gave coherent answers. He told the police his age, his name, his date of birth and his home address. As the evening went on, he clearly improved but this was of course due to the effects of alcohol wearing off.
All of these factors that I have found proved lead me to the conclusion that it has been proved beyond reasonable doubt that the accused had the intention to kill on all three counts.
I add that even though the distance at the time of firing at Liam John Trewartha was in the vicinity of eight metres and greater than the distances when firing at the other two victims, nevertheless this occurred in the context of having fired at two other victims at almost point blank range. This indicates to me proof beyond reasonable doubt of a clear intention to kill Liam John Trewartha when firing at him.
I am cognisant of the opinions of the expert witnesses who gave evidence for both the prosecution and the accused.
I accept their evidence that there can be circumstances where the ingestion of alcohol and drugs can impair a person’s state and presence of mind to the extent that they may be incapable of forming an intention beyond that of basic intent. However, for the reasons I have given, I find it proved beyond reasonable doubt that such circumstances did not exist in this case.
Although his condition was one of gross intoxication and his behaviour was in many ways bizarre, nevertheless I find it proved beyond reasonable doubt that the accused had the intention on Counts 1, 2 and 4 to kill.
Verdicts
Count 1: Guilty.
Count 2: Guilty.
Count 3: Not applicable.
Count 4: Guilty.
Count 5: Not applicable.
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