R v Holder
[2018] SASC 169
•14 November 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HOLDER
[2018] SASC 169
Judgment of The Honourable Justice Vanstone
14 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with attempted murder and attempted aggravated causing serious harm with intent to cause harm in the alternative. A plea of guilty to count 2 was not accepted by the prosecution.
Trial by Judge alone - where the only issue was whether, when he stabbed the victim, the accused intended to murder her.
Held: Accused guilty of attempted murder.
Criminal Law Consolidation Act 1935 (SA) ss 11, 23(1), 270A; Evidence Act 1929 (SA); Juries Act 1927 (SA), referred to.
R v Zampogna (2003) 85 SASR 56, applied.
R v HOLDER
[2018] SASC 169Criminal: Trial by Judge Alone
VANSTONE J: The accused, Brian Holder, elected for trial by Judge alone upon charges of attempted murder and attempted aggravated causing serious harm with intent to cause serious harm. I am satisfied that his election has been made in compliance with the Rules made under the Juries Act 1927 (SA) and that there should be a trial before a Judge without a jury.
The charges appear on the Information as follows:
First Court
Statement of Offence
Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brian Holder on the 10th day of October 2017 at Port Lincoln, attempted to murder Kelly Jayne Akehurst.
Second Count
Statement of Offence
Attempted Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Sections 23(1) and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brian Holder on the 10th day of October 2017 at Port Lincoln, attempted to cause serious harm to Kelly Jayne Akehurst, intending to cause her serious harm.
It is further alleged that Brian Holder used an offensive weapon, namely a knife, to commit the offence.
Count 2 is laid as an alternative to count 1.
Upon his arraignments both on 2 July 2018 and 5 November 2018, the accused pleaded not guilty to attempted murder, but guilty to count 2. Counsel for the Director of Public Prosecutions indicated that the plea to count 2 was not accepted by the Director in satisfaction of the major charge. Accordingly, the trial commenced before me on 5 November 2018.
R v Zampogna (2003) 85 SASR 56 is authority for the proposition that where an accused person pleads guilty to an alternative charge but that plea is not accepted by the prosecution, the plea is deemed to have been withdrawn. Accordingly, the accused stood trial before me for both charges.
Having said that, the single issue in dispute in this trial is whether the prosecution has proved beyond reasonable doubt that the accused intended, not merely to cause serious harm (as, by his plea to count 2, he admits) but to kill Ms Akehurst.
Background
The accused is 69 years of age. He is a legally qualified medical practitioner. He graduated from the Adelaide University in 1972 and, since completing his time as a resident medical officer, has worked at the Reynella Medical Centre. He is married with one adult daughter. In October 2017, the accused and his wife lived at Urrbrae, an Adelaide suburb.
The victim is 28 years old. She lives in Port Lincoln. She is a pharmacist by training and has worked in that capacity for about 15 years. In October 2017, she was working at three different but linked pharmacies in Port Lincoln including at the Terry White pharmacy in Liverpool Street, where the incident giving rise to the charges occurred.
Prior to the date of the incident, the accused and Ms Akehurst (“V”) were known to each other only by name. It is common ground that the background to this incident was a report made by V to the Australian Health Practitioner Regulation Agency (“AHPRA”). V gave evidence that on a particular Saturday in April 2017 she dispensed eight prescriptions for eight different individuals, all indigenous women from Port Lincoln, written by Dr Holder, who, she knew, was based in Adelaide. Computer records showed V that these patients had a local doctor. The prescriptions were for high quantities of diazepam and oxazepam (which are benzodiazepines) and panadeine forte (which contains codeine). All or most of the prescriptions were endorsed in terms of what was referred to as “regulation 24”, which allows the pharmacist to dispense the original prescription together with any repeat prescriptions. Additionally, V noted, they were all “private scripts”, which, because they attracted no government subsidy, were said to be harder for the authorities to trace.
V said that on this day she tried to telephone Dr Holder, but found his surgery closed. Later, in May, V made a report to AHPRA regarding these prescriptions. The original report was verbal. She was told it was best to put the report in writing. V was told that there was scope to indicate whether she was prepared for her name to be disclosed. This, it was said, would expedite the referral and it would “carry more weight”. Accordingly, V authorised release of her name. Later she was asked to forward Dr Holder’s dispensing history with the pharmacy, which was lengthy.
In late June, an officer of AHPRA wrote to Dr Holder enclosing a copy of V’s notification and advising that the Medical Board of Australia had decided that it was necessary to conduct an investigation. V’s full name, but no other details, appeared on the notification document, which is within exhibit P14. Later the name of the Liverpool Street pharmacy was provided to the accused. In late September, following conclusion of the investigation, Dr Holder was advised of draft conditions relating to his ability to prescribe what were called “schedule 4 medicines”, which include those concerned in V’s notification.
On Sunday 8 October 2017, the accused stayed at the Novotel Barossa Valley resort, near Tanunda. On 9 October, the accused travelled from the Novotel to Port Lincoln. He checked in for one night at the Port Lincoln Hotel. He had with him a filleting knife with a blade of about six inches, still in its packaging. From the AHPRA documents which had been sent to him, he knew V’s name and at least one of the pharmacies at which she worked. He also knew V’s home address, having instructed and paid a private investigator to ascertain it for him. On the following morning, he telephoned one of the pharmacies and ascertained that V was working at the Liverpool Street pharmacy on that day. He bought a bouquet of carnations. He went to the Liverpool Street pharmacy at about 5.00 pm. The knife, now out of its packaging, was carried, concealed, under his suit coat. He asked an attendant at the counter for V and was told that she was on the telephone but would not be too long. He moved well away from the counter, nearer to the entrance, and waited.
When V approached him, he told her he had flowers for her. He put his right hand into his jacket and pulled out the knife. A struggle then occurred between the two of them, in which V sustained three lacerations and bruising and swelling to her left arm and hand. These could be termed “defensive injuries”. A witness intervened. The accused then ran out of the pharmacy, to his motor vehicle, and drove away. The events within the pharmacy were caught on closed circuit television (“CCTV”) by three different cameras.
None of the facts set out to this point are the subject of dispute and I make findings in terms of them.
Prosecution case
Counsel for the prosecution argues that proof that the accused intended to kill V is found in the CCTV footage, standing alone. However, the prosecution also points to a number of items of evidence which, it is contended, fortify that conclusion. It is convenient to summarise some of those evidentiary matters by way of a chronology:
2017
Time
28 June
AHPRA writes to the accused advising of V’s notification and of the need to conduct an investigation. The accused is invited to meet with the investigator. V’s name is given. The accused is advised, “It is not appropriate for you to discuss this matter with the notifier”.
11 July
The investigator confirms that the accused will meet with her and AHPRA’s clinical advisor on 19 July.
13 July
The accused writes a document providing some of the circumstances of the women to whom the prescriptions were given and advises he is “deeply embarrassed by my action which is out of character with my normal prescribing”.
19 July
The accused, his representative from Avant Law, the investigator and AHPRA’s clinical advisor meet. The investigator advises that she plans to conduct further investigations, including reviewing Medicare data.
22 September
AHPRA writes to the accused advising that the Medical Board of Australia is proposing to impose conditions on his registration. The reasons for this are said to include his prescribing to the patients identified in the notification “and numerous other patients”. Reference is made to histories received from “pharmacies close to [his] place of practice”, and to “a pattern of excessive prescribing of schedule 4 medicines”. A schedule of conditions is enclosed.
26 September
9.45 am
The accused makes an online booking for a room at the Port Lincoln Hotel for the nights of 8, 9, and 10 October.
26 September
Avant Law writes to AHPRA submitting that the proposed conditions are “too harsh” and offering the accused’s undertaking to restrict his prescribing of schedule 4 medicines to his own patients who are aged over 65 years.
27 September
2.37 pm
The accused causes an online booking to be made for a room at the Novotel Barossa Valley Resort, near Tanunda.
29 September
AHPRA advises the accused’s legal advisor of proposed conditions and invites any submission tending against its proposed findings or conclusions.
4 October
Avant Law advises AHPRA the accused does not wish to make a further submission.
6 October
AHPRA advises Avant Law that the conditions will be imposed.
8 October
3.52 pm
The accused checks into the Novotel Barossa Valley Resort.
8 October
5.25 pm
The accused telephones the Port Lincoln Hotel to advise that he will not be arriving until the following day.
9 October
3.22 pm
The accused checks into room 505 of the Port Lincoln Hotel.
9 October
pm
The accused goes to the shopping centre in which the Liverpool Street pharmacy is located and sights it.
10 October
am
The accused drives past V’s house.
10 October
11.00 am
The accused calls Sampson Ringvall pharmacy to find out where V is working this day.
10 October
12 noon – 1.00 pm
The accused goes to the Golden Sable florist in Port Lincoln and selects carnations to be arranged in a bouquet.
10 October
2.42 pm
The accused, now wearing tracksuit pants, attends at a post office and sends an Express Post package to his wife. Among the contents are a suicide note addressed to his wife and daughter, and some financial and insurance records.
10 October
pm
The accused attends at the reception of the Port Lincoln Hotel and seeks assistance to open the packaging containing the knife. While putting the knife into its black sheath, he says words to the effect “It’s not like I am going to stab anyone with it”.
10 October
5.11 pm
The accused, now wearing a suit and carrying the bouquet of carnations, enters the Terry White pharmacy on Liverpool Street, approaches the dispensary area and asks an attendant, “Is Kelly Akehurst here?”. He is told that she is on the telephone but will not be too long.
None of these events is in dispute and I make findings in terms of them.
The prosecution alleges that the CCTV footage shows that the accused violently attacked V with a great deal of determination and was only thwarted by the effectiveness of steps taken by V to defend herself, together with the actions of a customer who took hold of the accused’s belt and pulled on it with all her might. The accused, himself, acknowledged in evidence that he felt people “trying to grab” him and decided he needed to get away. The accused ran from the pharmacy. A bystander, who was sitting in his car in the car park, observed the accused running out with a woman chasing him. The woman yelled, “That man stabbed a lady in the chemist”. At that, the bystander left his car and ran after the accused. He saw him enter a sedan and attempt to shut the door. The bystander pulled open the door and tried to pull the accused from the car. The bystander saw a knife on the front passenger seat and saw the accused put his left hand on it. At that, the bystander backed away and the accused drove forward, colliding with another vehicle, but making his escape. The registration number of his car was taken.
The accused returned to room 505 of the Port Lincoln Hotel. Police later found him there, barely conscious and plainly having taken a number of insulin injections and some other drugs. In the room was found another suicide note, again addressed to the accused’s wife and daughter, but in briefer terms than the one which had been sent to them. He was ultimately taken to the Royal Adelaide Hospital.
The accused’s motor vehicle was found in the car park of the Port Lincoln Hotel. The knife, its sheath, and the bouquet were all within the car.
The prosecution alleges that this sequence of events demonstrates that, contrary to assertions he made in evidence, the accused bore V deep resentment and anger and saw her actions as giving him a powerful motive to take her life, before taking his own.
Defence case
The accused gave evidence in his defence and called two character witnesses.
The accused said that throughout his life he had entertained suicidal ideation. In 2017, he was taking medication for diabetes, heart problems, depression, and anxiety. In that year, he had increasing physical symptoms of stress. For example, he was flushed, was permanently sweating and had a tight chest, a “churned up abdomen” and an irritable bowel.
He said that his suicidal thoughts arose from his feeling of being unconnected with the world. He was unemotional. The birth of his daughter kept his marriage together and kept him from killing himself, because he felt the responsibility of providing for his wife and daughter. He said he could not relate to people and had no social skills, although he had a longstanding friend who was at medical school with him, Dr Hearn. His diabetes was first diagnosed about 20 years ago. He had been taking benzodiazepines at night for a long time and he was prescribing those for himself, although a psychiatrist whom he saw two or three years ago was aware of this.
In 2016, the practice in which he worked was bought by the son of one of his partners and from that time on he was self-employed within the practice.
When he received the AHPRA notification, he said he knew exactly what would happen, having been aware of AHPRA’s dealings with other doctors. He thought that it would virtually end his practice and that he would most likely kill himself. He had always thought he would do that by way of an overdose of insulin. He noted the name of the person who made the complaint to AHPRA from some of the correspondence which was sent to him early on. He said he was “a little bit angry” but understood why it had been done. He also said that he did not have any feelings about her personally.
About two weeks before 10 October 2017, he thought of going to Port Lincoln to confront the pharmacist and explain to her what effect her actions had had. He had in mind to “make her feel a little bit guilty”, but he said at no stage did he think of killing her or indeed harming her.
He said the Barossa Valley booking was made after he and his wife agreed that they needed some time apart. In the week before leaving for the Barossa, he acquired the knife from a store to which he had never previously been, on the South Road. Asked why he did that, he said:
That was a – for some reason I thought that I was going to kill myself, I was going to have a confrontation in some way with the pharmacist. I didn’t know what was going to happen. For some reason there was some idea in my mind that it just seemed a good idea at the time. I thought that if the confrontation went badly I might be able to use the knife. If there was a kerfuffle or I wanted to get away from the area I may be able to wave the knife around and get away. I think I also thought that if I wasn’t able to take the insulin overdose then I was prepared to use the knife on myself.
The accused said it was not until he reached Port Lincoln that he took steps to see if V was there, although he had made enquiries to ascertain where she lived prior to leaving Adelaide. In relation to the purpose of buying the flowers, he said:
It was going to be more a sarcastic sort of thing saying, you know, ‘Look what you helped do to me. Have some flowers for it’. It’s – part of my nature is to be a little bit sarcastic.
The accused said he had in mind that he would kill himself in the Port Lincoln Hotel with an overdose of insulin.
In relation to attending at the pharmacy, he said that he anticipated that V would be behind the counter. He had no intention of using the knife against her. When he was told she was on the telephone, he moved back to an area that he thought was out of the way because, he said, “it was quite busy”, and waited there for her. He thought the knife was in his belt on his left side. He said that while waiting there he became increasingly anxious. He had planned to say to V who he was, but when V came up to him he only said, “These are for you”. He tried to say something else and the next thing he recalled was someone saying, “He’s got a knife”. He said he had no recollection of making a decision to take out the knife but thought he “vaguely remembered” stabbing at V. Then he recalled her hands grabbing both of his and feeling some hands on the back of him and he thought that people were trying to grab him, so he decided he had to get away. He said he was “obviously intending to stab her” while he was doing so. He said it was “almost a subconscious decision that I do not remember making”. He denied trying to kill V. He only remembered the first stabbing motion.
The accused said he could not recall going to his car or to the hotel room. He next recalled looking at the door of room 505 from the outside. When he went inside, he started using the insulin and he also injected some pethidine. His next recollection was of waking up in the Royal Adelaide Hospital.
In cross-examination, the accused admitted that after the AHPRA notification he had written in response to say that he was “deeply embarrassed” by what he had done and that it was “out of character”. He said that his letter was “a bit farcical”, that it was not genuine in those respects. He said that, were he denied the right to prescribe benzodiazepines and codeine, it would probably not end his practice because he could acquire other patients in the busy practice. However, he said he would not be prepared to practise under those conditions. He denied that he blamed V for his predicament. He said he was not thinking about her. He thought she had done what she thought was her duty and that it was “reasonable and appropriate from her point of view”.
He said he did not think of merely writing to V. He was not thinking very well at that stage. He had not told his wife of the AHPRA intervention. While he respected AHPRA’s role, he disagreed with its philosophy, but he was prepared to accept that AHPRA had the power to impose conditions and to abide by its ruling.
The accused said he had prepared both suicide notes in the week before he left and had printed them at his work premises. In relation to the suicide note which he posted to his family members, he was asked about the last sentence which read, “Do not show this letter to anyone especially police, coroner or insurance company or speak to the media”. Asked why he might have expected the media would become involved, he said he did not know why he had put that, except that perhaps he thought his suicide might reach the papers; notwithstanding his recognition that usually suicides were not reported.
The accused said that he thought if the conversation with V got heated, or if she got upset or seemed distressed, it might be necessary to wave the knife around to get people to step aside. However, he acknowledged that if she became upset he could easily have walked away. He agreed that there was no obvious reason why, if he simply made his rehearsed speech to V, anyone would prevent him walking away.
The accused acknowledged that he had employed a private investigator to find out V’s home address. He said visiting her at her home was merely one of lots of options. He said he did not consider going to her home once he got to Port Lincoln: 138. Asked why he decided that going to her work address was the better option, he said it was more convenient to see V in a public place with lots of people around. However, at this point he acknowledged that he had driven past V’s home on the morning of 10 October: 139. He then acknowledged that he had also gone to the pharmacy on the preceding day to “check out” where it was.
The accused said at 148 that once he saw V, his plan was to explain who he was and to say:
… that this report came when there were significant other stressors in my life and it added to them and virtually ended my medical career and, to me, that’s the end of my life and I’m about to go and kill myself, was the sort of pre-arranged conversation – well statement I’d had.
He said he only thought of the possibility of giving flowers to V in the last couple of days. He agreed that he changed into a suit before going to the pharmacy, saying he wished to “look presentable” to her but also, when lying dead, did not want to look too scruffy. He agreed that, in the end, he was found by police without either suit pants or jacket.
The accused said that when he made the comment to the Port Lincoln Hotel receptionist, “It’s not like I am going to stab anyone with it”, his aim was to be “witty or funny” and that stabbing someone was not on his mind.
Asked again about the latter part of the incident, he said at 158:
As I said, my memory is that she or someone – I think they’re both my arms and constrained me. And I think – it’s a bit hard to say from what I remember and what I saw ... I stumbled backwards a little bit. In fact, she was pushing me a little bit but I don’t really remember – on the footage it shows us stumbling quite markedly to the right but I don’t remember doing that. I just remember that and then feeling the hands on my back and then trying to get away.
As mentioned, the accused called two character witnesses. The first was Dr Gregory Hearn, who claimed a friendship with the accused during their university days and ever since. He spoke to the accused’s good reputation among people who knew him, his integrity, his reputation for having a strong work ethic and for providing financial security for his family. I accept that Dr Hearn was genuine in the evidence he gave to the Court.
The accused also called Alberta Dowling. Ms Dowling said that she knew the accused through their respective daughters being at school together and becoming firm friends. This had led to a friendship between the families. Ms Dowling said she moved to Melbourne in 2007 but often returned to Adelaide and would see Dr and Mrs Holder. She said that the accused was regarded as an “incredibly gentle, caring and dignified man”. I accept the genuineness of Ms Dowling’s evidence.
Mr W P Boucaut SC, for the accused, put that the CCTV, which was an essential part of the prosecution case, did not, of itself, prove attempted murder. He pointed to the difficulty of proving attempted murder, as opposed to what was required to be proved for count 2. He contrasted the careful preparation the accused made for his planned suicide with the “clumsy and inept” attack on V.
Mr Boucaut submitted that the reference to media in the suicide note could be referable to a planned or feared violent confrontation short of an attempted murder, or a verbal altercation followed by suicide.
The use of the flowers, he submitted, was consistent with their use to identify V and did not assist in proof of the charge. The knife and its purchase was consistent with an intention to harm, or hit out, but without the specific intent to kill.
The attack itself was, he put, neither continued nor prolonged, such as one might see if the accused set out to murder V. In addition, the pharmacy was an odd place to choose if he really planned to kill the victim.
Consideration
As already observed, the only issue in the trial is whether the prosecution has proved beyond reasonable doubt that when the accused stabbed and stabbed at V he intended to kill her.
The accused is presumed to be innocent of attempted murder. If there is a reasonable possibility that his intention was anything less than an intention to kill, then he must be acquitted of count 1.
I find beyond reasonable doubt that the other elements of attempted murder are proved beyond reasonable doubt. That is, I am satisfied beyond reasonable doubt that the accused performed acts of violence towards V (in the nature of stabbing motions directed to her body) which were both voluntary and deliberate, and which went beyond mere preparation, and that those acts were unlawful.
The sequence of events leading up to 10 October, which is largely found in the chronology I set out earlier in these reasons, tends to suggest a plan made as early as 26 September to go to Port Lincoln and see V. The accused acknowledges he had no other reason to travel there. Nonetheless, the accused said in evidence that, even when he was at the Barossa resort, the idea of going to Port Lincoln was still only “the most likely option”. Before leaving Adelaide, he had purchased the knife, printed the two suicide notes – one containing an instruction to his wife and daughter not to communicate with the media – ascertained V’s home address and made the booking at Port Lincoln.
The accused denied in cross-examination that he blamed V for his predicament. He said that he understood that she had done what she thought was her duty and that she would have seen it as being “reasonable and appropriate”. He also said that he respected the role of AHPRA, even though his philosophy was different from that of the AHPRA officers. It is difficult to reconcile the accused’s claimed attitude to V with his actions towards her; indeed, even with a wish on his part to tell her what impact her actions had upon him. His purchase of a knife, his instruction to a private investigator to ascertain her home address, and his preparedness to drive for six hours or so to Port Lincoln to see her tend against his evidence that his attitude to her was one of indifference.
Even if the accused was determined to communicate with V, he could have done that by letter or telephone. There was nothing about the speech he claimed to have prepared which required its personal delivery to her.
Indeed, his claimed reason to have taken the knife with him to the pharmacy – that if there were a “kerfuffle” and he wanted to get away, he might be able to wave the knife around – does not bear scrutiny. If all that occurred was a perhaps unpleasant verbal confrontation, it was hardly likely that anyone would attempt to detain him. I do not accept Mr Boucaut’s submission that the purchase of the knife might indicate an intention merely to harm or hit out at V. That is contrary to the accused’s evidence in any event. The knife is plainly a lethal weapon. It was selected by the accused with obvious forethought.
Similarly, his explanation for taking the flowers with him lacks credulity. He described it as a sarcastic gesture, as if to say, “Look what you helped do to me. Have some flowers for it”. To me that makes no sense. On the other hand, as it turned out, the bouquet was useful as a pretext for asking for V and luring her from the safety of the dispensary or counter and also to shield his production of the knife from under his suit coat. While I agree with Mr Boucaut that the flowers were a useful tool to identify V, their role appears more sinister than that. Nonetheless the purchase and use of the bouquet is but one circumstance.
The accused claimed that his comment to the receptionist who was uncomfortable helping him remove the knife from the packaging was simply an attempt to be witty. If the idea of stabbing someone was not on his mind, I think it surprising that he would say such a thing.
Of great significance in terms of his true intention during this incident is how the incident ended. The accused did not simply desist in his attempts to stab V’s body. His attempts failed first, because V was plainly younger and stronger and was able to hold his right arm, which held the knife, away from her, second because he was either pushed by her or stumbled into the X Lotto counter near to the doors and third, because of the extremely brave customer taking hold of his belt and pulling it. The accused broke free from the customer’s hold, which sent her reeling backwards. By then, he was on his way out. This aspect of the event is shown clearly on the CCTV as, indeed, is the entire interaction. It is powerful evidence.
I reject the submission that this was a clumsy and inept attack. There is much about it that shows careful planning. Moreover, as I said, the accused was defeated; he did not just abandon a half-hearted assault.
Against the considerations I have just set out is the accused’s sworn evidence that he did not, at any stage, intend to kill V.
In considering that evidence I have taken into account the evidence of his two character witnesses. Usually, character evidence can go not only to the credibility of the accused, but also to the issue of whether he committed the crime. In this case, because the accused pleaded guilty to count 2 which, of itself, is a very serious crime, the character evidence seems to me to be confined in its relevance to the issue of the accused’s credibility. I have taken into account that evidence and particularly what Dr Hearn said about the accused’s integrity. I have also taken into account that he is a man of 69 years of age with a long record of serving the community as a doctor and that he has no relevant prior convictions. Notwithstanding these matters, I was unimpressed with the accused’s evidence. In his dealings with AHPRA, the accused showed himself to be prepared to lie to advance his own interests. He admitted that in advising AHPRA, in writing, that he was deeply embarrassed by his actions and that they were out of character with his normal prescribing, he was untruthful. Even now, he seems to consider that his prescribing was appropriate. He was not embarrassed by it. Further, it was not at all out of character, as the later investigations of AHPRA revealed. The accused himself described that letter as “farcical”. It was written in an attempt to forestall any further examination of his prescribing history.
There was another instance, this time in his evidence, which I considered to show a preparedness to be untruthful. In evidence-in-chief, the accused agreed that in the week before he went to Port Lincoln he had made enquiries to ascertain where V lived. In cross-examination, he denied considering going to her house once he got to Port Lincoln. He repeated that he had considered going to her house, but that was an option before he went to Port Lincoln. However, he went on to say, inadvertently, that her work address was “much closer” than her home address and that led him to have to acknowledge that he had driven past her home address during the period at Port Lincoln. During this passage of evidence, I noticed that the accused was acutely embarrassed, that being demonstrated by profuse blushing. I considered that he felt that he had been caught out. He then also admitted that he had “checked out” the pharmacy on the day before. The picture which emerged was of a very calculated approach to whatever plan he had in mind.
An interesting feature of the CCTV footage is that, initially, the accused approached the dispensing counter and asked for V. Having been told that she was on the telephone and would attend presently, the accused moved well away from that counter and much closer to the front doors. He said in evidence that this was because the area adjacent to the counter was crowded. The footage does not bear that out, but in any event that would not explain why he moved away from it. Presumably, if he wished to make V feel guilty, it could just as well be done in front of her work colleagues and customers. In fact, the position he took up gave him a degree of space in which to confront V and also a ready getaway through the front doors.
I considered the accused to be an obviously intelligent man who had thought carefully about his account of events. However, I considered his explanations for his conduct leading up to 10 October to be implausible, and his account of the event itself to be contradicted by the CCTV footage. That shows violent and repeated strikes at V’s body with the knife. It shows that the attack commenced as soon as V presented herself to the accused. It demonstrates that the accused was single‑minded and determined.
Findings
I am satisfied beyond reasonable doubt that the accused went to the Liverpool Street pharmacy with the intention of killing V. I am satisfied beyond reasonable doubt that once there, he put into action the plan he had developed, and followed it. I reject his sworn denials to the contrary. He was only prevented from fulfilling his aim by the victim’s strength and determination to ward him off, and by the intervention of the customer whom I mentioned earlier. While V sustained what might be called minor injuries, that was not because of a want of determination on the accused’s part; his own physical limitations hampered the fulfilment of his scheme.
I have reached that position on the whole of the evidence and notwithstanding the accused’s evidence that he did not form an intention to kill at any stage. I have borne in mind that if there is a reasonable possibility that he did not have the relevant intention at the time of performing the acts of violence towards V, then he must be acquitted. However, on the basis of the powerful evidence provided by the CCTV footage, combined with all the other evidence, I am satisfied that the accused formed a profound resentment towards V and carefully formulated a plan over a period of a couple of weeks to attack and kill her with the lethal weapon purchased, I find, solely for that purpose.
I am satisfied beyond reasonable doubt that the accused attempted to murder Ms Akehurst.
Conclusion
I find the accused guilty of attempted murder.
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