R v Hutchison & Wilkinson - [2018] NSWSC 1759

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Hutchison & Wilkinson [2018] NSWSC 1759
Hearing dates: 13 August 2018 - 20 August 2018; 24 September 2018 - 24 October 2018
Date of orders: 16 November 2018
Decision date: 16 November 2018
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) Hutchison, verdict of not guilty of murder but guilty of manslaughter.
(2) Wilkinson, verdict of not guilty of murder but guilty of manslaughter.

Catchwords:
CRIMINAL LAW – trial by Judge alone – killing by ex-wife following bitter family law dispute – reasons for decision – relevant legal principles – where deceased hoodwinked and ambushed – where allegations of child abuse made to accused – where accused survivor of childhood sexual assault – where accused not believed as a child – attempt to extract confession by violent means – where accused suffered various mental conditions – where conditions arose out of abuse – self-defence – defence of others – substantial impairment – loss of self-control – community standards – community understanding of impact of child sexual abuse – motive – where obscene text messages showed considerable animosity towards deceased – love/hate – unfiltered stream of consciousness – whether hatred and disappointment true motivation for killing – whether defence of children and substantial impairment used as a convenient excuse to kill a man she hated

CRIMINAL LAW – weird aspects of evidence – exorcism – flying saucers – where deceased a demonologist, exorcist and ghost hunter – whether exposing young children to bizarre paranormal activity – discombobulating for a child – whether relevant to mother’s claim of defence of others – where accused said to be “pagan white witch” – voodoo doll – spells
CRIMINAL LAW – joint criminal enterprise – whether co-accused fiancé party to joint criminal enterprise – intention – where intention of principal offender changes – where ex-wife committed most acts of violence – loss of self-control by co-accused – admissions – consciousness of guilt
Legislation Cited: Criminal Procedure Act 1986, ss 133 and 306ZI
Crimes Act 1900, ss 23A and 418-423
Evidence Act 1995, ss 54, 60, 87, 136, 165 and 191
Family Law Act 1975 (Cth), s 121
Cases Cited: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
B v R [2015] NSWCCA 103
Campbell v The Queen (1981) WAR 286
Chamberlain v The Queen [No. 2] (1984) 153 CLR 521; [1984] HCA 7
Colisimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCCA 293
Flanagan v R [2013] NSWCCA 320; (2013) 236 A Crim R 255
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Miller v R; Smith v R; Presley v Director of Public Prosecutions (SA) (2016) 259 CLR 380; [2016] HCA 30
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217
R v Brooks [2017] NSWSC 188
R v Crabbe (1985) 156 CLR 464; [1985] HCA 22;
R v Dziduch (1990) 47 A Crim R 378
R v George O’Neil (Court of Criminal Appeal (NSW), 13 August 1992, unrep)
R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513
R v Jovanovic (1997) 42 NSWLR 520
R v Lloyd [1967] 1 QB 175
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Poynton (No. 3) [2017] NSWSC 1772
R v Quinn (No 2) [2016] NSWSC 1244
R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455
R v Simmons (No 7) [2015] NSWSC 574
R v Thomas Taig Lynn [2004] NSWCCA 222
R v Trotter (1993) 35 NSWLR 428
Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140
Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66
Webb and Hay v R (1994) 181 CLR 41; [1991] HCA 30
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
Texts Cited: Anvi Mehta (ed), Macquarie Dictionary (online ed, at 6 November 2018)
Gatti and Krishnamachariar, Wills’ Principles of Circumstantial Evidence (7th ed, 1936, Butterworth & Co)
Category: Principal judgment
Parties: Regina
Raquel Hutchison
Paul Wilkinson
Representation:
Counsel:
M Cunneen SC (Crown)
B Rigg SC & S Beckett (Hutchison)
M Ainsworth (Wilkinson)
Solicitors:
Director of Public Prosecutions NSW (Crown)
Blair Criminal Lawyers (Hutchison)
McGirr Lawyers (Wilkinson)

File Number(s): 2014/00308895 (Hutchison)2014/00308929 (Wilkinson)
Publication restriction: See R v Hutchison & Wilkinson (No 3) [2018] NSWSC 1758. (1) Suppression order over the surname of the deceased and the children who gave evidence in the trial. (2) Non-publication order over the contents of exhibit H-15. (3) Pseudonyms to be used.

Judgment

On 20 October 2014, hoodwinked by a ruse perpetrated by his ex-wife, Brett Walker (a pseudonym) left work early and returned to his home in St Marys. Soon after arriving home, Mr Walker was ambushed and severely beaten. The precise order of events is not known; will probably never be known. His airways were compromised and he died of asphyxia and craniofacial trauma. He suffered many injuries including a broken nose, black eyes, multiple bruises and abrasions, and injuries probably inflicted by a low voltage Taser, cattle prod or similar electrical device. An electrical cord, or cable of some kind, was used as a ligature around his throat. There was a distinct linear abrasion on his throat. He aspirated food into his lungs. His precise time of death is not known, but about five or six hours later he was left by the side of an isolated dirt road about 20 or so kilometres north of Wisemans Ferry. He was taken to this location in the boot of a car and dumped there by his ex-wife Raquel Hutchison and her fiancé Paul Wilkinson. Those are the facts of the case. They are not disputed.
Mr Walker’s body was found by a Mr John McBain at about 7:00am the next day by the side of a dirt road called Mangrove Creek Road, Greengrove (a little north of Wisemans Ferry). A pathologist attended the scene at 1:30pm. The body was stiff with rigor mortis and was very cold. Mr Walker had been dead for many hours, somewhere between 12 and 24 according to the pathologist. There is some controversy as to whether he was alive or dead when he was placed in the boot of Mr Wilkinson’s car and when he was left by the side of the road. For reasons I will explain, I am satisfied he was dead well before he was deposited at Greengrove.
Ms Hutchison and Mr Wilkinson are charged with Mr Walker’s murder. Their joint trial was conducted by Judge alone, spasmodically, between 10 August and 24 October 2018. There were some bizarre elements of the evidence adduced in the trial. This included evidence that Ms Hutchison considered herself to be a “white witch” and that she and her daughter composed spells and manufactured a “voodoo doll” of Mr Walker. It also included evidence of Mr Walker’s interest in demonology and ghost hunting. A video was tendered that showed Mr Walker purporting to perform an exorcism. However, the motivation and facts of the case are generally far more prosaic. Even so, these weird aspects of the evidence have relevance, although perhaps peripheral relevance, to at least one of the issues for determination.
The prosecution alleges that the two accused carried out a joint criminal enterprise to inflict, at least, grievous bodily harm on Mr Walker. It says that Ms Hutchison was motivated by hatred of her ex-husband because he was the victor in acrimonious family law proceedings and had custody of her children. It says that Mr Wilkinson acted to support his fiancé in the criminal enterprise. The prosecution relies on the number and nature of the injuries, along with things done and said both before and after the crime.
Towards the end of the trial (but before commencement of addresses), the Crown Prosecutor put an alternative case based on reckless indifference to human life. This alternative case was advanced against the possibility of a finding that Mr Walker was still alive when his body was placed in the boot of the car. That is what Ms Hutchison told two psychiatrists who interviewed her for the purpose of the criminal proceedings. Mr Wilkinson gave evidence that he thought Mr Walker was dead but did not check to be sure. On this alternative prosecution case theory, the failure to check on Mr Walker’s wellbeing and leaving him in the boot for a number of hours were acts and omissions demonstrating an utter disregard for whether Mr Walker lived or died. The alternative case is also based on the pathologist’s opinion that another significant condition contributing to death may have been “restraint”.
While both accused deny any intention to inflict grievous bodily harm or to kill, they otherwise conducted very different – and in some respects contradictory – defences. There is one significant body of evidence in Ms Hutchison’s case that was not admitted in Mr Wilkinson’s trial. This concerns accounts that Ms Hutchison gave to forensic psychiatrists who gave evidence relevant to her mental state at the time of the killing. In those accounts she said that Mr Wilkinson was involved in the physical altercation that led to Mr Walker’s death. Mr Wilkinson gave evidence and denied (almost entirely) being involved in the physical assault on Mr Walker. The version provided by Ms Hutchison to the doctors must be disregarded in Mr Wilkinson’s case. Mr Wilkinson’s evidence is admissible, but must be treated with caution, in Ms Hutchison’s case.

Ms Hutchison’s case

Ms Hutchison admits that she (and Mr Wilkinson) assaulted Mr Walker in his own home having gained entry without his consent. She agrees she lured him there by tricking him. She accepts that the injuries occasioned in the assault caused or contributed substantially to Mr Walker’s death. She agrees that she and Mr Wilkinson left the body by the side of the road near Wisemans Ferry. She told the psychiatrists that Mr Walker was “alive when we let him go” north of Wisemans Ferry and at a place where “it would be difficult for him to get home.”
However, Ms Hutchison says that she had no intention to inflict grievous bodily harm or to kill her ex-husband.
She also says that her conduct was carried out in defence of her two children who she believed were being abused by Mr Walker. She believed they were being abused because the children complained about being assaulted, either physically or sexually. Her intention in going to the premises was to try to extract a confession from her ex-husband that she could use in having him charged by police or otherwise having her children removed from Mr Walker’s care. The prosecution says that Ms Hutchison held no such belief; this was yet another ruse or deception calculated to justify her killing her ex-husband out of simple hatred and jealousy. It contends that Ms Hutchison manipulated the children into speaking ill of their father and, somehow, forced them to make false allegations against their father. It relies on a body of evidence proving that Mr Walker was, in fact, a good father as well as evidence suggesting that Ms Hutchison repeatedly asked the children whether their father had abused them and a direct assertion from one of the children, made shortly before the trial, that he thought his mother was “putting ideas in his head”.
Ms Hutchison also relies on the partial defence of substantial impairment. That is, she relies on the psychiatric evidence establishing she had an abnormality of the mind that impaired her in relevant ways and that justify the reduction of her criminal liability from murder to manslaughter. The prosecution submits that Ms Hutchison was not substantially impaired and, even if she was, the impairment was not so great as to warrant the reduction of the crime from murder to manslaughter.

Mr Wilkinson’s case

Mr Wilkinson gave evidence. He denies entering any joint criminal enterprise to inflict grievous bodily harm on Mr Walker. He denies being involved in the assault on Mr Walker except for throwing one punch in response to Mr Walker swinging his arm at him. For the most part he says he was outside while Mr Walker and Ms Hutchison were arguing and fighting. He came inside to attempt to break up the fighting. He says he left the premises to get his car and when he returned Ms Hutchison had a cord or something similar around Mr Walker’s neck. He tried to remove the cord and Mr Walker slumped down and did not again show any signs of life. He assumed he was dead. He agrees that he assisted Ms Hutchison in putting the body into the boot of the car and, finally, depositing it on a dirt road near Wisemans Ferry. He admits that he was part of the plan to extract a confession from Mr Walker and waited outside advising her by text message as to when Mr Walker was approaching the premises.
Mr Wilkinson’s primary position is that the prosecution cannot establish either that he had any intention to kill or inflict grievous bodily harm or that he entered a joint criminal enterprise to inflict grievous bodily harm. He played a very minor role in what went on inside the house and committed no act that contributed to Mr Walker’s death. While he knew some violence would be occasioned, the extent of the violence went well beyond any common purpose in which he was involved. He says he is not guilty of murder because the Crown cannot prove intention or the existence of a joint criminal enterprise involving murderous intent.
Almost no submissions were directed to the question of whether Mr Wilkinson might be guilty (or not guilty) of manslaughter by unlawful and dangerous act. However, assuming the prosecution fails to establish the specific intention required for murder, this alternative form of homicide may arise if Mr Wilkinson was party to a joint criminal enterprise to assault Mr Walker and the assault was both unlawful (in that self-defence is excluded) and dangerous (in the sense that the act carried with it an appreciable risk of serious injury).
Counsel also submitted that self-defence may arise in Mr Wilkinson’s case although the accused gave no evidence suggesting that he thought it was necessary to do what he (and/or Ms Hutchison) did to defend the children. Nor did counsel make any particular submission, based on the evidence, addressed to the issue of self-defence. Even so, I accept that there is evidence capable of giving rise to the issue and, if there was a jury, the issue of self-defence (upon which the prosecution bears an onus of disproof) would be left for its consideration. [1]

LEGAL PRINCIPLES AND ISSUES

1. Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 at 117-118 (Barwick CJ) and 133 (Menzies J); Flanagan v R [2013] NSWCCA 320; (2013) 236 A Crim R 255 at [76]; Colisimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCCA 293 at [19(2)].

Judge alone trial

The accused both applied for a trial by judge order. The Crown consented to such an order. Accordingly, I had no option but to grant the application and hear the case without a jury. [2] I am able to return any verdict that would have been available to a jury and those verdicts have the same effect as a jury verdict. [3] I must set out the relevant principles of law and findings of fact upon which those verdicts are based. [4] I must take into account any warning that a jury would receive. [5]
2. Criminal Procedure Act 1986, s 132(2); R v Hutchison, Wilkinson and Greentree [2018] NSWSC 1513.
3. Criminal Procedure Act 1986, s 133(1).
4. Criminal Procedure Act 1986, s 133(2).
5. Criminal Procedure Act 1986, s 133(3).
In spite of the apparently simple requirements and plain language in s 133(2) of the Criminal Procedure Act 1986, the High Court has held that more is required than simply setting out the legal principles and the findings of facts. For example, it is necessary to engage with the arguments made by counsel. [6] The requirements were considered by the High Court in Fleming v The Queen. [7] There must be more than a literal compliance with s 133(2) and the process of reasoning leading to the verdict must be transparent and clear. The judgment must expose “the reasoning process linking [the legal principles with the findings of fact] and justifying the latter and, ultimately, the verdict that is reached.”[8]
6. AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8.
7. (1998) 197 CLR 250; [1998] HCA 68 for example at [24]-[33].
8. Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28].

Separate consideration of each case, available verdicts and basis of possible verdicts

The trials of the two accused were conducted together as a matter of convenience. However, each case must be considered separately and based on the evidence admissible in each case. The nature of the “defence” conducted by each accused is different. In some instances, different legal principles arise. By way of example, the defence of substantial impairment only arises in Ms Hutchison’s case. Mr Wilkinson has raised his good character (in a particular respect) while there is no similar issue in Ms Hutchison’s case.
Further, there are some substantial differences in the evidence admitted against (and for) each accused. In particular, there is a significant body of (hearsay) evidence admissible in Ms Hutchison’s case that cannot be used – either for him or against him – in Mr Wilkinson’s case. A summary of telephone records was tendered (Ex OO) and only part of this is admissible against Mr Wilkinson. The parties agree that (i) the text messages sent by Ms Hutchison to Mr Wilkinson before 20 October 2014 are only admissible against the latter if he responded; and (ii) all text messages between the two on 20 October 2014 are admissible against Mr Wilkinson.
For these reasons, the factual findings in each separate case, and the verdicts for each accused, may be different. The fact that one accused is acquitted of a particular charge does not mean that the other accused must be acquitted of that charge. [9] However, if I have a doubt in relation to one accused, based on the deficiencies of evidence relevant to both accused, I must take that doubt into account in considering the verdict in relation to the other accused. [10] By way of example only, if I had a reasonable doubt as to whether Ms Hutchison formed an intention to kill or inflict grievous bodily harm, it is difficult to perceive of circumstances in which I would conclude beyond reasonable doubt that Mr Wilkinson acted with a murderous intent or was part of a joint criminal enterprise to murder Mr Walker.
9. See, for example, Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75.
10. R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290.
In each case, the possible verdicts are (i) not guilty, (ii) guilty of murder, or (iii) not guilty of murder but guilty of manslaughter. Based on the issues raised in each case, those verdicts arise in different ways. The following brief statement of the issues is based on the way the case was conducted, the concessions made concerning the acts causing or contributing to Mr Walker’s death, and the issues that truly arise.

Ms Hutchison

Ms Hutchison is guilty of murder if the Crown establishes the elements of murder and disproves self-defence and the accused fails to establish the partial defence of substantial impairment. She might be guilty of manslaughter on four different bases, namely (i) manslaughter by unlawful and dangerous act, (ii) manslaughter by gross or criminal negligence, (iii) killing in excessive self-defence and (iv) on the basis that murder is otherwise established but she establishes the defence of substantial impairment. She is not guilty altogether if the Crown fails (i) to establish the specific intention for murder and that the act or acts were not unlawful and dangerous, or (ii) the Crown fails to disprove that Ms Hutchison acted in self-defence.

Mr Wilkinson

Mr Wilkinson is guilty of murder if the Crown establishes the elements of murder and disproves self-defence. He might be guilty of manslaughter either by (i) unlawful and dangerous act, (ii) criminal negligence or (iii) excessive self-defence. He is not guilty altogether if (i) the Crown fails to establish that he did any act that caused the death of Mr Walker and fails to prove that he was part of a joint criminal enterprise to inflict violence upon the deceased or (ii) fails to disprove that he acted in self-defence.

Onus and standard of proof

With one exception, the Crown bears the onus of proof and that onus never shifts to the accused. The standard of proof is beyond reasonable doubt. The Crown is not required to prove every disputed fact beyond reasonable doubt. Nor is it required to prove the truthfulness and reliability of any or all of its witnesses beyond reasonable doubt. However, unless the prosecution establishes each and every one of the elements of the offence under consideration, the accused must be found not guilty. This is an extremely high standard of proof, probably the highest devised in any legal system. Even if I suspect the accused are guilty, or believe it is more likely than not that they are guilty, if there is any reasonable doubt on that issue, my duty is to find them not guilty.
Further, where self-defence arises, the prosecution must disprove or eliminate the defence beyond reasonable doubt. Again, this onus never shifts and is not affected by the manner in which the defence conducts the case.
The one exception to the axiom that the onus of proof never shifts concerns Ms Hutchison’s defence of substantial impairment. If the evidence establishes the elements of the offence of murder beyond reasonable doubt, and if self-defence is disproved beyond reasonable doubt, the onus shifts to Ms Hutchison to establish the defence of substantial impairment. However, the onus on the accused is to the lesser standard being proof on the balance of probabilities.

Elements of the offences

Murder

To prove the offence of murder, the prosecution must prove beyond reasonable doubt:

The accused did an intentional act.

The act caused Mr Walker’s death.

The act was committed with an intention to kill or inflict grievous bodily harm.

The accused did not act in self-defence.

Grievous bodily harm means really serious injury.
Alternatively, the Crown might establish murder by omission if it establishes beyond reasonable doubt:

The accused failed or omitted to do an act.

The omission caused Mr Walker’s death.

The accused acted with reckless indifference to human life.

To prove reckless indifference to human life, the prosecution must prove that the accused realised that Mr Walker’s death was the probable consequence of the act or omission, but continued nevertheless to do the act or omission (that is, failed to act). [11]
11. R v Crabbe (1985) 156 CLR 464; [1985] HCA 22; Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27.

Manslaughter

Manslaughter may arise because the liability for one or other of the accused is reduced by reference to a partial defence, in this case either excessive self-defence or (in Ms Hutchison’s case) substantial impairment.
It may also arise, in the form of what lawyers call manslaughter by unlawful and dangerous act, if the Crown fails to prove the specific intention required for murder but does establish the following elements beyond reasonable doubt:

The accused did an intentional act.

The act caused Mr Walker’s death.

The act was unlawful. Relevantly, this means that the act was not done in self-defence.

The act was dangerous in the sense that it carried with it an appreciable risk of serious injury. [12]
12. Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 at 333; R v George O’Neil (Court of Criminal Appeal (NSW), 13 August 1992, unrep).

Finally, it may arise if the prosecution establishes manslaughter by gross or criminal negligence. To establish such a case, the prosecution must prove the following elements:

The accused owed Mr Walker a legal duty of care.

The accused was negligent in that they breached that legal duty.

The breach of duty caused the death of Mr Walker.

The degree of departure from the standard of care expected was so gross or substantial that it is deserving of criminal punishment.

Manslaughter by gross or criminal negligence would only arise if I am satisfied beyond reasonable doubt that (i) Mr Walker was still alive when the accused put him in the boot of the car and (ii) obtaining medical help at that time would have saved Mr Walker’s life. The reason for this is that the negligence (or omissions) relied on by the prosecution is the failure to obtain medical treatment, putting Mr Walker in the boot of the car and failing to check on his wellbeing in the hours after they left St Marys on the first occasion. If Mr Walker was already dead, or if medical treatment would not have saved him, these omissions or negligent acts could not be held to have caused his death.

Joint criminal enterprise

Where two people act together to commit a crime, the principles of joint criminal enterprise or common purpose apply. The Crown asserts that Ms Hutchison and Mr Wilkinson formed a joint criminal enterprise to kill or inflict grievous bodily harm with that intention. If the Crown proves beyond reasonable doubt that there was such a joint criminal enterprise, each of the participants is criminally liable for the acts of the other participants that were within the scope of the joint criminal enterprise. It is essential that the Crown establish both the existence of the joint criminal enterprise and the fact that the particular accused under consideration participated in the joint criminal enterprise. Each of the elements of the crime must be established but it does not matter which of the participants committed each element. Such an agreement need not be express, and may be implied from all of the circumstances.
In a murder case based on joint criminal enterprise, it does not matter which of the participants committed the act causing death. Provided that the act was within the scope of the joint criminal enterprise, and the elements of murder are otherwise established, each of the parties to the agreement are liable to be convicted of murder.
In the present case, there is some evidence that Mr Wilkinson was not present when the act(s) causing death were committed by Ms Hutchison. Even if this is accepted, he would be guilty if the evidence establishes beyond reasonable doubt that he was party to a joint criminal enterprise to murder Mr Walker and Ms Hutchison performed the act(s) causing death with the requisite intention.

No reliance on extended joint criminal enterprise.

The Crown eschewed reliance on extended joint criminal enterprise as that concept has been explained by the High Court. [13] This is of particular significance in Mr Wilkinson’s case, but it is relevant to both cases. In short, the Crown relies on a joint criminal enterprise to kill or inflict grievous bodily harm. It does not rely on a factual scenario whereby, using Mr Wilkinson’s case as an example, (i) Mr Wilkinson was involved in a joint criminal enterprise to unlawfully enter Mr Walker’s home and inflict unlawful violence (short of death or grievous bodily harm), (ii) Ms Hutchison acted outside of the scope of the common purpose and committed the crime of murder (ie caused Mr Walker’s death with intention to kill or inflict grievous bodily harm) and (iii) Mr Wilkinson foresaw the (real, not remote) possibility that Ms Hutchison would kill her ex-husband and do so with intention to inflict grievous bodily harm or to kill.
13. McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37; Miller v R; Smith v R; Presley v Director of Public Prosecutions (SA) (2016) 259 CLR 380; [2016] HCA 30.

Causation

One of the elements common to both forms of homicide is that an act or omission of the accused caused Mr Walker’s death. Causation “is not a philosophical or a scientific question, but a question to be determined by… applying [my] common sense to the facts as [I] find them, [while] appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.”[14] The question is whether the accused’s act (or omission) caused or substantially contributed to Mr Walker’s death.
14. Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 at 387 (Mason CJ) citing Campbell v The Queen (1981) WAR 286 at 290; see, for example, Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66 at 69 (Windeyer J).

Self-defence

The Crown bears the onus of proof on the issue of self-defence. It must disprove, or eliminate the possibility, that the accused acted in self-defence. It must do so beyond reasonable doubt. [15] In the present case, Ms Hutchison relies on the proposition that any act she did was done in defence of her two children. The prosecution must disprove this. Mr Wilkinson’s primary position is that he did not cause Mr Walker’s death. Insofar as he did any act of violence, it was done in response to Mr Walker’s act of trying to punch him. While it was no part of the positive case that he advanced, it is incumbent on the prosecution to disprove that he acted in defence of Ms Hutchison’s children.
15. Crimes Act 1900, s 419.
The law of self-defence in New South Wales is contained in ss 418-423 of the Crimes Act 1900. The relevant provisions are as follows:

418 Self-defence – when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct of the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.
421 Self-defence – excessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

In relation to the offence of murder, if the Crown does not eliminate the possibility (beyond reasonable doubt) that the accused believed that their conduct was necessary, but it does prove beyond reasonable doubt that the response was not a reasonable response in the circumstances as they perceived them to be, the appropriate verdict would be manslaughter.
In relation the alternative crime of manslaughter (by unlawful and dangerous act), the Crown must prove either that the accused did not believe their conduct was necessary or that the conduct was not a reasonable response in the circumstances as the accused believed them to be.
When considering self-defence, it must be remembered that a person defending their children (or their partner’s children) “cannot always weigh precisely the exact action which [they]… should take in order to avoid the threat which [they] reasonably believed that [they] faced at the time.” The matter must be considered “in a broad and practical manner, giving proper weight to the situation in which the accused found [themselves], with little (if any) opportunity… for calm deliberation or detached reflection.”[16]
16. R v Dziduch (1990) 47 A Crim R 378 at 380; see, for example, B v R [2015] NSWCCA 103.

Substantial impairment

Section 23A of the Crimes Act provides:

23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.
(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.
(7) If, on the trial of a person for murder, the person contends:
(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or
(b) that the person is not liable to be convicted of murder by virtue of this section,

evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.
(8) In this section:
“underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind.

There is no dispute that Ms Hutchison was impaired to some extent by “an abnormality of mind from an underlying condition”. Two highly regarded psychiatrists gave evidence that she suffered from a number of relevant illnesses. While they attached different labels in some instances, I have no doubt she suffered from clearly diagnosable and pre-existing personality disorders including post-traumatic stress disorder, anxiety disorder and severe depression. Both psychiatrists were of the opinion that these conditions impaired Ms Hutchison’s capacity (i) to understand events, (ii) to judge whether what she did was right or wrong, and (iii) to control herself. However, Dr Adams (who was called by the Crown) thought there was insufficient link between the disorders and those three “domains” to elevate the impairment to a substantial one. Dr Nielssen was of the contrary view. Accordingly, the first issue is whether the impairment was substantial. This means the impairment must be of substance and not trivial. [17]
17. R v Lloyd [1967] 1 QB 175; R v Trotter (1993) 35 NSWLR 428.
The second issue is whether the impairment is so substantial that it warrants the reduction of the crime from murder to manslaughter. This is, self-evidently, an elusive test. It has been said that this involves a moral or value judgment based on the application of community standards. [18] The task must be approached “in a broad commonsense way, involving a value judgment by the jury representing the community”. [19] How this applies to a judge sitting without a jury is somewhat perplexing. It has been described as “a quintessential jury issue”. [20] However, in some rare cases, judges are called upon to determine the issue. Like a jury, the judge is required to apply community standards (insofar as they are known) and take into account the nature of the killing balanced against the severity of the accused person’s impairment, and the extent to which their thought processes differ from those of the ordinary person. [21] The question involves the degree to which Ms Hutchison’s abnormality of mind reduces her moral and legal culpability.
18. R v Quinn (No 2) [2016] NSWSC 1244 at [32]-[34].
19. Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217 at [33]-[35].
20. R v Poynton (No. 3) [2017] NSWSC 1772 at [38].
21. R v Quinn (No 2) [2016] NSWSC 1244 at [34].

Approach to the evidence and the testimony of the witnesses

The verdicts are to be based on the whole of the evidence. This includes the oral testimony of witnesses as well as the contents of various witnesses’ statements that were tendered, read and not subject to challenge. It also includes the exhibits tendered by the Crown (Ex A – YY) and by Ms Hutchison (Ex H-1 – H-25). This included five statements of agreed facts.
As to the witnesses, I am able to accept part of what the witness says and reject other parts. However, where a witness has given evidence that is clearly disproved or wrong, it is appropriate to exercise caution in accepting other parts of their evidence.

AVL evidence

Three of the witnesses were children. Their evidence in chief was given by video recorded interviews made before the trial. They were cross-examined from a remote location via audio-visual link (AVL).
The fact that the evidence was given by AVL has no effect on the weight their evidence should receive. It is the standard procedure by which evidence of vulnerable persons, such as children, is given and I should not draw any inference adverse to the accused because of it. [22]
22. Criminal Procedure Act 1986 (NSW), s 306ZI.
The quality of the technology in the courtroom was such that there was no impact on the ability of the Court to assess the demeanour or credibility of the witnesses.

Demeanour

Even so, the ability of a judge to assess credibility based on demeanour is highly questionable. [23] It is better to set the testimony under scrutiny against facts that are known or proved objectively than to purport to have some uncanny capacity to divine a witness’s honesty and reliability by how they look. As Atkin LJ once said:[24]

"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

23. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31].

24. Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152.

Why would the witness lie?

Because this is a criminal case, it is not appropriate to reason that a witness’s evidence is more likely to be true because there is no obvious motive for the person to lie. [25] “People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not.”[26]
25. Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at 9.
26. R v Jovanovic (1997) 42 NSWLR 520 at 542.

Mr Wilkinson’s evidence

Mr Wilkinson was not obliged to give evidence or to expose himself to cross-examination. Had he chosen not to give evidence, no adverse inference could have been drawn against him. Even so, he elected to give evidence. He is to be given some credit for that. On the other hand, his evidence is to be assessed in the same way as every other witness.
The fact that he gave evidence and, by so doing, presented a positive defence, does not in any way alter the onus of proof. The onus remains on the Crown. By giving evidence Mr Wilkinson did not undertake to prove anything. However, in determining whether the prosecution has discharged its heavy onus in his case, his evidence must be taken into account. In view of the content of his evidence, he would be entitled to an acquittal if I formed the view that the substantial parts of his evidence might possibly be true and accurate. Having said that, it is not for Mr Wilkinson to establish that his account might be true. Rather, it is for the Crown to prove his guilt beyond reasonable doubt.

Mr Wilkinson’s good character

Mr Wilkinson raised his good character in a particular respect. He asserted that he has never been charged or convicted of any offence involving violence. He considers himself to be a person of non-violent disposition. This evidence was not challenged.
Evidence that an accused is a person of good character, either generally or in a particular respect, must be taken into account in determining whether the prosecution has proved its case beyond reasonable doubt. The tribunal of fact must consider that a person of non-violent disposition is less likely to involve themselves in a common purpose to kill or inflict grievous bodily harm and less likely to inflict such harm themselves. Such a person may be less likely to commit, or be a knowing party to, an offence involving unlawful violence.
Because the raising of good character is limited, it is not necessary to take into account the other part of the traditional “good character” direction, namely that the good character of the accused should be taken into account in assessing their credibility as a witness. [27]
27. Cf Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32.

Circumstantial evidence and inferences

In addition to the direct evidence of what people saw and heard, I am also able to draw rational inferences from the direct evidence.
While there is a good deal of direct evidence, the Crown also relies on circumstantial evidence to prove its case. The most significant example is that the Crown relies on circumstantial evidence to prove the joint criminal enterprise and also to establish that the accused acted with the specific intention to inflict grievous bodily harm. Another example is that the Crown relies on certain parts of the physical evidence of the crime scene, the content of various text messages, and the timing of events established by CCTV stills and telephone records, to prove what happened inside Mr Walker’s townhouse or to provide support for its case and the evidence of the young boy, Toby Walker (a pseudonym). It relies on the same evidence to undermine the credibility of the accounts given by each of the accused.
Where the inference sought to be drawn is adverse to the accused, it should only be drawn if it is the only rational inference available. [28]
28. Chamberlain v The Queen [No. 2] (1984) 153 CLR 521; [1984] HCA 7.
When dealing with circumstantial evidence, it is important to take a global or holistic approach, rather than considering the individual items of evidence in a piecemeal fashion. It is often the accumulation of primary facts, rather than any particular item of evidence, that gives strength to the inference sought to be drawn.
Where an intermediate fact is essential to the process of reasoning toward guilt, that intermediate fact must be established beyond reasonable doubt. [29]
29. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56.

Consciousness of guilt

A particular type of circumstantial evidence is evidence that the prosecution says establishes that the accused conducted themselves in a way that suggests they knew they were guilty. This includes evidence of disposing of Mr Walker’s body in an isolated area, cleaning up the crime scene at St Marys and lying to Mr Walker’s partner when she arrived outside the St Marys home while Mr Walker was in the boot of the car. The prosecution also relies on Ms Hutchison’s attempt to discourage Mr Walker’s partner from calling the police.
I have exercised caution in considering the evidence said to demonstrate a consciousness of guilt. It is evidence that can easily be misused. People react in different ways to circumstances such as those confronting each accused following Mr Walker’s death. People panic, people act out of misguided loyalty. As was long ago said: [30]

“Who of us can say how an innocent or a guilty man ought or would be likely to act in such a case; or that he was too much or too little moved for an innocent man?”
30. Gatti and Krishnamachariar, Wills’ Principles of Circumstantial Evidence (7th ed, 1936, Butterworth & Co) at 140-141 citing Shaw CJ’s charge to the jury in the trial of Professor Webster, Bemis’s Rep. 486 (1850). The authors went on (at 135) to cite the case of Rex v Coleman where an innocent man was executed following a verdict based on evidence that his conduct after the offence was that of a guilty man: Rex v Coleman, Kingston Spring Ass, 1749; 4 Celebrated Trials, 344; 3 Par & Fonbl. Med Jur., ed of 1823, p 143.

Further, where the accused might be guilty of murder or manslaughter (or, in Mr Wilkinson’s case, accessory after homicide) such evidence can be “intractably neutral” in distinguishing between the two forms of homicide or between homicide and some lesser offence. I considered this issue in a pre-trial hearing in the murder trial of Bradley Brooks and will not repeat the survey of relevant cases that I undertook there. [31]
31. R v Brooks [2017] NSWSC 188 at [27]-[38].

Expert evidence

Various experts gave opinion evidence. This included the psychiatrists and a forensic pathologist who attended the scene and conducted the post-mortem medical examination. There were also crime scene officers and an agreed statement of facts based on the evidence of forensic biologists who undertook DNA examination of various exhibits and items collected from the two crime scenes (St Marys and Wisemans Ferry) and Bonnells Bay.
While the qualifications of these expert witnesses were not challenged, I am not obliged to accept their opinions. Their evidence is to be assessed in the same way as other witnesses. Where the evidence is not challenged, or subject to agreement between the parties, I might more readily accept the evidence. However, ultimately it is a matter for the tribunal of fact and not expert witnesses to determine the inferences to be drawn from the direct evidence. Where the evidence is based on assumptions that I do not accept as the tribunal of fact, the opinions should be given little weight.
One body of opinion evidence that the parties agree I should disregard arises out of the tender of agreed facts relating to the family law proceedings. In that document, there are a number of opinions expressed by a counsellor concerning the mental state and credibility of the parties to the dispute (that is Mr Walker and Ms Hutchison) and the two children who are important witnesses in the present trial. While it is appropriate to take into account the things the children said in those proceedings, as well as the concerns expressed by Ms Hutchison, I have disregarded entirely the opinions as to the credibility of the children (and Ms Hutchison) in determining whether, and to what extent, I should act on the accounts given in the present trial.

Silence

It seems that neither of the accused spoke to police upon or after their arrest. I assume they exercised their right to silence. Similarly, Ms Hutchison exercised her right not to give evidence in the trial.
No inference adverse to either accused can be drawn from their failure to speak to police. No inference adverse to Ms Hutchison can be drawn from her failure to give evidence. Their silence cannot be used to fill in gaps in the prosecution case or to bolster the credibility of the account given by witnesses whose evidence is in dispute.

Evidence that may be unreliable

The parties identified and largely agreed that certain parts of the evidence should be subject to the kind of warning that would be given under s 165 of the Evidence Act 1995. That is, parts of the evidence fall into a category of evidence that the law recognises may be unreliable. In accordance with s 133(3), I must take into account the following warnings that would be given to a jury:

Admissions by Mr Wilkinson: the evidence of Bradley Hinchcliffe

Bradley Hinchcliffe gave evidence of an admission allegedly made by Mr Wilkinson. He says that a person who the parties agree was Mr Wilkinson told him “they’d bashed someone and put them in the boot of the car”. Counsel sought an unreliability direction on the basis of his drug use and also because he had acquired the deceased’s ‘phone and “cannibalised” it.
Evidence of an admission may be unreliable. [32] The alleged admission was not recorded in any way and Mr Hinchcliffe did not provide a statement to police until late January 2015, some three months after the event. His account might easily be mistaken, even if he was honestly trying to recall what was said. A simple mistake as to the personal pronoun (“she” instead of “we”) would change the meaning of his account in a significant way in the circumstances of this case.
32. Evidence Act 1995, s 165(1)(a).
Further, Mr Hinchcliffe had smoked what I understand to be a great deal of methamphetamine (20 pipes) before the arrival of the two accused. That activity seemed to have occupied him for most of the day. He agreed that he was “fairly affected” by the drugs although he said that “ice” “doesn’t really affect your memory all that much”.

Evidence of a witness criminally concerned in the events: Mr Wilkinson’s evidence

Ms Hutchison sought a direction in relation to Mr Wilkinson’s evidence on the basis that he was a person who was criminally concerned in the events giving rise to the proceedings. [33] Obviously, any such warning can only apply in Ms Hutchison’s case. In considering Mr Wilkinson’s case, I must disregard this warning and the fact that he could be seen as having an interest in the proceedings. [34]
33. Evidence Act 1995, s 165(1)(d).
34. Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38 at 535.
However, counsel agreed that it was appropriate in Ms Hutchison’s case to take into account the fact that Mr Wilkinson was (or might be supposed to have been) involved in the events giving rise to the proceedings. In assessing her case, and her account to the doctors, which is in conflict with large parts of the version given on oath by Mr Wilkinson, I must take into account the fact that Mr Wilkinson may be motivated to minimise his own involvement and lay the blame for all of the fatal violence on Ms Hutchison. The law has long recognised that the evidence of such witnesses may be unreliable.
It bears repeating that in considering Mr Wilkinson’s case, I must disregard the warning. [35] I must not reason that his evidence should be treated sceptically because he is accused of a serious offence and has an interest in the outcome of the case.
35. See Webb and Hay v R (1994) 181 CLR 41; [1991] HCA 30 at 65.

Hearsay evidence: the evidence of Ms Hutchison

The version of events given by Ms Hutchison to the two psychiatrists was admitted as evidence of the history upon which their opinions were based. Having been so admitted, it became evidence of the truth of the assertions made to the doctors. [36] That was the stance taken by Senior Counsel for the accused and no submission was made by the Crown that the use of the evidence should be limited in any way. [37] The evidence was not admitted in Mr Wilkinson’s case at all.
36. Evidence Act 1995, s 60.
37. Evidence Act 1995, s 136.
The evidence of what Ms Hutchison said to the doctors is hearsay evidence. The law recognises that such evidence may be unreliable. [38] It was not given on oath, was not subject to cross-examination, and the method of eliciting and recording her account means it is likely to be incomplete.
38. Evidence Act 1995, s 165(1)(a).
It is accepted that it is appropriate to provide a jury with a warning even where the evidence is relied on by, and in some respects favourable to, an accused person. However, any such warning must be tempered to take into account the particular position of the accused in a criminal trial, the presumption of innocence and the onus and standard of proof. [39]
39. Cf R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455.

THE EVIDENCE

I will not summarise the whole of the evidence but have considered it all, both as it was adduced and, since reserving judgment, in deliberating over the verdicts in the case of each accused.

Oral evidence, statements and exhibits

46 witnesses gave evidence in the trial. This included three children who gave evidence by audio-visual link, various police officers, witnesses relevant to the family relationships and allegations of abuse, and witnesses of the events after the assault of Mr Walker. By agreement between the parties, a number of witness’ statements were tendered. The fact that the evidence was adduced in this way does not make the evidence any less important or worthy of less weight. Rather, it simply means that the evidence was not in dispute.
The Crown tendered 49 exhibits (A – YY) and Ms Hutchison tendered 25 exhibits. Included in the exhibits were a number (5) of statements of agreed facts pursuant to s 191 of the Evidence Act. These documents related to:

Forensic (and DNA) evidence (Ex YY).

Assaults committed on Ms Hutchison when she was a child (Ex H-10).

The death of Mr Walker’s first wife, the coronial investigation surrounding her death, and allegations made by Ms Hutchison against Mr Walker (Ex H-14).

Family Court proceedings between Ms Hutchison and Mr Walker (Ex H-15). [40]

Agreed facts as to the video content of Mr Wilkinson’s ‘phone (Ex H-23).
40. Ex H-15 is subject to a non-publication order.

Various exhibits comprised official records (such as hospital records), photographs (of crimes scenes and the post mortem examination), and video clips.
While most of the evidence is important in its own way, exhibits of particular significance are the schedule of telecommunications (Ex OO and H-11) and stills of CCTV footage (Ex HH, H-5 and H-6). Due to the fallibility of human recollection and the possible unreliability of the witnesses’ perceptions and recollections, these exhibits are important in placing the events in context and provide an accurate and reliable timeline of the events of 20 October 2014.
The psychiatrists called by each side gave important evidence in Ms Hutchison’s case. This evidence was relevant both to the positive defence of substantial impairment and also the issue of Ms Hutchison’s belief relevant to whether she acted in defence of her children. It also provides her account of what happened.
Dr Cala (pathologist) also gave evidence of great importance in determining the nature of the assault on Mr Walker. In conjunction with the photographs of the crime scene and the forensic evidence, the pathologist’s findings allow for a reasonable, if imperfect, understanding of what happened in the 20-30 minutes in which Mr Walker was, at least, incapacitated and (I am satisfied) killed.
Mr Wilkinson gave evidence of great significance, directly and circumstantially, to the issues for determination. He was cross-examined by both Senior Counsel for his co-accused and the learned Crown Prosecutor.
The foregoing is no more than an overview of the evidence that I have considered in reaching the verdicts in the case of each accused. Compliance with s 133(2) does not require a Judge sitting without a jury to set out all of the evidence or expose every element of the reasoning process. Rather it requires the Judge to set out the findings of fact upon which the verdicts are based. However, as I have said, compliance with the section requires more than simply setting out the principles of law and the findings of fact. The reasons for reaching the verdicts must adequately be explained by reference to the evidence and in the context of the submissions made by counsel. [41] However, nothing much is gained by undertaking a summary of all of the evidence given in the case. [42]
41. Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8.
42. Although this approach is often taken: see, for example, my judgment in R v Simmons (No 7) [2015] NSWSC 574.

Inspection of the scene where Mr Walker’s body was found

The Court, along with the legal representatives of the parties, conducted a view of the Wisemans Ferry area. Pursuant to s 54 of the Evidence Act, this is evidence in the case and inferences can be drawn from it. The Court and lawyers met in the car park near a shop that was attended by the accused to obtain food for the children. The convoy then travelled in a generally northerly direction along the Old Northern Road skirting the Dharug National Park to its south and east. Several points were noted along the journey. Finally, the Court stopped on the corner of the Old Northern Road and Mangrove Creek Road and then proceeded the 740 metres to the point where Mr Walker’s body was found.

MOTIVE OR JUSTIFICATION: THE HISTORY OF A TROUBLED AND BITTER RELATIONSHIP

The prosecution case is that Ms Hutchison was deeply embittered and motivated by hatred arising from her broken marriage to Mr Walker. The Crown submits that she was disappointed and furious because the Family Court ordered that her two children live with their father (Mr Walker) and not with her. The Crown submits that her assertion that she acted in defence of her children is a sham and that her true purpose was to seriously injure or kill the man who was the focus of her longstanding bitterness.
Conversely, Ms Hutchison’s case is that her dysfunctional relationship with Mr Walker and her belief that he was a dangerous man, capable of murder, and who posed a real threat to the safety of her children, places her actions on 20 October into a proper context. She says her beliefs were soundly based and justified her actions both in a legal and moral sense. It was submitted on her behalf that her own childhood trauma, and her underlying psychiatric disorders, heightened and exacerbated these beliefs.
Because this background is so significant to the case presented by each of the parties, it is necessary to go back in time and recount at least a portion of the relevant history. That history begins many years before Mr Walker and Ms Hutchison were married and involves the tragic circumstances in which his first wife died. However, I will commence with the family law proceedings.

An acrimonious battle in the Family Court

The battle between Mr Walker and Ms Hutchison for custody of their two children traversed five rancorous years. It commenced in June 2007 when agreement led to orders wherein the children lived with the accused, but spent some weekends with the deceased. Similar orders were made by consent in November 2008. In August 2011, her then husband, Nathan Hutchison, assaulted the accused while the children were present in the house. When Mr Walker was informed of this, he commenced to agitate with the Family Court for custody of the children. The battle continued until September 2012 when the Family Court made orders that Mr Walker have sole parental responsibility for both children.
In the course of the proceedings, court appointed counsellors interviewed the parents and children. The evidence in the present trial included agreed facts based on material that is subject to statutory non-publication orders under the Family Law Act 1975 (Cth), s 121. For that reason, I will make reference to only a small amount of that evidence. I have considered all of it.
In short, and meaning no disrespect either to the deceased or the accused, both parents were found to be deficient in their care of the children and, in particular, were said to have exposed them to the conflict in the course of the litigation. Both children made it clear that they wished to remain with their mother. The children made allegations, in Ms Hutchison’s absence, [43] that Mr Walker had shown them inappropriate and frightening movies, exposed them to his “ghost hunting” activities and struck the children when he was angry with them. Ms Hutchison expressed fears that her children were being exposed to physical discipline, mockery, pornography, and paranormal activities such as exorcism and ghost hunting.
43. At one stage the learned Crown Prosecutor suggested that all of these allegations were made in the presence of Ms Hutchison, a submission that was contrary to the evidence.

The decision of the Court to place the children in the care of their father seems largely to be based on the fact that the accused suffered major depressive episodes and a borderline personality disorder along with the fear that the children were exposed to the domestic violence perpetrated by Ms Hutchison’s then husband.
The evidence shows that Ms Hutchison loved her children. There is little doubt the Family Court’s decision was devastating to her. Some of her text messages establish that she remained frustrated, disappointed and angry that her children resided with Mr Walker most of the time. The Crown submits that this provided her with a motive for murder and was the backdrop to her creating false scenarios in which the children were being abused. The defence submits that the fact that the children were living with Mr Walker fed Ms Hutchison’s fears that her children were in danger of abuse of the kinds she had complained about in the Family Court.

Obscene and threatening sounding text messages

A number of text messages demonstrate Ms Hutchison’s fear and hatred of Mr Walker. As far back as 31 July 2013, she called him a “prick” and talked about “a swift drill to the kneecaps” to “incapacitate the cunt for life.” On 28 September 2013 she referred to Mr Walker as “sociopathic” and a “fucktard.” In October 2013 she spoke of Toby “being mindfucked coz April’s [(a pseudonym)] too old” and alleged “the children have confirmed that Brett is abusing them both badly”.
Taking the messages at face value, by late November 2013 she was contemplating murder. She said “the kids have no hope unless I kill Brett so maybe I should make Bennet do it”. The identity of Bennet was not disclosed in the evidence. In December she referred to the fact (or her impression) that “COCKSPANK IS TRYING BULLY ME”. Ms Hutchison also showed signs of hopelessness. On 18 February 2014 she said “you can tell Brett once I’m gone and tell him his lowlife ex wife was a filthy crackwhore and killed herself coz she was a crazy drugfucked unit”. On the same day she referred to Brett and Bennet as “sociopaths” and “predatory by nature”.
Text messages of this kind continued up until the date of Mr Walker’s killing. The messages closer in time to the killing are particularly relevant to what happened on 20 October 2014, what motivated the accused and to the issues canvassed later in this judgment. The messages are discursive, emotional and erratic. Some are drafts sent to Mr Wilkinson of proposed messages to be sent to Mr Walker. Others show the sometimes dysfunctional nature of the relationship between the two accused. The messages are probative of Ms Hutchison’s state of mind. They have the capacity to support the Crown’s case on motive and intention but they are also relevant to her beliefs concerning self-defence and her partial defence of substantial impairment.
A proper understanding of the text messages, the opinions of the psychiatrists and Ms Hutchison’s case require consideration of events even further back in time, including horrible things that happened to Ms Hutchison when she was a child.

MS HUTCHISON’S PERSONAL HISTORY

Both psychiatrists were of the view that childhood trauma suffered by Ms Hutchison was relevant to, if not causative of, the mental disorders she suffered at the time Mr Walker was killed. Agreed facts were tendered in relation to events that took place between 1987 and 1991, when the accused was just 9-12 years old. Her step-father, a man called Thomas Lynn, regularly assaulted her indecently. In 2001, Mr Lynn was convicted of eight counts of indecent assault upon a person under the age of 16 years. He pleaded guilty and was sentenced to imprisonment. [44]
44. R v Thomas Taig Lynn [2004] NSWCCA 222. This decision is not in evidence. The summary is derived from agreed facts in the present trial (Ex H10).
The agreed facts in this trial record that in addition to being indecently assaulted, she was also humiliated by being whipped with a dog collar and leash. Her mother found diary entries about the indecent assaults. Rather than supporting her daughter, she became angry saying that Mr Lynn was a good man. She provided the accused with no emotional or financial support and Ms Hutchison ended up living in communal homes and youth refuges. She was described in documents tendered on the sentencing hearing as having a disrupted life featuring “severe depression, interrupted education, drugs, suicide attempts.” And so on.
It seems, as is often the experience of the Courts, that Ms Hutchison’s childhood experiences of being a victim influenced her adult relationships. At least one of those relationships was abusive. It is apparent from the family law proceedings that Nathan Hutchison (Ms Hutchison’s second husband) assaulted her in the course of the marriage. That is an agreed fact and was part of the reason that the Family Court ordered that the children live with their father. In a text message dated 6 May 2014, Ms Hutchison alleged that “Nathan beat me and choked me, bullied me, emotionally and mentally tortured me etc”.
The text messages suggest that Ms Hutchison’s relationships with the deceased and her co-accused were also dysfunctional, possibly largely as a result of her neediness and psychiatric disorders. However, in each case, her text messages showed her to perceive herself as the victim.
The assertions made by Ms Hutchison in the text messages cannot be tested and must be treated with a degree of caution. However, because they pre-date the killing by months or years, they provide an important insight into her motivations and state of mind and are a backdrop against which the events of mid to late October 2014 are to be judged.

MR WILKINSON AND HIS RELATIONSHIP WITH HIS CO-ACCUSED

Mr Wilkinson is 39 years old. He has never been charged with any offence involving violence. He considers himself to be a non-violent man. He was not challenged about these assertions. Mr Wilkinson has been employed – “on the tools” according to his barrister – for most, if not all, of his adult life. Between 2009 and 2013 he was employed as a fitter and machinist at an engineering firm in Maitland. He was involved in repairing plant equipment for power stations; things like turbines, generators and water pumps. The nature of his trade, and the physical work that it involved, is important to a particular factual issue – that is, some photographs of his hands taken the day after Mr Walker’s death.
His good character, in the sense that he is a man of steady employment who has never before been charged, let alone convicted, of any offence of violence is relevant to a more general issue. That is, it is less likely that a person of such character, and non-violent disposition, would involve themselves in a criminal enterprise to inflict violence. Equally, it is less likely that such a person would himself inflict fatal violence.
Mr Wilkinson was in a romantic relationship with Ms Hutchison for about a year or 18 months before the events of October 2014. There was not a great deal of evidence about the nature of their relationship although Mr Wilkinson was asked a number of questions as to his knowledge of Ms Hutchison’s personality and temperament. From those answers, and from material in the text messages, it seems the relationship was a rather dependent one. Ms Hutchison was described as impulsive at times and quite thoughtful and considerate at others. Mr Wilkinson agreed she had trust issues [45] and a fear of being abandoned. He was aware of her drug use and of a number of issues in her personal and relationship history. The couple travelled overseas in June and July 2014 and planned to marry. He was the de-facto stepfather of the two children and there is material showing they enjoyed spending time with him.
45. My term.
The text messages that passed between Mr Wilkinson and Ms Hutchison indicate that the relationship was not without its difficulties. A large number of Ms Hutchison’s text messages, of considerable length and complexity, remained unanswered. There were messages of love, messages of hate or anger; rambling abuse was followed by contrite apology. Many appear to be the unfiltered stream of consciousness of a desperate individual. A reasonably constant theme was the bitterness engendered by her erstwhile relationship with Mr Walker and her ongoing disappointment surrounding her estrangement from her children. Ms Hutchison made threats of suicide, implicit and explicit.
On 24 September 2014, Mr Wilkinson sent an ultimatum to “get off the drugs and get mental help and I will be there for you all the way”. Ms Hutchison’s responses were needy and desperate. She wrote “I’ll just die here if you want to leave me all alone in the world” and “I have no more strength for this shitcuntery.”
Ms Hutchison was the prime mover behind the events that unfolded and led to Mr Walker’s death on 20 October 2014. She was motivated by an irrational hatred of her former husband and her fears that he was abusing their children. Mr Wilkinson’s motivation is more difficult to discern. He seems to have been driven by a misguided loyalty, possibly manipulated by guilt engendered by his fiancé. He was motivated, not by hatred, but by something in the nature of love.

THE GENUINENESS OF MS HUTCHISON’S CONCERNS ABOUT THE WELFARE OF HER CHILDREN

A central dispute between the parties is whether Ms Hutchison held a genuine belief that her children were in any real danger at the hands of Mr Walker. In address, the Crown Prosecutor took a rather strident position on this issue. That is not to say it was incorrect, but the submissions did not really engage with a significant body of evidence that shows that allegations were made over a number of years and to a number of people.

“Person of interest”: the death of Alison Walker

To understand Ms Hutchison’s concerns for the safety of her children it is necessary, once again, to go a long way back in time.
On 20 June 1998, Alison Walker fell 80 metres from a cliff near Ebor Falls. She died of multiple injuries sustained in the fall. Alison was Mr Walker’s first wife. Her death was considered to be a tragic accident and it seems that the investigating police did not treat her husband, who was with her at the time of her fall, as a suspect.
Ms Hutchison and Mr Walker commenced a relationship in early 2000 and were married in August of that year. In 2001 a coronial inquest attempted to unravel the circumstances in which Mrs Walker came to fall. Ms Hutchison attended the inquest. There was evidence of Mr Walker providing inconsistent versions. There was at least some suspicion of foul play. He was considered to be a “person of interest” and the Coroner formed the view that there was evidence capable of satisfying a jury that he had committed an indictable offence (presumably, murder). The inquest was terminated and the matter was referred to the Director of Public Prosecutions (DPP). The DPP decided not to prosecute.
The couple had two children born in 2002 and 2005. They separated in the middle of 2006 but remained living under the same roof until early 2007. Soon thereafter, Ms Hutchison made allegations to the police that Mr Walker had paid to have evidence destroyed that implicated him in the murder of his former wife. In July 2007, Ms Hutchison commenced to make a statement. The statement included allegations that he had taken racy photographs of her near the scene of his ex-wife’s death and that he had made threats to her that implied he had killed his ex-wife. In October 2007, Ms Hutchison told police that Mr Walker was “a liar and a manipulator and is capable of murder.”
This Court does not, now, sit to conduct some faux trial of Mr Walker concerning the death of Alison Walker. The evidence on the subject is scanty and Mr Walker died clothed in the presumption of innocence. He was never convicted of any offence around his ex-wife’s death and prosecuting authorities were of the view that there was insufficient evidence even to put him on trial.
The relevance of this evidence is that it demonstrates that Ms Hutchison had expressed her fears of Mr Walker, and her belief that he was capable of murder, many years before she killed him. This is relevant to the suggestion that her fears and neuroses at the time of Mr Walker’s killing were not genuine and that her defence of substantial impairment and self-defence were convenient excuses for a cold blooded and planned murder motivated by revenge and hatred.

More things in heaven and earth

I am in no doubt that Mr Walker exposed the children to some strange activities due to his interest in esoteric paranormal activities. I am satisfied that the children told Ms Hutchison about this and that it was a concern to her. This finding is supported by a number of text messages, the agreed facts relating to the family law proceedings and, perhaps most significantly, by the evidence of Raquel Blanco through whom a number of video clips were played. These clips showed (amongst other things) Mr Walker purporting to perform an exorcism as well as a video taken in a disused, decaying psychiatric hospital where Mr Walker and some cohorts were attempting to speak to the ghosts or spirits of past patients of the hospital. To an adult, these clips were more silly than they were scary, spooky or sinister. However, the activities depicted would probably be frightening and discombobulating for a child.
Ms Hutchison showed Ms Blanco these clips. Ms Hutchison expressed her concern that Mr Walker was involved in “demonology and ghost hunting” and was exposing the children to such activity. Toby agreed that his father had taken him out looking for ghosts and that he told his mother he was “very scared”. April, who was circumspect and cautious in most answers she gave, agreed that she “probably” showed her mother items on the internet relating to Mr Walker’s ghost hunting and demonology activities. Asked if she told her mother that her father had “been including you in this the whole time”, she replied “I’m not sure. Probably, yes.”
Whether Mr Walker was, in fact, exposing the children to these peculiar activities is not significant in resolving the issues in the trial. I am inclined to accept that he was, at least occasionally, doing so. This makes it more likely that the children complained about it and, again, I am satisfied that they did.

Ms Hutchison’s concerns and her own dalliance with mystical things

More significant, however, is the fact – as I find it to be – that Ms Hutchison was preoccupied and troubled by these things as she brooded over her separation from, and limited contact with, her children.
However, in considering this aspect of her concerns, it should be observed that Ms Hutchison also exposed the children, or at least April, to some pretty strange stuff and some unusual ideas. For instance, there is evidence that she considered herself to be a Pagan witch or white witch and that she encouraged or helped April to write spells. More troubling was evidence that she and April made a “voodoo doll” purporting to represent Mr Walker. April was asked to bring some of his hair on an access visit so that this could be incorporated into the doll. Ms Hutchison stuck pins in the doll and later burned it. While it was put to April that this “didn’t happen” this was part of her evidence that I accepted. It was an unlikely thing to invent, April’s responses were firm and clear (unlike a great deal of her evidence), and the detail provided suggested that April was being honest and accurate in her recollection of the incident.
Even allowing for the fact that Ms Hutchison had her own share of strange beliefs, and shared some of them with her children, I accept that her concerns about the exposure of the children to demonology, exorcism, ghost hunting and similar paranormal activity were real. That this is so is reflected in some of her actions on 20 October 2014 (collecting evidence of the activity) and in a number of her text messages in the weeks and months leading up that fateful day. How those concerns impacted on the events of 20 October 2014 is a more complex question.

Mr Walker’s parenting of Toby and April

Senior Counsel for Ms Hutchison made it clear from the outset of the trial that the question of whether Mr Walker was, in fact, abusing the children is not the relevant issue. The real issue is whether the children complained of such abuse and whether those complaints – or anything else – caused Ms Hutchison to have such fears for her children that she believed it was necessary to take action to protect them.
Accordingly, no real attempt was made to establish that Mr Walker was a bad parent, hit the children or otherwise abused them. Some evidence of that nature emerged in the course of Toby’s evidence and in the agreed statement of facts relating to the family law proceedings.
It should be clear to those reading and listening to this judgment that I make no finding on that issue one way or another. Nor am I called upon to make any such finding.
There is a deal of evidence that Mr Walker was a good father and loved the two children very much. Photographs showed he provided them with a comfortable home. Teachers from the children’s school, his family, friends, work colleagues, as well as his partner Marayam spoke well of him and raised no concerns at all for his care and concern for April and Toby. He was considered to be punctual, polite and responsible. He is supported and remembered by a loving family, some of whom were called to give evidence in the trial.

Allegations of assault by Toby

Even so, I am satisfied that Toby made a number of complaints that he had been assaulted by Mr Walker. Whether those complaints were true is impossible to say. Toby has been proven to be an unreliable historian in other respects. His accounts of assaults by his father were disbelieved by his sister and treated with a degree of scepticism in the family law proceedings.
However, there is a substantial amount of evidence that Toby complained on a number of occasions to different people about being physically assaulted. In the course of the family law proceedings, he said that his father was mean, gets angry and smacks him and his sister.
Toby told William Price and Mr Wilkinson that Mr Walker strangled him and scratched his feet. Mr Price gave evidence that Toby said to him that he told his teacher but that the teacher didn’t believe him. However, in cross-examination Toby denied telling his teacher about the abuse, and Cecilia Cui (Toby’s teacher in 2014) denied receiving any complaint. Whether or not Toby was assaulted in this manner, and whether or not he complained to his teacher about it, I accept that he complained to Mr Wilkinson and Mr Price, and that his mother was aware of his complaint.
Toby also told Nigel Stauffer (a neighbour in Bonnells Bay) that he did not want to go back to his father any more. When this was raised with Ms Hutchison, she said that her ex-husband was abusing the children.
These complaints seemed to reach their nadir in the days and weeks leading up to Monday 20 October 2014. He told Ms Hutchison that his Dad hit him and choked him. He remembered saying that on the weekend before his dad died and “maybe” told her similar things on the weekend of 4 and 5 October 2014. I have no doubt that he did so even though I have grave doubts that he was telling the whole truth. All of the evidence points in the same direction – namely that Toby, for whatever reason, told his mother and others, repeatedly, that he was subjected to some form of physical abuse at the hands of Mr Walker.
Investigators interviewed Toby on 3 August 2018, that is, very shortly before the trial commenced. [46] In that interview he said that his father “never hit me or choked me”. That assertion was directly contradictory to what he said on 23 October 2014 in his first interview with police. [47] In that interview he said his father “was hitting me then I fell and then I got up again and then he hit me and then I fell again.” He also said Mr Walker “choked me for 30 seconds” while counting “one Mississippi and then up to 30”. He said he “just went all black”. It is very unlikely that he would have told the police these things and not have made similar allegations to his mother a few days earlier. In cross-examination at the trial, Toby agreed that he had told his mother such things on the weekend before his father died.
46. Ex G.
47. Ex D.

I am unable to conclude beyond reasonable doubt that there was a joint criminal enterprise to kill or inflict grievous bodily harm before Ms Hutchison entered the townhouse. In reaching that conclusion I placed particular emphasis on the evidence of Mr Wilkinson’s non-violent disposition and the lack of any particular injury, or use of any particular weapon, that would ordinarily inflict fatal or really serious injury. I have also borne firmly in mind the high standard of proof cast on the prosecution.
The question of what then happened inside the townhouse, and what intention each of the accused formed individually or jointly, is a different one. However, because the Crown specifically abandoned the possibility that either or both of the accused might be guilty by what is known as extended joint criminal enterprise, it is important to give effect to this finding that whatever happened inside the townhouse, the original agreement did not involve killing or the infliction of grievous bodily harm on Mr Walker. Or, more correctly, I am not satisfied beyond reasonable doubt that there was such an agreement.

What was the original agreement?

I am satisfied that the original agreement was to enter the house unlawfully, to lure Mr Walker there, to ambush him, and to extract a confession by means of violence. There is overwhelming evidence in support of this conclusion. This includes the text messages in the hours before Mr Walker died that passed between Ms Hutchison and both Mr Walker and Mr Wilkinson (waiting in the street outside the townhouse to warn Ms Hutchison of her ex-husband’s approach). It also includes the fact that Ms Hutchison was armed, as I find she was, with weapons such as a Taser, a pocket knife and, probably once she was inside, Exit Mould which she intended to use as mace. There is a text message at 11:31am from Ms Hutchison to her co-accused asking “exit mould work like mace?” Less than 30 seconds later she answered her own question: “I reckon that’s a goer”. A bottle of Exit Mould is seen in the photographs of the bathroom but this was not forensically tested. In her response to the Crown case statement Ms Hutchison indicated “the possession by the accused of a pocket knife and Exit Mould will not be disputed.” There are many messages in which it is clear that Ms Hutchison’s purpose was to get Mr Walker to attend the premises unaware that she was inside. Shortly before he arrived home she texted Mr Wilkinson “[Game] on. We man up [fist emoji].” As Mr Walker approached, Mr Wilkinson texted “here he comes”. Based on the evidence of both Toby Walker and Mr Wilkinson himself, the violence commenced very soon after Mr Walker arrived home.
On all of the evidence, there is no reasonable inference other than that the two accused entered an agreement, that is a joint criminal enterprise, that violence would be inflicted on Mr Walker.

What was the purpose of the unlawful entry and violence?

There is some evidence to support an inference that the accused had in mind, and carried out, theft of some of the property inside the townhouse. Part of the property seized following a search warrant included a number of pieces of jewellery belonging to Ms Montagami. Text messages showed Ms Hutchison to be covetous of the property she found inside the premises. She told Mr Wilkinson (waiting outside) that “he’s got everything better than us” and described leather lounges, televisions as well as electronic and photographic equipment. At one stage Mr Wilkinson said “If we are meeting him I want a camera the led lenser stuff”. Ms Hutchison was urging Mr Wilkinson to “come in [for fucks sake]” but Mr Wilkinson stayed outside, texting “Gotta keep watch”.
While this evidence suggests both accused had in mind to steal some of the property, I find this was opportunistic rather than planned or calculated. Had their real intention been to steal, they could have done so without luring Mr Walker to the premises.
The true, if completely misguided, purpose of the unlawful entry into the premises was to find evidence of parental neglect on the part of Mr Walker and, in particular, to make him confess and prove that he involved the children in his forays into demonology and exorcism. This finding is supported by the items Ms Hutchison was looking for and removed from the premises, by the things she said to the psychiatrists (although I disregard this in Mr Wilkinson’s case), by Mr Wilkinson’s evidence and by Toby’s evidence of what he heard his mother and father arguing about. Toby’s evidence was that his mother was trying to get his father to confess and said to him at one stage “confess or I’ll kill you.”
I am unable to resolve whether Mr Walker did or did not confess. Toby said he refused to do so. Mr Wilkinson gave evidence he did make admissions and claimed that they believed the confession was recorded on his telephone. He found out later that the recording did not work and, at that stage, they deleted the video. At one stage the Crown suggested (by implication) that no such video existed. [99] However, there was evidence that the police analysed Mr Wilkinson’s telephone and that it was “likely but not conclusive” that a video file was deleted “sometime between 1:09pm on 20 October 2014 and 7:11pm on 24 October”. [100] It was submitted that if such a video was deleted it did not contain a confession by Mr Walker. That much is common ground, but the deletion of a video (whatever it contained) suggests that a video was made. It is unlikely a video was made to record an unlawful assault. It is far more likely that a video was made to attempt to record evidence of an admission.
99. T 805.
100. Ex H 23.
The Crown submitted that I would accept Toby’s evidence that Ms Hutchison said “confess or I’ll kill you” and that Mr Walker was killed because he did not confess. As I understand it, this involves the suggestion that I would infer an intention to kill although the Crown at most stages pitched its case on specific intention as being an intention to inflict “at least grievous bodily harm.”
Accordingly, I will turn to what the evidence establishes in terms of any intentions formed by the accused, individually or as part of the joint criminal enterprise, once the assault on Mr Walker commenced.

Inside Mr Walker’s townhouse: the intentions of the accused, the scope of the criminal enterprise and the liability of each accused for murder and manslaughter

While I am not satisfied that the accused had formed, either expressly or implicitly, a joint criminal enterprise to kill or inflict grievous bodily harm before the assault commenced, I have considered whether their intentions changed once they were inside the townhouse.

Ms Hutchison

I am satisfied that once the assault commenced, and Mr Walker resisted confessing to hurting Toby, Ms Hutchison’s intentions escalated. I am satisfied beyond reasonable doubt that at the time she was assaulting him, and the acts causing death were inflicted, she intended to do Mr Walker really serious bodily injury. I doubt she intended to kill him but I am satisfied that she intended to inflict grievous bodily harm.
The main reason for this conclusion is the nature and number of the injuries and my conclusion that Ms Hutchison inflicted most of the injuries that killed Mr Walker. The second of those findings is explained above. I am satisfied that in her fury and anger, and with the background of hatred and animus that existed (at least in her mind), she lost control of herself and formed the intention required to establish a charge of murder. In reaching this conclusion beyond reasonable doubt, I have taken into account the fact that none of the injuries, by itself, bespeaks an intention to do grievous bodily harm. However, the multiplicity of injuries show that this was a sustained and brutal assault. I am satisfied that, at some stage, Mr Walker was incapacitated or disabled as a result of having Exit Mould sprayed in his eyes or having some form of electrical prod applied on at least two occasions.
I have taken into account the vehemence contained in the text messages going back many months. I have outlined some of these above. While I accept that many of the more grandiose threats and assertions were little more than spontaneous outpourings of emotion, the strident and violent language employed disclosed a deep and bitter hatred towards Mr Walker.
Accordingly, I am satisfied that, subject to a consideration of self-defence and substantial impairment, the evidence establishes the essential elements of murder in Ms Hutchison’s case. That is:

She did an act or acts that caused or substantially contributed to the death of Mr Walker.

The act or acts were deliberate.

At the time she committed those acts, she had an intention to inflict grievous bodily harm.

Mr Wilkinson

On the other hand, the Crown has not established that Mr Wilkinson formed an intention to kill or inflict grievous bodily harm. There is no evidence that he held any deep animosity towards Mr Walker. Rather, his motivation was to support Ms Hutchison in her misguided attempt to regain custody of her children by proving that Mr Walker had neglected and abused them. He resisted coming inside the premises until Mr Walker arrived home and (I accept) was outside the premises when the altercation commenced. The text messages showed Ms Hutchison asking him to come inside on various occasions but him choosing to stay outside. It is unclear precisely what he did in terms of assaulting Mr Walker although I am satisfied that he did more than he said in his evidence. In any event, he was a party to a criminal agreement to assault Mr Walker and that assault was carried out jointly and/or by the other party to the agreement.
In concluding that the evidence does not establish beyond reasonable doubt an intention to inflict grievous bodily harm, I have taken into account his non-violent disposition and the lack of any previous charges or convictions for violence. In considering all of the evidence, and inquiring into whether he formed the specific intention to establish murder, previous good character in this particular respect is an important part of the evidence.
I have taken into account Mr Wilkinson’s actions relied on by the Crown as establishing a consciousness of guilt. This evidence does not distinguish between Mr Wilkinson’s guilt as to murder as opposed to some lesser crime. His conduct in covering up the crime is equally consistent with him feeling responsible for Mr Walker’s death or knowing that was party to the criminal enterprise to unlawfully enter the house and keep lookout. In other words, there are other explanations for his conduct apart from him being guilty of homicide.
For those reasons, Mr Wilkinson must be found not guilty of murder.
However, subject to a consideration of self-defence or defence of the children, the evidence establishes the elements of manslaughter by unlawful and dangerous act. That is, the evidence establishes:

Mr Wilkinson was part of a joint criminal enterprise to inflict violence upon Mr Walker.

The violence was unlawful (if it was not carried out in self-defence) and dangerous (in the sense that it carried with it an appreciable risk of serious injury).

The violence caused the death of Mr Walker.

Self-defence in Mr Wilkinson’s case

Mr Wilkinson did not give evidence that he acted in defence of Ms Hutchison’s children. However, I accept counsel’s submission that it must be considered because there is evidence that Toby told Mr Wilkinson, and Mr Wilkinson may otherwise have believed, that Toby was subject to violence at Mr Walker’s hands. An available inference is that Ms Hutchison had persuaded Mr Wilkinson that their plan was necessary to save the children. On his account (which I reject, at least in part) his only act of violence was in response to being swung at by Mr Walker.
Once the issue arises as a matter of law, the prosecution must eliminate or disprove it and must do so beyond reasonable doubt. To do this, the prosecution must prove (beyond reasonable doubt) either (1) that Mr Wilkinson did not believe the conduct was necessary to defend the children or (2) that the conduct was not a reasonable response in the circumstances as he perceived them to be. I am satisfied beyond reasonable doubt that it has done both.
The evidence establishes beyond reasonable doubt that Mr Wilkinson did not believe that the conduct was necessary to defend the children from further assaults. Mr Wilkinson did not assert that he held such a belief. In cross-examination he said ‘there was part of me that believed it, part of me that didn’t know”. [101] While he was close to them, Toby and April were not his children. Mr Wilkinson must have known that there were many other options available. If Toby was injured, or was making specific complaint about a recent assault, Mr Wilkinson could have taken him to the police. There is no evidence, as there is in Ms Hutchison’s case, of a history of complaints that had not been acted on, or of significant psychiatric issues that may have caused him to hold an irrational belief that the only option available was to enter Mr Walker’s house and seek to extract a confession.
101. T 715.
For the same reasons, but to an even greater degree of certainty, the evidence establishes that the conduct was not a reasonable response to the circumstances as Mr Wilkinson perceived them to be.
The Crown having established the elements of manslaughter by unlawful and dangerous act, including eliminating the possibility that the accused man was acting in defence of Ms Hutchison’s children, Mr Wilkinson will be found guilty of manslaughter.

Self-defence in Ms Hutchison’s case

The issue of self-defence is more complex in Ms Hutchison’s case. Unlike Mr Wilkinson, she specifically and clearly raised the issue. Her case is that she believed her conduct was necessary to defend her children. She also submits that, in the circumstances as she perceived them, her conduct was a reasonable response to the threat she believed Mr Walker represented to the children.
Ms Hutchison relies on the evidence of Toby’s repeated complaints, the seriousness of those complaints over the weekend before the killing, and the mixed messages she says she was receiving from April in conversations about whether Mr Walker touched her inappropriately. There is a large body of evidence of the children complaining and crying and indicating they wished to stay with her.
She also relies on her history of making complaints to official bodies which were not acted on. This included the undisputed fact that she was sexually abused as a child and received no support from her mother. [102] There are a number of examples of this during Ms Hutchison’s adulthood, many of which are set out in agreed statements of facts, the histories provided to the psychiatrists and in Detective Kelly’s evidence. [103] For example, she provided police with a lengthy statement potentially relevant to the death of Alison Walker but, while the Coroner referred the papers to the DPP, no charges were laid. Similarly, she made complaints (and official statements) of sexual assault and domestic violence which were not acted on. There are numerous examples of her making official complaints about her fears for her children and the things (she says) they alleged.
102. Ex H-10.
103. See, for example, T 490-494, Ex X, H-14, H-15.
Ms Hutchison also relies on the evidence of the psychiatrists that her mental health issues made her “hypervigilant” to allegations of abuse and that her beliefs would have been informed by the nature of her psychiatric illnesses.
The Crown’s position in relation to self-defence is that Ms Hutchison’s account is self-serving and she is using this kind of evidence as an excuse to do what she wanted to do, namely to seriously injure or kill a man she hated and resented. It submits that Ms Hutchison resented the outcome of the family law proceedings and this fed her hatred towards Mr Walker. Rather, than acting in defence of her children, she was acting out of self-interest and loathing. It is a simple case of domestic murder. It submits that April made no complaint about sexual abuse and that anything Toby said was the result of manipulation on the part of the accused. It relies on the history of text messages showing the extent of Ms Hutchison’s hostility and her inability to cope with the outcome of the family law case.
Considering all of the evidence and submissions, and in relation to the first limb of self-defence, I am not satisfied beyond reasonable doubt that the Crown has excluded the possibility that Ms Hutchison believed her conduct was necessary to defend her children.
It seems that Toby’s complaints escalated on the weekend of 18-19 October 2014. It is the defence case that he alleged that he was bashed and choked to the point of unconsciousness. This is supported by two separate parts of the evidence. First there are Ms Hutchison’s text messages on 19 October. At 2:12pm she wrote to her mother: “he chokes Toby unconscious” and at 5:24pm she wrote “he beat him & choked him worse than ever”. Second, and more importantly, Toby made the same allegation to police just a few days later. On 23 October 2014, in an interview in which he promised to tell the truth, Toby told Officer Greig that Mr Walker “choked me for 30 seconds” and “I just went all black”. As I have said, it does not matter whether this was true; what matters is that Ms Hutchison believed it. The fact that she did so is evidenced by her text messages on 19 October 2014.
In considering whether Ms Hutchison held a genuine belief that her children were in danger, and what conduct she believed was necessary to defend them, her own (undisputed) history of being disbelieved as a child victim of sexual assault, and the psychological impact this had on her, are also important. This is likely to have informed the beliefs she had about the dangers her ex-husband posed to the children.
To repeat, in a slightly different way, my finding on this issue: I am not satisfied beyond reasonable doubt that the Crown has eliminated the possibility that she believed her conduct was necessary to protect the children from (what she believed) was further harm. Even once she was inside the house, and her intention escalated, it is a reasonable possibility that Ms Hutchison believed her conduct was necessary.
As to the second limb of self-defence under s 421, I have concluded that the prosecution has discharged its onus. The second limb is partially objective (an inquiry into what was in fact a reasonable response, rather than what she believed was a reasonable response). However, it is also partially subjective in that I must consider the circumstances as she perceived them to be. I am satisfied beyond reasonable doubt that the conduct was not a reasonable response to the circumstances as Ms Hutchison perceived them to be. Even accepting that her perceptions were heightened by the matters referred to in the preceding paragraphs, there were (objectively) several options available to Ms Hutchison. She had already contemplated taking Toby to Coffs Harbour to meet with a police officer she trusted. In spite of the Family Court orders, she could have refused to return the children until Toby had been seen by a doctor and interviewed by police. Once inside the house, she had around 2½ hours to reconsider her plan and, in particular, her intention to inflict violence to extract a confession.
While it is possible that she believed her conduct was necessary to protect her children, her response was unreasonable and disproportionate to the threat. She is guilty of manslaughter by excessive defence of her children.

Substantial impairment

Because of my finding in relation to self-defence, Ms Hutchison is not guilty of murder. Accordingly, the defence of substantial impairment does not strictly arise. [104] Even so, I should record my finding that I accept that Ms Hutchison has established the defence on the balance of probabilities.
104. See the chapeau to Crimes Act, s 23A(1).

In reaching that conclusion, I have taken into account the serious nature of her impairment and the fact that it directly related to her conduct on 20 October 2014. I accept that she had each of the conditions identified by Dr Adams. She had at least two or three relevant conditions – post-traumatic stress disorder, a borderline personality disorder and a serious depressive illness. These arose from her history of abuse.
I do not accept Dr Adams’ opinion that there was no link, or insufficient link, between her impairment and her conduct and his related or consequent opinion that the impairment was not relevantly “substantial”. I find that there was a direct link between her history as the victim of abuse, her psychiatric conditions and her conduct on 20 October 2014. While there was a degree of planning and calculation in the lead up to the offence, and an attempt to cover up the crime, both the planning and attempted cover up were chaotic and ill-considered and reflected an accused with substantial mental health issues. I accept Dr Nielssen’s opinion that the planning involved does not diminish to any great degree the extent of Ms Hutchison’s impairment and the way in which it related to her actions on 20 October 2014.
I am satisfied that Ms Hutchison lost control of herself during the assault on Mr Walker. I am satisfied that this loss of self-control was directly and causally linked to her psychiatric conditions. These conditions were, in turn, causally related to her own sexual abuse as a child and the fact that her mother essentially abandoned her after she made the allegations. I accept that her ability to control herself was substantially impaired by her mental health issues (abnormality of mind) and that these arose from an underlying condition. I am also satisfied that her ability at that time to judge whether her actions were right or wrong was substantially impaired. I am not convinced that her capacity to understand events was substantially impaired.
The more difficult question is whether Ms Hutchison established that the impairment was so substantial that it warrants the reduction of the crime to manslaughter. I have concluded that, had the question arose, her impairment did justify the reduction of the crime from murder to manslaughter
I have considered the nature of the killing, its planning, and the callousness of the attempt to cover it up. I have taken into account that the specific intention established was to inflict grievous bodily harm (not to kill) and that this intention was formed as the events unfolded.
Against that, I have taken into account that Ms Hutchison’s psychiatric illnesses at the time were very debilitating. Her mental functions were greatly different to most people in the community. The degree of her impairment was significant and arose, at least in part, from Ms Hutchison’s childhood trauma as a victim of repeated sexual abuse. I have taken into account my understanding of current community standards and, in particular, the increasing awareness of the impact that child sexual assault has on its victims. I accept that, rightly or wrongly, Ms Hutchison felt hopeless and impotent and unable to help her son and daughter. The community understands and accepts that there are few more powerful human qualities than the desire of a parent to protect their children.

VERDICTS

Accordingly, Ms Hutchison, on the indictment presented on Monday 13 August 2018, I find you not guilty of murder but guilty of manslaughter.
Mr Wilkinson, on the indictment presented on the same date, I find you not guilty of murder but guilty of manslaughter.

*********

Endnotes

Amendments

20 November 2018 - Correction made to the spelling of counsel's name on coversheet.

Decision last updated: 20 November 2018

Medium Neutral Citation:	R v Hutchison & Wilkinson [2018] NSWSC 1759
Hearing dates:	13 August 2018 - 20 August 2018; 24 September 2018 - 24 October 2018
Date of orders:	16 November 2018
Decision date:	16 November 2018
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1) Hutchison, verdict of not guilty of murder but guilty of manslaughter. (2) Wilkinson, verdict of not guilty of murder but guilty of manslaughter.
Catchwords:	CRIMINAL LAW – trial by Judge alone – killing by ex-wife following bitter family law dispute – reasons for decision – relevant legal principles – where deceased hoodwinked and ambushed – where allegations of child abuse made to accused – where accused survivor of childhood sexual assault – where accused not believed as a child – attempt to extract confession by violent means – where accused suffered various mental conditions – where conditions arose out of abuse – self-defence – defence of others – substantial impairment – loss of self-control – community standards – community understanding of impact of child sexual abuse – motive – where obscene text messages showed considerable animosity towards deceased – love/hate – unfiltered stream of consciousness – whether hatred and disappointment true motivation for killing – whether defence of children and substantial impairment used as a convenient excuse to kill a man she hated CRIMINAL LAW – weird aspects of evidence – exorcism – flying saucers – where deceased a demonologist, exorcist and ghost hunter – whether exposing young children to bizarre paranormal activity – discombobulating for a child – whether relevant to mother’s claim of defence of others – where accused said to be “pagan white witch” – voodoo doll – spells CRIMINAL LAW – joint criminal enterprise – whether co-accused fiancé party to joint criminal enterprise – intention – where intention of principal offender changes – where ex-wife committed most acts of violence – loss of self-control by co-accused – admissions – consciousness of guilt
Legislation Cited:	Criminal Procedure Act 1986, ss 133 and 306ZI Crimes Act 1900, ss 23A and 418-423 Evidence Act 1995, ss 54, 60, 87, 136, 165 and 191 Family Law Act 1975 (Cth), s 121
Cases Cited:	AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 B v R [2015] NSWCCA 103 Campbell v The Queen (1981) WAR 286 Chamberlain v The Queen [No. 2] (1984) 153 CLR 521; [1984] HCA 7 Colisimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCCA 293 Flanagan v R [2013] NSWCCA 320; (2013) 236 A Crim R 255 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Miller v R; Smith v R; Presley v Director of Public Prosecutions (SA) (2016) 259 CLR 380; [2016] HCA 30 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217 R v Brooks [2017] NSWSC 188 R v Crabbe (1985) 156 CLR 464; [1985] HCA 22; R v Dziduch (1990) 47 A Crim R 378 R v George O’Neil (Court of Criminal Appeal (NSW), 13 August 1992, unrep) R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513 R v Jovanovic (1997) 42 NSWLR 520 R v Lloyd [1967] 1 QB 175 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Poynton (No. 3) [2017] NSWSC 1772 R v Quinn (No 2) [2016] NSWSC 1244 R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 R v Simmons (No 7) [2015] NSWSC 574 R v Thomas Taig Lynn [2004] NSWCCA 222 R v Trotter (1993) 35 NSWLR 428 Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66 Webb and Hay v R (1994) 181 CLR 41; [1991] HCA 30 Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
Texts Cited:	Anvi Mehta (ed), Macquarie Dictionary (online ed, at 6 November 2018) Gatti and Krishnamachariar, Wills’ Principles of Circumstantial Evidence (7th ed, 1936, Butterworth & Co)
Category:	Principal judgment
Parties:	Regina Raquel Hutchison Paul Wilkinson
Representation:	Counsel: M Cunneen SC (Crown) B Rigg SC & S Beckett (Hutchison) M Ainsworth (Wilkinson) Solicitors: Director of Public Prosecutions NSW (Crown) Blair Criminal Lawyers (Hutchison) McGirr Lawyers (Wilkinson)
File Number(s):	2014/00308895 (Hutchison)2014/00308929 (Wilkinson)
Publication restriction:	See R v Hutchison & Wilkinson (No 3) [2018] NSWSC 1758. (1) Suppression order over the surname of the deceased and the children who gave evidence in the trial. (2) Non-publication order over the contents of exhibit H-15. (3) Pseudonyms to be used.