R v Kageregere

[2011] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v KAGEREGERE

Criminal Trial by Judge Alone

[2011] SASC 154

Judgment of The Honourable Justice Kourakis

26 September 2011

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER

Criminal trial by judge alone – accused charged with murder and arson – accused pleaded guilty to arson of home unit which caused death and proffered plea of guilty to manslaughter – manslaughter plea not accepted – defence case that accused thought victim already deceased at time of lighting fire – whether accused guilty of common law murder – whether accused guilty of murder pursuant to s 12A Criminal Law Consolidation Act 1935 (SA).

Held – accused guilty of common law murder and murder pursuant to s 12A Criminal Law Consolidation Act 1935 (SA) – accused knew victim still alive at time of lighting fire – arson was an intentional act of violence – no reasonable explanation for totality of evidence other than guilt of the accused.

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY

Criminal trial by judge alone – application by accused to exclude record of interview – whether admission of statement procedurally unfair – whether discretion requires exclusion.

Held – in the circumstances the continued questioning of the accused was calculated to undermine his procedural right to silence – it would be unfair to admit the evidence of the record of interview – record of interview excluded.

Criminal Law Consolidation Act 1935 (SA) s 12A, s 24, s 85(1); Criminal Code (Qld) s 302, referred to.
R v Swaffield (1998) 192 CLR 159; R v Bueti (1997) 70 SASR 370, applied.
R v Van Beelen (1973) 4 SASR 353; R v CMM (2002) 81 SASR 300; R v Butcher [1986] VR 43; Stuart v The Queen (1974) 134 CLR 426; Hughes v The King (1951) 84 CLR 170; Thabo Meli v The Queen [1954] 1 WLR 228, discussed.
R v Church [1966] 1 QB 59; R v Radalyski (1899) 24 VLR 687; R v Dowdle (1900) 26 VLR 637; DPP v Beard [1920] AC 479; Ross v The King (1922) 30 CLR 246; R v Carlos [1946] VLR 15; R v Brown [1949] VLR 177; R v Ryan [1966] VR 553; R v R (1995) 63 SASR 417; R v Serne (1887) 16 Cox CC 311; Appleby v The King (1940) 28 Cr App Rep 1; R v Jarmain [1946] 1 KB 74; R v Maurangi (2000) 80 SASR 295; R v NJA [2001] SASC 342, considered.

R v KAGEREGERE
[2011] SASC 154

Criminal

1. KOURAKIS J:                   Ettiene Murekezi and his wife Stephanie Misago fled civil strife in Burundi to find refuge in Tanzania.  They lived for over a decade in a camp in Tanzania before migrating to Australia in March 2005.  They arrived here with eight children; the five elder children were daughters.  The deceased, Malaika Murekezi,[1] was born on 31 May 1987.  She was the eldest and was about 19 when the family arrived in Australia.  Malaika met the accused, a Burundi man, at English classes she attended soon after her arrival.   

   [1]    I will respectfully refer to the deceased throughout as Malaika so that the narrative of events might be more easily related.

2. The accused, who is 48 years of age, also fled the civil strife in Burundi and spent many years in a refugee camp in Tanzania before migrating to Australia.  In 2006 the accused approached Ettiene Murekezi, in accordance with Burundi custom, for permission to marry Malaika and a dowry was stipulated.  Several days later Malaika left the family home and became his de facto wife but the dowry was never paid.  According to Burundi custom the failure to pay the dowry meant that the accused had no right to contact Malaika’s family and was not welcome in their home.  The accused harboured much resentment against Ettiene Murekezi throughout his relationship with Malaika.  It contributed to marital disharmony and threatening encounters between the accused and Malaika’s family.

3. A son, Joseph, was born to Malaika and the accused on 11 June 2007.  Malaika had always maintained contact with her family and after Joseph was born returned to live with them following a period of marital disharmony.  She later moved into her own unit before reconciling with the accused.  Eventually, in early 2008 Malaika and the accused moved from Melbourne to Adelaide and took up residence in a unit on Anzac Highway in Camden Park.  The unit was one of many in a three storey block at 445 Anzac Highway (unit block 445).  It was unit number 5 (unit 5) and was situated at the Anzac Highway end of the second floor.  Adjoining unit block 445 to the north east is another block of units to which I will refer as unit block 443.

4. In the early hours of New Years Day 2009 Malaika died when a fire, lit by the accused, burnt down their Anzac Highway unit.  The accused lifted Joseph from his bedroom immediately after he lit the fire, waited on the landing whilst the fire took hold, and then left the unit block with his son.

5. The accused admits that he lit the fire which caused Malaika’s death by igniting gas flowing out of an inlet pipe to a gas heater which he had ripped from the wall.  Moreover, the accused admits that when he ignited the gas Malaika lay motionless on the floor of the unit.  He testified that shortly before he ignited the fire he had punched her with all his force, but not intending to cause grievous bodily harm.  On his evidence, by unfortunate chance Malaika’s head hit a wall of the living room in which she was standing and she fell to the floor.  The accused claims that he unsuccessfully tried to revive Malaika by pulling on her arm but that she did not respond.  The accused gave evidence that he ignited the gas because, in his panic, he believed that Malaika was dead.  He ignited the gas hoping that her death would be attributed to the ensuing fire and that he would thereby escape any responsibility for her death.  The accused’s defence is that he therefore did not intend to kill Malaika because he believed she was already dead.  The fact is that Malaika was not dead but only unconscious.  It was the fire, and not any preceding injury, which caused her death.  Nonetheless, the accused contends that the prosecution have not negatived his belief that she was dead and that he is therefore not guilty of murder.

6. I find that when the accused ignited the gas he knew that he had seriously harmed his wife by punching her.  I find that the accused knew that his wife was alive but badly hurt and in need of medical assistance.  Faced with a choice between calling for that assistance, thereby exposing his own wrong doing, and destroying any evidence of his crime, he chose the latter.  He knew that the fire would destroy the unit and any life in it.  I find that in those circumstances, his intention was to kill Malaika to ensure that she would never recover and give evidence against him.  I therefore find the elements of murder at common law proved beyond reasonable doubt. 

7. Moreover, when the accused ignited the gas flowing into the unit he knew that he would start a fire of a magnitude and ferocity which could not easily be controlled and that there were residents of unit block 445 who were likely to be in their units.  The lives and welfare of those residents were, objectively viewed, put at great risk.  It follows, in my view, that the accused thereby committed an intentional act of violence, in the furtherance of the offence of arson for which the maximum penalty is more than 10 years.[2] The fire resulted in the death of Malaika but that was not the sole purpose of the offence of arson committed by the accused. It follows that the elements of constructive murder in accordance with s 12A of the Criminal Law Consolidation Act 1935 (SA) (CLCA) have also been established beyond reasonable doubt.

   [2] Criminal Law Consolidation Act 1935 (SA) s 85(1).

8. I summarise the evidence and elaborate my reasons below.

   General Matters

9. The crime of murder is committed when a person deliberately and unlawfully causes the death of another person while, at the same time, intending to cause death or grievous bodily harm. That is the general proposition. The matters which the prosecution must prove beyond reasonable doubt therefore are that:

   1.     The act or acts of the accused caused the death of Malaika;

   2.The act or acts of the accused which caused the death were conscious and voluntary, that is to say that they were the result of the exercise of the accused’s will and were not the result of an accident;

   3.The act or acts of the accused which caused the death were carried out with the intention of either killing Malaika or at the very least causing Malaika grievous bodily harm. By the term grievous bodily harm I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out;

   4.Finally the killing was done without any lawful justification or excuse such as lawful self-defence.

10. On his arraignment the accused proferred a plea of guilty to manslaughter which was not accepted by the Director of Public Prosecutions.  Nonetheless, by that plea and by his sworn testimony the accused has admitted the first two elements. The prosecution evidence in proof of those elements is, in any event, overwhelming.  There is no evidence and no suggestion of a lawful excuse or justification for the killing of Malaika.  The only question is, therefore, whether the prosecution have proved beyond reasonable doubt that the accused did not believe that Malaika was dead when he lit the fire.

    The cause of death

11. The forensic pathologist, Dr Gilbert, gave evidence that the most probable cause of Malaika’s death was a combination of the inhalation of the products of combustion and in the incineration of her body.  The level of the products of combustion, carbon monoxide and cyanide, found in Malaika’s blood, were likely to cause unconsciousness but were a little lower than the levels which would ordinarily result in death.  Incineration causes death by the loss of fluid and blood, but there is no objective way in which to determine whether incineration was the cause of death or occurred subsequently to a death brought about by the inhalation of smoke.  In this case the lower blood levels of carbon monoxide and cyanide gave Dr Gilbert reason to think that incineration was a contributing cause of Malaika’s death. 

12. Posthumous analysis of Malaika’s blood revealed a blood alcohol level of 0.165 per cent.  The autopsy revealed some, albeit equivocal, evidence of blunt head trauma.  Dr Gilbert opined that a head injury may, in combination with Malaika’s intoxication, have resulted in a loss of consciousness.  Dr Gilbert explained that a noxious stimulant like pain can jolt a person out of unconsciousness.

    The fire scene

13. Officer Fisher is a police fire scene examiner.  He testified that the origin of the fire was in the lounge room of the unit.  The ignition source was natural gas escaping from the feeder pipe to the gas heater in that room.  The pipe had been ruptured by the removal of the heater from the wall.  The weight of the heater was 18.5 kg. 

14. All of the power points in the unit were either switched off or not connected to an appliance.  The mains electricity had also been switched of, but the evidence allows for the possibility that it was turned off by a fire fighter as a precaution. 

15. The deceased’s body was found prone on the floor of the living room between a sofa bed and a wall.  The iron legs of a table in the lounge room rested over the deceased’s body in a way which indicated that the lower part of her legs were underneath the table at the time of the fire and that, once the wooden table top had burnt, the legs simply fell to the ground.  There was some unburnt curtain material found underneath the deceased’s body.  There was no evidence of any burnt fabric on the deceased’s body which indicated that she was unclothed at the time that her body was incinerated. 

16. Officer Fisher testified that the wooden door to the unit was shut during the fire.  Although the door itself was burnt the paint on the outside surface of the door hinges was not burnt, indicating that the hinges were in a closed position during the fire. 

17. Importantly, the only smoke detectors found in unit 5 were two detectors found, with batteries still installed, in a cupboard in the passage way.  Even though a fire as intense as that which consumed unit 5 may melt the plastic of a smoke alarm, the batteries are invariably found.  Police searched for but did not find any batteries in the rubble of unit 5.  The landlord of unit 5, Dr Masika, testified that smoke detectors were fitted to the ceiling of the unit and were in place when he visited the accused on Christmas Eve.

    Observations of the fire and the accused

18. William Hunter and his girlfriend Teresa Ireland resided in unit block 443, which is situated immediately to the north east of unit block 445.  They arrived home at about 3:00 am at about the same time as the residents of another unit in unit block 443.  William Hunter testified that he smelt burning plastic and heard the faint sound of a smoke detector even as he drove down the driveway of unit block 443 to the carports at the rear.  Teresa Ireland had noticed only an amber glow in the windows.  When William Hunter alighted from the car he saw that unit 5 was on fire.  By the time he and Teresa reached the first floor landing of unit block 443 the windows of unit 5 were cracking.  Phone records show that Teresa Ireland called “000” at 3:03:25 am and that she was on the line for 27 seconds.  Teresa Ireland testified that while she was making the call she heard the loud scream of a woman’s voice which continued for about 30 seconds.  She testified that by the end of the call the fire in the unit had “exploded”.  William Hunter also heard the scream.  He testified that it emanated from unit 5 which by then was truly ablaze.  The scream continued for about two minutes and sounded as if the woman was in “in terror”.  Soon thereafter William Hunter walked around to the end of the driveway of unit block 445 where he saw the accused.  The accused appeared “very vacant, distant, like he was in a trance”.  I accept the evidence of William Hunter and Teresa Ireland that they heard a woman scream in the way they described.  They were well placed to hear the scream emanating from unit 5 because of the position of the first floor landing relative to unit 5 and because of the weather conditions.  They also probably remained relatively stationary at that position observing the fire whilst Teresa Ireland made her “000” call.  For those reasons my confidence in their testimony is not disturbed by the apparent failure of others to hear the scream.

19. Slobodan Klajic also resided in unit block 443 and is the resident who returned home from New Years Eve celebrations at about the same time as William Hunter and Teresa Ireland.  His police statement was received into evidence by consent.  On the first floor landing he heard Teresa Ireland making her emergency call and at the same time saw the accused coming out of unit block 445 holding Joseph.  Klajic ran down to the letter boxes outside unit block 445 where he found the accused.  Klajic asked the accused several times “where is your wife”.  The accused was speaking on his mobile phone on the footpath at the time.  As will shortly appear the accused was speaking to police who had telephoned him in response to a “000” call received from his mobile phone.  Klajic testified that the accused appeared empty and expressionless.  The accused eventually responded saying “smoke”, “wife” and “no English”.

20. Milorad Kuga resided in a unit in the rear of unit block 445.  He returned to unit block 445 from his New Years Eve outing at about 3:00 am.  He heard a fire alarm from within unit block 445 as he was driving down the driveway even though his car windows were up and music was playing on his car’s audio system.  Within moments of alighting from his car he heard what he believed to be the air conditioner of the accused’s unit exploding and the windows shatter and he then saw the fire flare and blaze more fiercely.  Kuga called “000” at 3:03:58 am which suggests he alighted from the car, as, or shortly before, Teresa Ireland made her call.  While making his call over the next 30 seconds he evacuated people from the rear of unit block 445 to the rear car park area.  Kuga also saw people coming out of the front of the unit block.  Amongst them he saw the accused, who appeared composed, leaving the unit block carrying his child over his shoulder. 

21. From 3:00:38 am four “000” calls were made from the accused’s mobile telephone. The first three were not connected to an operator.  At about 3:02:56 am, just 29 seconds before Teresa Ireland’s “000” call a fourth call was made and was connected to an operator.  There is an audible smoke detector and Joseph can be heard crying in the background.  The sound of someone walking down the steps can also be heard.  The accused, however, did not respond to the operator’s requests for information.  I infer that that call and the three preceding calls were made unintentionally and without the accused realising that the calls had been made. 

22. At 3:04:43, just under a minute after Teresa Ireland’s call finished, a police officer on duty on the emergency call desk telephoned the accused on his mobile.  The call duration was about 50 seconds.  The background sound suggests that at that time the accused had exited the ground floor of unit block 445.  A male voice, probably Klajic, is heard to ask the accused about the whereabouts of his wife.

23. It follows from the observations of the residents to whom I have referred, and the timing of the telephone calls, that the accused must have stood on the landing outside of unit 5 for at least several minutes whilst the fire blazed inside. 

24. Thomas Ian Hancock lived in unit 2/445 Anzac Highway.  On New Years Eve 2008 he had gone out with his girlfriend Lauren Hillman.  They arrived home at about 1:30 am and went to bed.  Hancock was woken by the sound of breaking glass sometime after 3:00 am.  He left his unit and went to the car park area to the north of unit block 445 before being moved by police to the front of the units near the median strip.  There he noticed the accused.  The accused appeared “very calm, relaxed”.  Lauren Hillman also testified that she arrived at unit block 445 with her boyfriend, Thomas, at about 1:30 am.  She woke to the sound of loud voices and glass breaking.  She first went to the rear of unit block 445.  Later, when she was moved to the Anzac Highway side of unit block 445, she too observed the accused and he appeared to be very calm. 

25. I accept that the evidence of all of the residents to whom I have referred was truthful and generally reliable.

26. As the residents of the unit blocks were reacting to the fire police officers Peta Schatto and Amanda Boughen were travelling in a police vehicle away from Glenelg and towards the city along Anzac Highway. They noticed the fire in unit 5 and stopped in front of unit block 445 arriving at about 3:06 am.  At about 3:09 am Officer Boughen took a short video of the fire on her mobile telephone.  Approximately 15 to 20 people were congregated in the driveway to unit block 443.  Officer Schatto approached and asked if any of them lived in the unit that was ablaze.  No-one responded.  Officer Boughen went to the back of unit block 445 where she found a group of people in the car park.  When she returned to the Anzac Highway entrance she saw Officer Schatto speaking to the accused.  

1. Officer Schatto’s attention had been drawn to the accused, who was holding Joseph, because he was not accompanied by anyone who might be the child’s mother.  She asked him “where’s the mother?”  The accused’s answers were largely not responsive.  She tried to ascertain if the accused lived in the unit which was on fire.  He appeared to be calm and responded “not been here long, don’t speak much English”.  A little later Officer Schatto learnt from a bystander that the accused did reside in the unit that was on fire with his wife.  Officer Schatto moved the accused away from the units, taking him about 10 to 15 metres northeast along the footpath of Anzac Highway, and again questioned him.  The accused eventually responded by grabbing her arm and saying in an agitated manner “wife, wife, wake, wake, fire, fire, dead”.  Officer Boughen confirmed the substance of that conversation but described the accused as being very calm, “almost cold”.  Officer Schatto asked police communications to arrange a Kirundi interpreter and took the accused and his son to be examined by paramedics. 

2. In the opinion of Officer Schatto, who had served in the police licensing branch, the accused was moderately intoxicated.  Officer Schatto observed red wine stains on his lips and she could smell liquor on his breath.  Officer Schatto also described changes in his demeanour from an agitated to an apathetic state.  Officer Schatto was with the accused from just after 3:00 am to until about 4:30 am. 

3. I accept the evidence of Officers Schatto and Boughen.

   The accused’s intoxication

4. A sample of the accused’s blood was taken at 3:30 pm on New Years Day.  No alcohol or illicit drugs were detected on a subsequent analysis.

5. Professor White is a professor of Pharmacology at the University of South Australia.  He was called by the accused.  He testified that the blood alcohol level of the accused would not have exceeded 0.195 per cent given the absence of any alcohol in the blood sample taken at 3:30 pm.  He estimated the accused’s blood alcohol level was probably between 0.1 per cent and 0.15 per cent.  His opinion was primarily based on the assessment made by Officer Schatto that the accused was moderately affected by alcohol.  However, Officer Schatto’s empirical observations were limited and, notwithstanding her experience, supported her opinion in only a general way.  In Professor White’s opinion Malaika’s blood alcohol level and the history of alcohol consumption by the accused also suggested that the accused’s blood alcohol level was in the range he gave.

6. Notwithstanding the imprecision of Professor White’s opinion and the relative paucity of supporting evidence I will proceed on the basis that a blood alcohol level in that range has not been excluded by the evidence.  It would be surprising if the accused’s blood alcohol level was not somewhere in that range having regard to the evidence of his drinking habits and the likelihood that he had been drinking with Malaika on New Years Eve.

7. Professor White testified that he would ordinarily expect a person with a blood alcohol level of between 0.1 per cent and 0.15 per cent to be impaired in such functions as co-ordination, balance, thinking, concentration and memory.   He would also expect the person to be disinhibited.  Professor White explained that a person at that level of intoxication will tend to make errors of judgment and exercise less care.  In cross-examination he agreed that repeated exposure to alcohol engenders some tolerance to the effects of alcohol.  By tolerance Professor White meant both an ability to mask the effects of intoxication and a capacity to function more effectively than less experienced drinkers at the same level. 

8. I accept Professor White’s evidence about the effects of intoxication.  However, his opinion, which is necessarily general in nature, must ultimately be considered against what is known of the accused’s conduct and functioning at the relevant time.

   Exclusion of evidence of recorded interview

9. I earlier referred to the accused’s initial contact with Officer Schatto.[3]  The accused was also spoken to by Detective Osborne in a car park adjacent to Anzac Highway.  The accused told Detective Osborne a story about repelling intruders who had forced their way into his unit and later awaking to find the unit on fire.  The accused was questioned later at length in a recorded interview at Sturt Police Station.  In that interview the accused embellished his false story.  I received evidence of that interview subject to the accused’s application to exclude it in the exercise of my discretion.  For the reasons which follow, the accused’s objection to the admission of the evidence should be upheld.

   [3] See [27].

10. After the accused and his son Joseph were examined by paramedics, Officer Schatto escorted the accused across Anzac Highway to a car park on the opposite side to unit block 445.  The accused and his son were then offered a seat in the back of a police vehicle. 

11. The accused testified that he thought he had no choice but to accompany the police across Anzac Highway.  He said “No, I found that was very important for me to go with them”.

12. The accused’s landlord, Dr Masika, had been alerted to the fire by his children and he quickly made his way to unit block 445, which was a short distance from his home.  He saw the accused standing on the footpath next to a female police officer, probably Officer Schatto, who was sitting down with Joseph.  Dr Masika accompanied the woman police officer and the accused across Anzac Highway where they were met by a group of other officers who had walked to the median strip from the opposite side of Anzac Highway.  Dr Masika testified that he was asked for, and produced, some identification.  He and the accused were then directed to a police car on the other side of Anzac Highway.  A police officer informed Dr Masika that police had “a few questions to ask”.  Dr Masika gave evidence that the police “put Luka and the son into the back seat of the car”.  According to Dr Masika the accused was left in the back of the car for some time before it was opened by police who questioned the accused about what had happened.  The accused complained to Dr Masika that “they should give me somewhere to sleep and not keep asking the questions”.  According to Dr Masika he communicated that information to a nearby ambulance officer. 

13. At one point when Dr Masika was speaking to the accused Detective Osborne noticed that the voices of both the accused and Dr Masika became raised and the conversation rapid.  He raised his hands, gestured to both of them, and asked them to stop speaking.  He told Dr Masika that he would speak to the accused and Dr Masika separately.  When Detective Osborne decided to question the accused, Joseph was left in a police car.  Officer Schatto spent much of her time caring for Joseph whilst other police spoke to the accused.  Detective Osborne did not ask the accused how he wanted Joseph cared for and did not give him any choice in the matter before he embarked on his questioning.

14. The police fire investigator Officer Fisher, gave evidence that he arrived at the scene at 3:55 am.  He spoke to the accused who was with Detective Osborne in a car park on the other side of Anzac Highway from the units.  The accused told him, and Dectective Osborne, that;

    ·He had been drinking beer.

    ·Black man had come with two bottles of Carlton Draught and a fight had started.

    ·He called for police but they did not come out.

    ·He managed to push the intruders out.

    ·He later saw a fire in the lounge room

    ·He did not know what had started the fire but that it could be gas.

15. The interpreter, John Buraho, arrived and interpreted for the accused.  The accused told Detective Osborne that his wife was sleeping in their bedroom at the time of the fire.  He said that his son was asleep with his wife.  When the fire started he had taken his son and ran outside but did not know where his wife was.  The accused told Fisher and Osborne that he did not smoke and that there were no candles in the unit.  The accused also told them that they had cooked on the gas stove before they started drinking.  The accused explained that after fighting off the intruders he went to the same room as his wife to sleep.  He discovered the fire in the lounge room a little later when he got up to go to the toilet.  The accused told Detective Osborne and Officer Fisher that he had not taken any medicine or drugs. 

16. Officer Fisher then left to investigate the fire scene.  He drew a sketch of unit 5 before returning to show it to the accused.  In his examination of the unit  Officer Fisher saw the deceased’s body in the lounge room of unit 5 and observed that the gas heater had been removed from the wall and had been left lying on the lounge room floor.  Officer Fisher did not include any markings to that effect in the sketch which he showed to the accused.  Detective Osborne remembers Officer Fisher showing the accused a plan.  However, he denied obtaining any information from Officer Fisher about the location of the deceased’s body or about the position of the heater.

17. In a statement received by consent, Mr Buraho deposed that he was met in the car park by Detective Osborne who told him that the accused had lost his wife in the fire and that police required assistance in communicating with him.  Mr Buraho was taken to the accused who was sitting in a police van with his son Joseph.  Mr Buraho interpreted questions put by the police and the accused’s answers.  In his statement Mr Buraho deposes that:

    I tried to get Luka to answer the questions but he didn’t answer the questions.  He constantly kept saying let me go with my child and find me somewhere to sleep.  I believe that Luka was drunk and he was a little bit aggressive and sometimes pushing the police and saying let me go. Luka was saying in Swahili, “What have I done?”.  I told the police what Luka was saying that he had said, “I want to go, find me somewhere to sleep with my child”.  I was trying to calm Luka down.  The police told me to tell Luka that they needed him to come to the police station so that they could record his statement.  I told Luka this and he said “Okay okay, let’s go but I will needed to find somewhere to sleep.  I haven’t done anything wrong.”  The police told me to tell Luka that he wasn’t a suspect, he wasn’t under arrest but they need to record his statement at the station.  I told Luka what the police said and he said, “Okay, but I still want to find somewhere to sleep.    (Emphasis added)

    Mr Buraho deposes that about an hour later they were taken to a police station.  Mr Buraho told the accused that the police were going to record the interview.  Mr Buraho’s statement describes the ensuing exchange with the accused:

    When I said this to Luka, he said, “Yes, okay”. Luka was still a bit aggressive and I kept calming him down and I just told him that they wanted to ask him some questions about the fire.  I said to Luka, please give them the answers to the questions so they can find out what has happened.  I remember Luka saying, “I didn’t kill my wife, let me go.”  Luka kept saying this to me when the police were not there.  That’s when I was saying to Luka to calm down and just answer the questions because that’s all the police need from him.  (Emphasis added)

18. The recorded interview of the accused at the Sturt Police Station commenced at about 5:45 am.  Detective Shearer was also present.  By that time the accused had been without sleep for close to 24 hours.  Even though Detective Osborne testified that he thought that the accused had possibly slept for some time before the alleged arrival of the intruders it must have been obvious to him that, if the accused had slept at all on that night, his sleep was brief and interrupted.  Importantly, Detective Osborne made no attempt to ascertain just how much sleep the accused had had despite his request to be found somewhere to sleep which Mr Buraho had interpreted into English and conveyed to the police.

19. In the introductory part of the recorded interview Detective Osborne announced “I wish to make it clear that Luka is here of his own free will, and he is not being detained and he is not under arrest”.  Mr Buraho interpreted Detective Osborne’s statement into Kirundi.  The accused replied in Kirundi “yeah, but although I’m here.”  It is clear from that exchange that the accused perceived that his very presence at the police station was inconsistent with Detective Osborne’s declaration as to his status.

20. The position before the substance of the interview was conducted can be summarised as follows.  The accused, albeit as a result of his own actions, had been left in the early hours of New Years Day without a home and with the sole care of his infant son.  He was tired and his son was unsettled.  From the time that Officer Schatto separated him from the other bystanders his movements had been closely supervised by police officers.  He believed, as was the fact, that he was at serious risk of being accused and charged with the murder of his wife.  He was a recent migrant to Australia, unfamiliar with this nation’s laws, and from societies where the exercise of legal and de facto power was generally unbridled and unchecked.  Understandably, he would have preferred to have been found accommodation in which he could sleep rather than be delayed in a police station for questioning. 

21. The recorded interview commenced with Joseph in the interview room.  For much of the early part of the interview Joseph was crying until he finally went to sleep at about 6:10 am.

22. Detective Osborne gave the following evidence about Joseph’s presence in the interview room;

    The determination was made that we attempt to speak to the defendant with his son close by rather than separate them.  The conversation was with the defendant as a witness in this matter to provide us with information.  In addition to that, he appears to be a bereaved party to a death that we are investigating.  Keeping them together was the first option.  Subsequent to – as the conversation progressed and the child was uncomfortable and creating noise, attempts were made to find other people to care for him so that our conversation with the defendant could continue more smoothly.  Those attempts were difficult because of the time of day and the availability of resources.

23. Detective Osborne testified that he asked Detective Shearer to find someone to care for the child.  He explained that Detective Shearer left the interview room to make those attempts whilst Detective Osborne continued the questioning.  Detective Osborne’s evidence suggests a belief on his part that he and Detective Shearer were entitled to make decisions about whether the interview of the accused would proceed given Joseph’s unsettled state, and, if it did proceed, whether Joseph would remain or not.  In my view, Detective Osborne’s assumption reflects the power which he was in fact exercising over the movements of the accused at that time.

24. The prosecution seek to rely on the statements made by the accused during the interview, not by way of admissions, but to demonstrate a consciousness of guilt from their falsity.  The prosecution also contends that the lies told by the accused show a presence of mind which is inconsistent with his claim that his conduct in the early hours of New Years Day was driven by an irrational panic.  The false statements largely elaborate on the account, that he was assaulted by intruders and that he only discovered the fire when he went to the toilet sometime after the intruders had left.  The genesis of that account is found in the “000” call made by the accused at about 2:40 am and which I discuss further below.  It was repeated when he was questioned by police in the car park.  The inferences against the accused which might be drawn from those early statements are not much strengthened by the statements made in the recorded interview.  The elaboration by the accused in the recorded interview of his earlier story is not complex and is much like what can be expected when any person is caught in a lie.

25. In the course of his cross-examination the accused agreed that he wanted to tell the police his story in the hope of persuading them that he was not involved in his wife’s death, and to exclude him as a suspect.  In my view, those answers do not show that the accused made an independent choice to participate in the interview and answer as he did.  To my mind his answers simply reflect his resignation to the inevitability of the interview and disclose the strategy he adopted to deal with it.  Properly understood, his answers demonstrate the very mischief which results from a failure to give interviewees a real choice about whether to speak or to be silent.

26. I am prepared to accept Detective Osborne’s evidence that he had not reached the point of actually suspecting that the accused was responsible for the fire and death of his wife before he commenced the recorded interview even though, as he himself conceded, the possibility had occurred to him.  However, in my view, the circumstances known to Detective Osborne did, objectively, raise some grounds for suspicion.  The accused was the only other adult occupant of the unit.  He had not suggested an accidental cause for the fire.  Indeed the accused’s responses to Detective Osborne in the car park effectively ruled out accidental causes like smoking and candle flames.  Cooking was also an unlikely cause because on the accused’s account the family meal had been cooked before he and Malaika started drinking.  Perhaps more importantly the accused had given an incoherent and inherently improbable account about the involvement of unknown intruders.  Detective Osborne plainly did not give that story much credence.  If he had he would, in my view, have attempted to establish their identity, or some lead to them, much sooner than he did.  I acknowledge that discounting the credibility of the accused’s story does not, of itself, make the accused’s guilt a reasonable hypothesis on which to base a police investigation.  However it raised, as a real prospect, that further investigations and questioning would reveal inculpatory material

27. Other information, at the time unknown to Detective Osborne, but known to other police, did raise strong grounds for suspecting the accused.  The observations of the accused made by Officer Schatto and Boughen were, on one view, inconsistent with the behaviour of a man whose wife had just been murdered by intruders.  More importantly, well before Detective Osborne commenced the recorded interview Officer Fisher had ascertained that the gas heater had been ripped from the wall and that the deceased’s body had been found in the lounge room, and not in the bedroom as had been suggested by the accused.

28. In my view it is undesirable, both from the point of view of effective policing and from the perspective of protecting the procedural rights of a person who is ultimately charged with an offence, for a police officer to commence an interview of a very material witness without making reasonable efforts to accumulate at least the more important information collected by other police officers about the circumstances of the offence under investigation.  There is no reason apparent to me for Detective Osborne not to have made such an enquiry of Officer Fisher and every reason to have done so. If Detective Osborne had done so he could not have failed to have a strong suspicion of the accused.  Indeed as soon as that information was communicated to Detective Osborne he did come to suspect the accused and formally cautioned him.  I do not think that Detective Osborne deliberately turned a blind eye to that information; if he had done so the case for exclusion would have been over whelming.  Nonetheless, the circumstance that other incriminating information was known to police and was readily ascertainable is important in the exercise of the discretion to which I now turn.

1. In R v Swaffield[4] (Swaffield) the High Court emphasised that the discretion to exclude statements elicited from an accused by police questioning is exercised to ensure the fair trial of the accused.  The fairness of a criminal trial is ensured under Australian law by a matrix of common law and statutory rules, both substantive and procedural in nature.  The privilege against self incrimination and the heavy onus of proof imposed on the prosecution are rules of primary importance in that matrix. The admission of statements, elicited from an accused in circumstances which materially compromise his or her capacity to choose to speak or remain silent, would subvert the procedural and substantive rules to which I have referred.

   [4]    R v Swaffield (1998) 192 CLR 159 at [74].

2. The common law rule of evidence excluding involuntary statements buttresses the privilege against self incrimination where the capacity to choose is completely overborne.[5]  In less extreme cases a discretion may be exercised to protect the privilege.  In the exercise of that discretion the public interest in the efficient police investigation of offences is given substantial weight by striking a balance between it and the competing public interest in fair trials.  An evaluative judgment is called for having regard to a number of considerations including: the extent to which the interviewee’s capacity to choose has been compromised,[6] the likelihood, at the time that the statement was made, that he or she would be prosecuted,[7] impropriety associated with the questioning[8] and the reliability of the statement.[9]  The admission of answers to a comprehensive police interrogation of a person who is likely to be charged, and is under substantial psychological pressure to answer police questions, would significantly undermine the privilege against self incrimination.  It is for that reason that the admission of such a statement may be procedurally unfair and is liable to be excluded in the exercise of the discretion.

   [5]    R v Swaffield (1998) 192 CLR 159 at [74]

   [6]    R v Swaffield (1998) 192 CLR 159 at [95].

   [7]    R v Swaffield (1998) 192 CLR 159 at [94].

   [8]    R v Swaffield (1998) 192 CLR 159 at [77].

   [9]    R v Swaffield (1998) 192 CLR 159 at [78]

3. In accordance with Swaffield[10] I will deal in turn with voluntariness, reliability and the overall discretion.

   [10]   R v Swaffield (1998) 192 CLR 159 at [69]-[70] per Toohey, Gaudron and Gummow JJ; [120] per Kirby J.

4. I am satisfied that the statements were made voluntarily.  There is no question here of compulsion or inducement sufficient to overbear the will of the accused. 

5. The unreliability discussed in Swaffield is the risk of an untrue confession.[11] The issue of reliability arises only obliquely, if at all, in a case when the statements of the accused are tendered to show a consciousness of guilt. The question in such a case is not whether the statements of fact are reliable because it is the very prosecution case that they are false.  If reliability is an issue at all, the question is perhaps whether the false statements are reliable evidence of a consciousness of guilt.  Drawing an inference of guilt from false statements is always problematic but, in my view, the circumstances in which the accused was interviewed does not make that exercise any more difficult in this case.

   [11]   R v Swaffield (1998) 192 CLR 159 at [11]-[18] [27] per Brennan CJ; [76]-[77] per Toohey Gaudron and Gummow JJ; [124] per Kirby J.

6. I turn to the question of the overall discretion and forensic disadvantage.  In R v Bueti[12] (Bueti) Doyle CJ recognised that it may be unfair to receive a police interview of an accused, if he or she has not been cautioned, even if the police did not at the time suspect the accused.  Doyle CJ said:[13]

   It is the unfairness of the use at trial, of answers obtained without the administration of a caution, which gives rise to the judicial discretion to exclude answers obtained in this way, even though they are made voluntarily. The discretion does not arise only if and when the unfairness might make the admissions unreliable, but also because "no confession might have been made if the investigation had been properly conducted": see Duke v The Queen (1989) 180 CLR 508 at 513, per Brennan J.

   There is one other matter to bear in mind when considering the present case. As I said in R v Murphy (1996) 66 SASR 406 at 412:

   Because the ultimate question is one of unfairness, in the sense of unfairness arising from the use of answers in evidence, one cannot be dogmatic in the statement of relevant principles.

   The fact that an interrogation has reached the accusatory stage is an indicator that fairness will require that a caution be given before further questions be asked, if the answers are to be used at trial. But there may be other circumstances that make it unfair to use answers obtained without the administration of a caution. As I said in R v Murphy (at 414), the requirements of fairness are not to be turned into fixed categories, and the decided cases should not be taken as stating exhaustively what may be required if fairness is to be observed. While it is possible unfairness in the use of the answers at trial that enlivens the discretion, the fairness of the manner in which the police dealt with the suspect becomes relevant.

   In the present case the trial judge found, on the voir dire, that in light of the acceptance by the detectives of what Mr Bueti said, there were not reasonable grounds to suspect him of the commission of an offence. Although the test of whether there are reasonable grounds to suspect a particular person is expressed in objective terms, the existence of such grounds must depend, to some extent, on the view taken by the relevant police officers of the information provided to them. To my mind it would, for example, be impractical for the court to say that in a given situation if the relevant police officers had disbelieved most of what was told to them they would have had reasonable grounds to suspect the commission of an offence, and on that basis to hold that a caution should have been administered, even though the very reason for the police not administering the caution was that they genuinely believed the information given to them…

   However, when considering whether a caution should nevertheless have been administered, the following matters need to be taken into account. In the light of the admissions made by Mr Bueti, an inference that he intended to encourage the commission of the offence could be drawn relatively easily. All that would be required to give rise to reasonable grounds for suspecting that Mr Bueti had committed an offence would be a change of attitude to the tenor or nature of the conversation between Mr Bueti and Mr Morrissey. In short, Mr Bueti had already put himself in a position in which the only remaining issue was his intention in communicating with Mr Morrissey the information about Mr Versace.

   I accept that the police officers were not intending to question Mr Bueti with a view to ascertaining whether he had an answer to an allegation made against him, and with the intention of charging him if he did not. Nor were they treating him as a definite suspect. But they were intending to, and did, undertake a reasonably thorough interview of him on matters that would touch upon a possible commission on his part of an offence. In the light of what the detectives had been told, the detectives were intending to explore a topic through which ran a rather fine line dividing innocence from guilt. Another way of expressing the matter is to say that on the information provided by Mr Bueti, the police had sufficient evidence to charge him with an offence if their belief about his intention, when communicating the relevant information to Mr Morrissey, were to alter.

   I consider that under those circumstances fairness did require that a caution be administered to Mr Bueti.  

   [12] (1997) 70 SASR 370.

   [13]   R v Bueti (1997) 70 SASR 370 at 377-8.

7. In my respectful opinion the above passages show that it is the closeness of the connection between the police questioning and the charging and the trial of the accused which will critically affect the fairness of admitting the interview.  Doyle CJ ultimately admitted the interview in Bueti because the failure to caution was not deliberate and because the evidence allowed a finding that Mr Bueti would have continued to answer questions even if a caution had been administered. 

8. I am persuaded, for the following reasons, that the admission of the recorded interview of the accused would forensically disadvantage him.  First, the totality of the evidential material known to police at the time of his interview pointed strongly to the accused as the offender.  No reason has been proffered for the failure to properly brief the questioning officers before they commenced the interview.  The provision of a caution when the interviewing officer holds a reasonable suspicion is an important protection of the privilege against self incrimination because, if such a belief is held, the suspect is likely to be charged and the questioning is likely to be calculated to elicit incriminating answers.  However, as the above passage from Bueti shows, those circumstances may exist in the absence of a subjectively held suspicion.

9. In this case the interview may easily have taken a different hue if the accused had departed from his obviously improbable account.  Perhaps more importantly, given the improbability of the accused’s account and the exclusion of the most obvious innocent causes of the fire, there was a real prospect that an investigation of the fire scene would reveal incriminating evidence.  The interview was systematic and comprehensive and was therefore likely, if the accused were charged, to provide substantial evidence against him. 

10. Secondly, Detective Osborne knew that the accused was tired and that he would have preferred to find a place to sleep than to be questioned, particularly given Joseph’s unsettled state.  Detective Osborne did not expressly and clearly offer the accused a choice.  Instead, Detective Osborne proceeded on the assumption that the questioning of the accused should take priority over his personal comfort and the care of his son.  That position might have been acceptable if the accused was a suspect and had been cautioned, but that was disavowed by Detective Osborne.  It might also have been acceptable if there really was some urgency in identifying the intruders, but that was plainly not the focus of Detective Osborne’s interrogation. 

11. Thirdly, I am also satisfied that the circumstances placed substantial pressure on the accused to stay and answer questions.  He was dependent on an interpreter and had no understanding of his rights and obligations in the context of a police investigation.  Indeed, the interpreter had given the accused to understand that he should, or at least that it was better, that he stay and answer the questions.  Importantly, unless and until the police arranged for the assistance of a welfare agency the accused had nowhere to go. 

12. Finally, I am satisfied that the accused would have chosen not to answer questions consistently with the preference he had expressed to Dr Masika and Mr Buraho.

13. In all of the above circumstances the continued questioning of the accused was calculated to undermine his procedural right to silence.  The interview does not add substantially to other evidence contradicting the accused’s defence that his acts are explicable on the basis of panic and alcohol.  For that reason the public interest in securing the conviction of offenders does not call strongly for the admission of the evidence.

14. I find that it would be unfair to the accused to admit the evidence of the recorded interview and I therefore exercise my discretion to exclude it.

    A violent relationship

15. The tragic events of New Years Day 2009 had their roots in the tempestuous relationship between the accused and Malaika.  An assessment of how and why the accused acted as he did on that morning can only be made in the context of that relationship.

16. The accused’s relationship with Malaika was marred by recurring violence which continued, but with less frequency after their move to Adelaide.  Some of those incidents occurred in home units in Melbourne in which Malaika’s sister resided.  On other occasions the accused made violent threats against Malaika’s family at their family home.  The last incident occurred at the home of friends in Adelaide.

    The beating at Sunshine

17. In approximately December 2006, Arilette Murekezi and her then partner, Jeremy Rizinda,[14] moved into a unit in Sunshine, Victoria with her sister, Malaika, and the accused.  They celebrated with a party.  It is Arilette’s evidence that the accused and Jeremy bought alcohol and eventually got drunk.  They shared half a box of beer before Jeremy lay down on the couch.  The accused kept drinking on his own.  Arilette and Malaika retired to their own rooms at the same time.  Both were pregnant and it was Arilette’s evidence that neither of them had been drinking.  Arilette was later woken when Malaika came into her bedroom.  Arilette testified that her sister was crying and told her that she had been beaten by the accused.  The accused then came into the room and denied that he had beaten her.

    [14]   I will hereinafter refer to Arilette Murekezi as Arilette and Jeremy Rizinda as Jeremy to facilitate the narrative of the events in which they were involved.

18. Arilette gave evidence that the accused then became very aggressive towards Malaika and “held her shoulder and kept her head down and kept punching her in the back”.  Eventually Malaika managed to escape.  When Arilette tried to leave the room the accused grabbed her hair and smashed her onto the wall.  Arilette then spent the night at her parent’s house.

19. Jeremy testified that he did not see any trouble between the accused and the deceased while living at the unit with them in Sunshine, but he gave some evidence about a fight between him and the accused.

20. I accept Arilette’s account of this incident.  She was a convincing witness.  Her account rings true.  It is consistent with the other evidence of the accused’s conduct towards Malaika which I accept.  I suspect that Jeremy has, by reason of his own alcohol consumption, an imperfect recollection, or that, for other reasons, he has been selective in his recollection.

    Spotswood balcony incident

21. After the incident at Sunshine Arilette and Jeremy moved into a second floor unit in Spotswood, and the accused and Malaika visited them there.  The accused and Jeremy went out and came back with wine.  Arilette gave evidence that the accused became drunk and started talking a lot about his father in-law, Mr Ettiene Murekezi.  The accused complained that Mr Ettiene Murekezi considered himself a very intelligent man, implying that the contrary was the fact. The accused and Jeremy kept talking about Mr Ettiene Murekezi, and complained that his daughters were very selfish women who should be returned to him.  They also complained that the money Ettiene had sought for their dowry was excessive.

22. Arilette’s evidence was that the accused would often say things about his father in-law, even when he was not drunk, and that his tone of voice was angry when he did so.  Arilette testified that the accused and Jeremy then disagreed about something.  The accused became very angry and tried to punch Jeremy.  Malaika intervened imploring the accused to stop.  Arilette testified that the accused then threatened Malaika saying “I can take you outside and drop you from the floor downstairs and I will be watching you”.  He made an explicit reference to the injuries she would suffer if he did so.  The accused made attempts to pull Malaika outside but Jeremy intervened, and pulled Malaika back.  The accused and Malaika left when Arilette phoned the police.

23. Jeremy testified that the accused and the deceased had visited him and Arilette at Spotswood about twice.  It is his evidence that the women also drank on those occasions and he denied there was an argument or fight between the accused and Malaika.

24. I accept Arilette’s evidence of this incident for the same reasons I gave in [74] above.

    Returning to parent’s house

25. Malaika’s mother, Ms Stephanie Misago, testified that after Malaika left home she would still visit about once a fortnight but the accused would not come with her.  Mr Ettiene Murekezi gave evidence that Malaika had come to stay with them for about three weeks when she was about seven months pregnant. 

26. According to Ms Stephanie Misago sometime after Joseph was born Malaika left the accused and returned to live with her parents. Ms Stephanie Misago testified that Malaika would “come and live with us and then go back again and then come back again”.  Malaika did this twice, staying for about a week each time, and on the third occasion she did not return to the accused, but stayed with her parents for about two weeks, until she was able to find a unit of her own.  Joseph was about nine months old at this time. 

27. The unit that Malaika moved into was very close to her parent’s house.  Malaika saw her parents often, visiting their house to share meals.  Ms Stephanie Misago testified that the accused came many times to Malaika’s unit, and if Malaika was not there, he would continue on to their house.           Ms  Stephanie Misago’s evidence was that the accused came to their house with a hammer banging on everything and threatening that he would “smash all of [her] children and [he] would take his child away”.

    The early morning incident

28. In about November 2007 on one occasion the accused arrived at the house of his in-laws early in the morning, when they were still asleep in bed.  Ms Stephanie Misago testified that one of the windows was broken and that she heard the accused threaten “I will come with the hammer one day and smash everyone and take my child away”.  The accused ran away when the police were called.

29. Later that morning the accused telephoned the family home many times.  Ms Stephanie Misago answered the first call.  The accused threatened Ms Misago, saying that he would “come with the hammer and kill all your children and one of your daughters, [R], I will do my best to impregnate her”.  Mr Ettiene Murekezi gave evidence that the accused had telephoned the house that day about 10 times, until he disconnected the phone.  The accused called and made the same threats to Mr Ettiene Murekezi, who said the accused sounded very angry.  The accused kept repeating the same thing each time he called.

    The peanut-grinding incident

30. Ms Stephanie Misago described yet another occasion when the accused behaved in a threatening manner at her home.  On that occasion the accused rang the door bell and it was answered by one of her children.  The accused was “banging everywhere” and saying again “I will come with a hammer and smash everything and take all of your children away”.  Malaika came from the garage.  On that occasion she was grinding peanuts when she heard the noise and asked the accused what he was doing there.  The accused complained that Malaika had wrongly kept Joseph from him.  He said “do you have a child before you marry me? No, of course you didn’t. So, this child is mine”.

31. Mr Ettiene Murekezi gave evidence that the accused came to his house about five times.  The accused was never let into the house because he was scared of him.  When the accused came to the house he would be bang on the house and say, in a very aggressive tone, “it’s me, Lukasambongo I want my child and my wife.  If you want my money I will be paying it back step-by-step, very small amounts.”

32. I accept the testimony of Ms Stephanie Misago and Mr Ettiene Murekezi.  They were convincing witnesses.  The account of events which they gave was coherent and not, on the face of it, embellished.

    Beating at Fulham

33. Christina Kabura migrated to Australia in 2005 with her husband Bernard Nzonkirantevye and their four children.  They subsequently had two more children.  Ms Kabura and Mr Nzonkirantevye knew the accused from the refugee camp in Tanzania.  They met Malaika in about July 2008 when the accused and Malaika moved to Adelaide from Victoria.  Ms Kabura and Malaika became very good friends who saw each other often.

1. The accused and Mr Nzonkirantevye would drink together on a regular basis, two to three times per week.  They would drink whisky, wine and beer.  Ms Kabura said that neither she nor Malaika joined in the drinking, but that was contradicted by Mr Nzonkirantevye who gave evidence that sometimes Malaika would join in the drinking, but that she would not get drunk.  Ms Kabura testified that, when the accused became drunk, he “would become a very aggressive person and start arguing a lot.” 

2. In about August 2008 the accused and Malaika visited Ms Kabura and Mr Nzonkirantevye at their house.  On this occasion the accused and Mr Nzonkirantevye drank throughout the afternoon, and at about 9:00pm, Mr Nzonkirantevye and Ms Kabura witnessed an argument between the accused and Malaika.  Ms Kabura testified that she saw the accused slap Malaika on the face, and when the accused tried to punch Malaika, she and her two eldest sons, the eldest being 17 years old at the time, stepped in between them.  The incident occurred in the living room.  Ms Kabura told the accused that she would call the police and he stopped.

3. It is Mr Nzonkirantevye’s evidence that the fight occurred in the room which the accused and the deceased were sleeping for the night.  He testified that he and his wife heard voices arguing and they went to see what was going on.  Mr Nzonkirantevye gave evidence that the accused was holding Malaika around the collar of her clothing and that he saw the accused slap Malaika more than once.  He said that Malaika was trying to escape.  He and his wife asked them to stop arguing and they did.  The accused and Malaika stayed the night and went home the next morning.

4. Ms Kabura gave evidence that whenever the accused became drunk he would he would raise the difference between his father-in-law’s ethnicity as a Tutsi, and his own.  On the other hand, Mr Nzonkirantevye gave evidence that when he spent time with the accused he did not talk about Malaika’s family, or her father.

5. I accept the evidence of both Ms Kabura and Mr Nzonkirantevye as generally truthful and reliable.  They impressed me as witnesses who understood the solemnity of their duty and did their best to honestly and accurately give their accounts.  The small difference between their descriptions of the assault is an understandable variation in the recollection of an upsetting event.  I prefer Ms Kabura’s testimony that the accused had raised the question of his        father-in- law’s ethnicity particularly having regard to Mr Nzonkirantevye’s disclosure that he had some difficulties with recollection, but do not accept that he did so on every occasion he became drunk.

   Accused’s denials of relationship evidence

6. The accused denied any recollection of the police intervention in arguments between himself and Malaika and her family in Melbourne.  He testified that he had no recollection of beating Malaika at a party to celebrate Arilette and Jeremy moving into another house.  He denied the argument in the unit in Spotswood in which he had threatened to push Malaika off the balcony and said that he did not remember it.  He agreed that Malaika had moved into a unit of her own but claimed that that separation was not acrimonious.  The accused denied smashing the windows of Malaika’s unit.  He denied making threats to kill members of Malaika’s family with a hammer.  The accused testified that the only argument involving Bernard Nzonkirantevye was on an occasion before Christmas 2008 when he alleged Mr Nzonkirantevye threw Joseph on the floor.  The accused testified that he thinks he did slap Malaika at the home of Bernard Nzonkirantevye and Christine Kabura but that he can not now remember it.

7. The accused’s denials mixed, as they were, with claims to have no recollection of the events deposed to by others were unconvincing.  I reject his evidence.  It gives me no reason to doubt my favourable assessment of the evidence of the witnesses who deposed to his aggressive behaviour towards Malaika in the past.

8. I remind myself that the violent conduct deposed to by the witnesses does not entail, either as a matter of logic or common experience, the conclusion that the accused intended to kill his wife.  I warn myself, and remain vigilant, against the danger of that form of reasoning.  In particular, it has no direct bearing on the accused’s belief as to whether Malaika was alive or dead when he lit the fire.  It does however show that the bonds of affection between the accused and Malaika were fragile.  It shows that the accused could become very angry when thinking about or discussing Malaika’s father.

   Subsequent versions of events

9. Nosenti Nakumryango had known the accused from the refugee camp in Tanzania.  Mr Nakumryango moved to Australia in 2005.  He did not see the accused until after the fire, when the accused visited Mr Nakumryango at his home.  They did not consume alcohol.  During that visit the accused told Mr Nakumryango that he had moved to South Australia because he and Malaika liked it and it was a better place.  The accused went on to tell Mr Nakumryango that he and Malaika would argue about her parents and that was why they moved to South Australia.

10. During the same visit, the accused told Mr Nakumryango about the night of the fire.  The accused told Mr Nakumryango that he and Malaika had both been drinking and started arguing over the Centrelink payment recevied for Joseph. The accused told Mr Nakumryango that the arrangement was that his Centrelink payments went into his own account and that Malaika’s benefit and Joesph’s endowment went into her personal account.  It is an agreed fact that between June 2008 and January 2009 a family tax benefit and parenting benefit were paid into a Westpac account in Malaika’s name.  Mr Nakumryango testified that the accused said that he had wanted control all of the family’s benefits.  Malaika had refused, saying that she wanted to keep the Joseph’s money for the future.  The accused confided in Mr Nakumryango that he was unhappy with that arrangement.

11. The accused told Mr Nakumryango that after arguing and fighting with his wife the house was on fire and that his wife died in the fire.  By fighting Mr Nakumryango meant “physical fighting”.  According to Mr Nakumryango the accused also told him that Malaika had died from the fighting.  Mr Nakumryango testified that the accused admitted that he had lit the fire and then took Joseph outside.  The accused told Mr Nakumryango that the fight was in the living room and that when Mailaika was dead he had moved her to the main bedroom and set fire to the bedroom.  The account given to Mr Nakumryango apart, from some apparent confusion as to the position from which Malaika was moved, perhaps due to a reference to the sofa bed in the lounge room, accords closely with the evidence of the accused’s conduct.

12. The accused denied that he told Mr Nakumryango that he and Malaika moved to Adelaide because, in Melbourne, they had been arguing about her parents.  In cross-examination it was put to the accused that he confided in Nosenti Nakumryango that he and Malaika came to Adelaide to make it more difficult for Malaika to return to her family.  The accused denied that suggestion. That reason for moving to Adelaide might be implied from Mr Nakumryango’s evidence but was not expressly stated by him. 

13. Filbert Hakizimana had met the accused once in Adelaide before the fire, at which time they had exchanged telephone numbers.  His statement was received into evidence.  After the fire Mr Hakizimana telephoned to accused to find out from him what had happened.  According to Mr Hakizimana, during that call the accused told him that his wife had been drinking and was drunk.  The accused said that there was a heater and that the sheets from a bed caught fire, and that was how the fire started.  The accused said that he had also been drinking, and that when the fire started he had tried to rouse his wife.  The accused told him that his wife had said “I can’t get up. I can’t get up”.

14. The accused could not recall speaking with Mr Hakizimana.

15. In a statement received into evidence Angeline Rizinda deposed that some time after the fire the accused told her that the fire was caused by cooking a barbeque on the stove and that he had unsuccessfully tried to rescue Malaika.  The accused denied speaking to Angeline Rizinda.

16. Jeremy testified that in a telephone conversation with the accused after the fire, the accused had told him that the fire was caused because he had left fish cooking on the stove.  The accused admitted telling Jeremy that story but explained it by saying that he was drunk.

17. I accept that the accused made the statements to the prosecution witnesses to whom I have referred.  I do not place much weight on the false accounts attributing the fire to cooking or other accidents.  It would have been difficult for the accused to admit the conduct of which he has testified before me.  The false and inconsistent statements nonetheless detract from his credit.

    The accused’s evidence

18. The accused testified that on the day of the fire he and Malaika had bought a bottle of whiskey, a four litre cask of wine and some beer.  They ate rice, beans and grilled meat for dinner. 

19. The accused testified that after midnight he telephoned Arilette and Jeremy to wish them a happy New Year.  The evidence, to which I will refer in greater detail below, shows that there were four telephone calls which were connected and resulted in conversations.  He gave evidence that after the last of the phone calls to Arilette Malaika, went to bed but sometime later awoke and asked him for some beer.  The accused had been drinking in the living room. He told her that it was too late and that the shops were closed.  According to the accused he and Malaika argued over this.  In the course of the argument Malaika pushed him down onto a chair.  He then stood up and punched her with all his force.  She hit her head against a wall.  The accused continued:

    After she fell down I tried to pull her arm three times and she would not wake up and I was afraid. …I found that she was dead and I was afraid.

20. The accused testified that he kept walking inside the house and tried again to wake his wife up but could not rouse her.  Her eyes were closed but he could not see any blood on her face.  He testified that he pulled the heater away from the wall so that others would think she died because of the fire.  The accused equivocated for some time in a way which suggested that the fire had started spontaneously before admitting that he ignited the gas by striking a match.  In his evidence in chief the accused first testified that he phoned the police after he lit the fire but then later said he that he could not remember whether he rang the police before or after he lit the fire.

21. The accused testified that he took Joseph from the unit after igniting the fire.  He made is way from the bedroom through the kitchen and then to the exterior door of the unit which led to the landing, where he stood for a while before going downstairs.  When asked why he waited on the landing the accused answered “that’s what came into my mind.”  The accused said he heard nothing from inside the unit while he stood there.  The accused testified that when he left the unit there was fire “everywhere in the living room” and that the furniture was on fire.

22. The accused agreed that there were smoke detectors in the ceiling of his unit but also testified that he had bought smoke detectors from a shop in the central market precinct because they were cheap.  He had left them in the cupboard in the passage way. 

23. The accused was asked why he had lied to the police about fighting with intruders and only finding the fire after he had gone to the toilet.  He said “I was trying to find a way to free myself”. 

24. The accused denied intending to kill his wife when he hit her.  He denied intending to cause her serious harm.  He was asked whether he intended to kill his wife by lighting the fire.  He answered:

    After hit her, from that found out she was dead, I tried to find a way to free myself after that happened because I lost my wife after what happened to me.

    In cross-examination the accused asserted that he liked Mr Ettiene Murekezi.  He agreed that a substantial dowry had been negotiated.  The accused testified that the sum was reduced to $16,000 from $20,000 but he did not pay it.  He agreed that in Kirundi culture “if there is no dowry, you are not welcomed in that family”.  He denied that he ever argued with Malaika about the frequency of his drinking and becoming drunk.  He agreed that they argued about money.  He would from time to time tell her that he didn’t have any money left and would ask her to use her card. 

25. He said that he would lose his mind when he was drunk.

26. In cross-examination the accused said he could not remember whether Malaika was already in bed at the time of the third conversation with Arilette.  He then agreed, however, that he had told Arilette that Malaika was in bed and that would have been the fact.  He denied complaining to Arilette about Mr Ettiene Murekezi.  He claimed that he simply wanted to talk to Arilette and Jeremy about “the holiday”.  He described it as “just a regular conversation”.  As to the other calls he made on that night the accused explained that he liked making calls and that he just wanted to speak to people about the New Year.  Amisi Jumma is a male acquaintance that he knew from the refugee camp but he could not recall calling him.  He could not recall attempting to phone Malaika’s sister Desire.

27. The accused agreed that Malaika was not wearing clothes when she asked him to get more beer.  When Malaika pushed him she said “go and buy.”  The accused admitted that he punched Malaika “with all my strength”.  He denied that the argument was over money.

28. When first asked in cross-examination, the accused testified that Malaika did not move from where she fell and that he did not drag her body anywhere else in the room.  However, when the accused was asked to draw a stick figure to show where his wife lay on the floor he said “I picked up the body and put it around the bed”.  The accused explained that he pulled his wife to that position because he was “trying to see if she is still … or alive”.  The accused agreed that he knew that a person who was alive continued to breathe and have a heart beat.  The accused testified that he felt for, but did not detect a pulse after moving Malaika around to the other wall. 

29. The accused in cross-examination also testified that he placed his hand on Malaikas’s chest.  He equivocated as to whether or not she was naked at one point saying that he did not remember whether she was clothed or not.  He said that he put his hand to her chest but not his ear.  He could not say how long he spent checking for a heart beat.  On more direct questioning he testified that he wept as he sat next to his wife.  When asked why he had not mentioned that in his evidence in chief the accused replied “[p]erhaps because this happens a long time ago I have forgotten”. 

30. The accused agreed that he pulled the heater from the wall in an effort to make the fire as large as he possibly could because he wanted to make her death look like an accident.  He could not remember going outside to make the first “000” call to police.  The accused said that when he first phoned the police he wanted them to see his wife.  He said that he did not request help for his wife because someone who is drunk is less knowledgeable.

31. The accused agreed that he wanted to burn his wife “because I had the problem and it happened, … my wife was dead and I thought they would think she died because of fire”.  He said that he lit the fire with Joseph still in the bedroom.  As he walked from the bedroom with Joseph it looked to him as if the whole living room was on fire.  He said that he stood on the landing for a matter of seconds.  When asked why he dragged his wife into the narrow space between the sofa bed and the wall he answered “that is when somebody was drunk is not feeling very intelligent”.

32. The accused repeatedly testified that he deliberately lit the fire because his wife was dead.  He said “I didn’t intend that happen, I was trying to find out how I could free myself”.

    The relevance of belief that victim was dead

33. Before explaining my ultimate findings it is necessary to consider several legal issues concerning the elements of murder at common law and pursuant to s 12A of the CLCA which are somewhat problematic in the context of this case.

34. I deal with first murder at common law.  An accused’s mistaken belief that a victim is dead before he or she inflicts the injury which in fact causes death, necessarily negates an intention to kill.  Equally, a belief on the part of an accused that a victim is dead negates the foresight of the probability that his or her acts will cause death which is a necessary element of reckless murder.  Even if the foresight required for reckless murder is merely foresight that the wrongful conduct will create a substantial risk of death, a belief that the victim is already dead necessarily negates that foresight.

35. On the other hand, there is strong authority for the proposition that, if an offender executes a plan to kill another by a series of steps which are calculated to end in the death of his victim, it matters not that the ultimately fatal step is taken at a time when the offender mistakenly believes that his victim has already died.[15]  A possible theoretical foundation for that proposition, quite apart from its practicality as a matter of legal policy, is that the course of conduct is treated as a single compendious act executed with the continuing intention with which it was initiated.  However, the postulation of a single intention is fictional because the subsequent formation of a belief that the victim is dead, necessarily, entails a change in the relevant state of mind. 

    [15]   R v Church [1966] 1 QB 59, Thabo Meli v The Queen [1954] 1 WLR 228.

36. An alternative explanation is based on causation.  If an accused, with the necessary culpable intention, so incapacitates his victim by the infliction of harm that his victim is unable to escape from subsequently occurring lethal circumstances for which the accused is also responsible, then it matters not that the accused believed that his victim was dead when he left him vulnerably exposed to those circumstances.  In such a case the immobilisation caused by the accused’s assault committed with murderous intent remains a substantial cause of death even though death results from subsequently occurring conduct or circumstances:  The accused cannot rely on the conduct or circumstances for which he is responsible as a novus actus interveniens.[16] 

    [16]   Cf Howard’s Criminal Law (5th ed, 1990) 54-58.

37. In my respectful opinion the latter explanation of the decision in Thabo Meli v The Queen[17] should be preferred.  However, in this case the prosecution does not contend that the accused acted in accordance with a preconceived plan to immobilise and then incinerate his wife.  That concession is plainly right.  There is insufficient evidence to find that the accused had acted in execution of a preconceived plan.   Nor does the prosecution contend that the accused intended to cause Malaika grievous bodily harm when he, on his own admission, assaulted her before setting the fire.  However, by his own testimony the accused punched Malaika with all the force he had.  The inference which could be drawn about the extent of her injuries from the accused’s decision to burn down the unit is also probative of an intention to cause serious harm.  Nonetheless, given the prosecutor’s submission and the way in which the prosecution was conducted I will not further consider the accused’s guilt on this basis.

    [17] [1954] 1 WLR 228.

38. So far I have considered only the implications of a positive belief that the victim is dead on the subjective elements of common law murder.  It is necessary to also consider the position when the offender mistakenly believes that the victim is probably dead but nonetheless entertains the possibility that the victim is still alive when the fatal act is committed.  In my view, in those circumstances the offender is guilty of murder if he or she has an intention to kill in the event that the victim is still alive.  That is so, it seems to me, because conduct may be engaged in with an intention to kill even if accompanied by a belief that the conduct is unlikely to achieve what is intended.  It is sufficient that the accused intends to do whatever he or she can to bring about the desired result.  In the event that, against the odds, the conduct causes death, the offender is guilty of murder because, as unlikely as the result might have appeared, it was intended. 

1. The soundness of the proposition put in the preceding paragraph is perhaps most obvious in a case where an offender directs lethal force at a particular location in the hope that the intended victim is there even though he believes that the victim is probably elsewhere.  If the victim is, unfortunately, in the targeted location and is killed, the offence of murder is committed. 

2. However, the same approach cannot be applied to reckless murder.  If an accused does not intend to kill and believes that the victim is probably dead it is difficult to see how the offender can believe that his or her conduct will probably cause death or grievous bodily harm.  Even if the mental element for reckless murder is belief that the offenders conduct will create a substantial risk of very serious injury or death, a belief that the victim is probably dead would negate the mens rea necessary for reckless murder.

   Constructive Murder

3. Section 12A of the (CLCA) provides:

   12A—Causing death by an intentional act of violence

   A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion ¹ ), and thus causes the death of another, is guilty of murder.

   Note—

   1         ie an offence against section 81(2).

4. I will refer to the offence in furtherance of which the act of violence is committed as the foundational offence and to the nature of the liability created by s 12A as constructive murder.

5. Before I turn to the proper construction of the section it is convenient to set out the common law of felony murder which it supplanted and which therefore provides the context in which s 12A of the CLCA must be interpreted.

6. At the commencement of the 20^th century the then felony murder rule was stated in wide terms as the killing of a person in the commission of a felony.[18]  Over time signs of amelioration of the rule appeared in a number of authorities, which stipulated an additional element that the killing be caused by an act of violence,[19] but on occasions the statement of the rule reverted to its wider, harsher form.[20]  An even more modified rule became settled in abortion cases to the effect that the act of violence must be of a kind “that a reasonable person, in the position of the accused would have reasonably expected [ to ] cause death or grievous bodily harm”.[21]

   [18]   R v Radalyski (1899) 24 VLR 687.

   [19]   R v Dowdle (1900) 26 VLR 637 at 634; DPP v Beard [1920] AC 479 at 493.

   [20]   Ross v The King (1922) 30 CLR 246.

   [21]   R v Carlos [1946] VLR 15 at 19; R v Brown [1949] VLR 177 at 181; R vRyan [1966] VR 553 at 563.

7. The common law rule articulated by the Full Court of this Court in R v Van Beelen[22] was that felony murder consisted of causing “death in the commission of, or in furtherance of the commission, of a felony involving violence or danger.”[23]

   [22] (1973) 4 SASR 353.

   [23] (1973) 4 SASR 353 at 403.

8. The policy rationale for the common law felony murder rule was that a “perpetrator should be liable for the unintended consequences of his actions in the course of the felony because in engaging in a violent or dangerous felony he must accept responsibility for what occurs in the course of that felony, even though unintended”.[24]  That rationale is most obvious in the case of an unintentional killing committed in the course of crimes like robbery, rape and escaping custody.[25]

   [24]   R v R (1995) 63 SASR 417 at 421; R v Serne (1887) 16 Cox CC 311.

   [25]   DPP v Beard [1920] AC 479; Appleby v The King (1940) 28 Cr App Rep 1; R v Jarmain [1946] 1 KB 74; R v Ryan [1966] VR 553; R v Van Beelen (1973) 4 SASR 353 at 403.

9. Considered in its historical context, s 12A of the CLCA appears to effect the following reforms of the felony murder rule. First, it replaces felonies as the foundational offence with offences carrying a maximum penalty of ten years or more. This reform removes the anachronism of the felony/misdemeanour distinction and limits the scope of constructive murder to offences serious enough to act as foundational offences by reference to the maximum penalty.

10. Secondly, by requiring an intentional act of violence, it removes from the scope of constructive murder death caused by pure accident.  In R v CMM[26] Martin J gave consideration to the question of whether the expression “intentional act of violence” required the prosecution prove more than a voluntary and deliberate act.  Whilst his Honour found it unnecessary to finally determine the question he indicated that he was inclined to the view “that provided the act committed is one of violence, and this may depend on the state of mind of the actor, it is sufficient to prove that the act was voluntary.”[27]

    [26]   R v CMM (2002) 81 SASR 300.

    [27]   R v CMM (2002) 81 SASR 300 at 314.

11. In R v Butcher[28] the Victorian Court of Criminal Appeal gave detailed consideration to what constitutes an act of violence under that State’s equivalent “felony murder” section.  Whilst the Victorian section does not include the word “intentional” the Court considered the meaning of the word “violence” in this context and came to the view that it referred not only to physical force but included acts of intimidation and menaces. These reasons were given:[29]

    [28]   R v Butcher [1986] VR 43.

    [29] [1986] VR 43 at 53.

    When the words ‘act of violence’ and ‘crime the necessary elements of which include violence’ are used in s 3A, violence is used in a descriptive sense. ‘Act of violence’ means an act of a violent kind, for there is no legal definition of violence as such inside or outside which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is by definition an element.

    This view is also consistent with violence as understood during the development of the English language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity. It is not

    synonymous with the use of physical force, although physical force falls within its

    meaning. It is a word of wider significance in the law, as the cases show. Smith and Hall in their English-Latin Dictionary give as their first meaning of violence:

    ‘inherent overpowering force, whether physical or mental’. In the Oxford English

    Dictionary violence is defined as follows: ‘(Law) unlawful exercise of physical force, intimidation by the exhibition of this.’

    Howard and others are of the view that reference in the felony murder rule to an act of violence is misleading, ‘for the act which causes death may not be violent in any helpful sense’. He prefers, as we have mentioned, the use of the words ‘dangerous act’: Howard, Australian Criminal Law, (2nd ed), p 64.

    However, it seems to us that if the word violence in the phrase ‘act of violence’ is
    understood to be used in its etymological sense and in the descriptive way that it has been used in the cases, and to embrace actual force used to overcome or nullify resistance and as well, threats or menaces to induce fear and terror or to intimidate in order to remove or nullify resistance, the phrase is apt to express the type of act which is required to call into play the felony murder rule under s 3A.

12. This reasoning was adopted by Matheson J in R v Maurangi[30] and Debelle J, at first instance, in R v NJA.[31]  The element of an intentional act of violence seems therefore to require a volitional act which, in circumstances known to the accused are likely to result in the unrestrained release of force.

    [30] (2000) 80 SASR 295.

    [31] [2001] SASC 342.

13. Thirdly, and probably for reasons related to the last mentioned reform, it removed from the scope of the constructive murder rule, death resulting from a serious offence involving danger.  Offences committed in a dangerous manner are offences in the course of which death might ensue accidentally and without an intentional act of violence.  In many cases the involvement of a weapon in an offence will constitute an act of violence.  That will not always be so.  For example, a weapon may lead accidentally to the death of a person, other than an intended victim, preparatory to or after the commission of an offence without any actual violence, even in the extended sense of menace, adopted by the Victorian Court of Criminal Appeal.

14. Returning to the proper construction of s 12A of the CLCA, in my view, the ordinary meaning of the word violence is simply uncontrolled force.

15. There is no legislative definition of the phrase “intentional act of violence” in s 12A of the CLCA. In the Butterworths Concise Australian Legal Dictionary “violence” is defined as “unjust, unwarranted or unlawful use of force; violent conduct towards property or person, whether that conduct was intended to cause injury or damage.”[32]

    [32]   Peter Butt (ed), Butterworths Concise Australian Legal Dictionary (2004), 451.

16. In the context of the criminal law and the constructive murder rule, in particular, the word violence means an uncontrolled force which carries a real, in the sense of not remote, risk of personal harm.  In my view, a violent act is not intended unless the accused has an appreciation of surrounding circumstances, which, objectively viewed, make his act violent in the sense of unleashing unrestrained force which carries a risk of personal harm.  The following example illustrates, I hope, the relevance of the accused’s subjective appreciation of the circumstances which make his act violent.  To set alight to a car when no-one else is in the vicinity is probably not of itself, an act of violence.  To do so when someone is in the car, or nearby, will almost always be a violent act.  If an accused is not aware that someone is in the car, he or she, generally, will not have committed an intentional act of violence.  However, if the accused is aware of someone’s presence his or her subjective belief that the person will easily escape does not make his or her act any less an intentional act of violence.

17. The final construction issue to be dealt with is an obviously unintended consequence which would ensue if a too literal construction of s 12A of the CLCA were adopted. The problem is this. The basic offence of causing harm with intent to cause harm enacted by s 24 of the CLCA carries a maximum penalty of 10 years. Manslaughter carries a maximum penalty of life imprisonment. Both offences therefore qualify as foundational offences. Intentional acts of violence may be, and usually are, involved in the commission of both offences. Parliament could not have intended to attach a liability for murder if death results from the commission of those two offences. To do so would undermine the common law mens rea for murder in circumstances where the policy rationale for constructive murder had no application. Such a literal construction would create substantial incoherence in the rules of criminal liability for homicide.

18. That plainly unintended, if not absurd, result can and should be avoided by limiting the denotation of the foundational offence to offences other than manslaughter and offences committed for the sole purpose of causing personal harm. That construction is consistent with the High Court’s approach to the constructive murder provision of the Queensland Criminal Code. In Stuart v The Queen[33] (Stuart) the High Court considered the operation of s 302(2) of the Criminal Code (Qld). The relevant portion of s 302 is as follows:

    Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say …

    (2) If death is caused by means of an act done in the prosecution of an
    unlawful purpose, which act is such a nature as to be likely to endanger
    human life:

    …is guilty of murder.

    [33] (1974) 134 CLR 426.

19. In Stuart the appellant had been charged with murder arising out of the death of a person caused by a deliberately lit fire in a nightclub.  The purpose of the act of arson was to extort money from the owners and not to kill or cause harm.  In explaining the operation of the provision Gibbs J distinguished the decision of the High Court in Hughes v The King[34] in the following way:[35]

    It appears clearly from the words of the section, and it has been laid down by this Court, that the act of the accused which caused the death cannot at once constitute the dangerous act and the unlawful purpose: “The paragraph relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful.” The facts of Hughes v The King clearly exemplify this principle; the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased.

    [34] (1951) 84 CLR 170.

    [35]   Stuart v The Queen (1974) 134 CLR 426 at 438.

20. Gibbs J held that s 302 applied on the facts in Stuart because “the dangerous act was the striking of a match and applying it to kerosene on the stairs of the hotel but the unlawful purpose was to commit arson by burning down the hotel; the dangerous act and the unlawful purpose were not the same”.[36]  

    [36]   Stuart v The Queen (1974) 134 CLR 426 at 438.

21. In a separate but concurring judgement, Jacobs J explained Hughes in the following terms:[37]

    It was held in that case that when there is no purpose at all beyond the doing of the act which constitutes the offence, then there is no relevant “unlawful purpose” under the section. The facts of the case show how sensibly that principle applies. The act was an assault but, on a view of the facts which was open, there was no purpose beyond the making of the assault… However, many offences are, and probably all can be, of greater complexity in the purpose which may accompany them than an assault, unaccompanied by any purpose other than the making of an assault. Arson may be taken as an example.

    (Emphasis added)

    [37]   Stuart v The Queen (1974) 134 CLR 426 at 448.

22. In my opinion a construction analogous to that identified Jacobs J applies to s 12A of the CLCA. The purpose of the foundational offence alleged on a prosecution relying on s 12A must not be the infliction of harm alone. If there is an additional criminal purpose for the commission of the foundational offence no difficulty is occasioned if the intentional act of violence also constitutes an element of the foundational offence or is an act inextricably connected with it. Nor is it necessary to imply an element such as that suggested by counsel for the accused, that the act of violence be “directed” at the victim. I take that submission to be that the act of violence must either be subjectively intended, or at least objectively calculated, to harm or kill the victim. In my view that construction is inconsistent with the manifest policy purpose of constructive murder liability and should be rejected. The very mischief of acts of violence is that the harm they cause cannot be controlled and may extend beyond the person against whom they are “directed”. Moreover, the limitation suggested by counsel on the operation of s 12A of the CLCA has some similarity with the abortion rule which must have been known to the legislature, or its advisors, but was not adopted by it.

    The accused’s belief

23. I now turn to my assessment of the evidence bearing on the accused’s belief as to whether Malaika was dead or alive when he ignited the fire.

24. I make it clear at the outset that I did not find the testimony of the accused to be credible at all.  I do not accept his evidence for the reasons appearing in paragraphs [150] to [153].

25. The accused gave several incomplete or false accounts of the circumstances of the fire in his unit both on the night and subsequently.  On his own admission he invented the story that he had been assaulted by intruders to secure his own freedom from detention.  I acknowledge that in his testimony he was speaking of escaping liability for punching his wife and not for taking her life by incineration but I can have little confidence that his testimonial account of events is any less motivated by the same desire to avoid punishment.

26. The accused’s account also suffered from a poverty of detail in a number of material respects.  He could say little about how he was approached by his wife, or the nature of the assault or the argument in the unit.

27. The accused’s testimony that he had purchased the smoke detectors found in the passageway cupboard is inherently improbable.  The unit was fitted with smoke detectors.  There was no likelihood that he would purchase his own home for many years.  If he had purchased them, it is unlikely that the detectors would have had batteries inserted.  Officer Fisher’s evidence makes it clear that there were no other smoke detector batteries in the unit.  The smoke detectors in the cupboard had come from the ceiling.  The accused’s patently false evidence on this important question deprives his testimony of any credibility.

28. Finally in my view, the accused’s false denial that he bore Mr Ettiene Murekezi any ill will and his denials and poor recollection of previous aggressive behaviour tell strongly against his credit.

29. For the following reasons I am satisfied that the accused believed that Malaika was probably alive when he started the fire.  First, I am satisfied beyond reasonable doubt that Malaika was unconscious for at least an hour before the accused set alight to the unit.  The approximate time of the ignition of the fire can be fixed relatively easily.  Officer Fisher testified that the fire would have spread and intensified very quickly after ignition because it was fuelled by a constant supply of gas from the broken pipe.  The fire was noticed by residents of unit blocks 443 and 445 by about 3.00 am.  Even though Officer Fisher did not give an approximate time of ignition in his evidence I am satisfied that the fire was ignited no more than 15 minutes before 3.00 am having regard to the very flammable material in the living room.

30. Fixing the time which Malaika fell into her unconscious or semi-conscious state is more difficult, however, I am satisfied beyond reasonable doubt that it was at about the time of the penultimate telephone conversation between the accused and Arilette to which I refer below.  The circumstances upon which I base that conclusion are as follows.

31. I am satisfied beyond reasonable doubt that Malaika was rendered unconscious, at least in part, by violence inflicted by the accused.  The accused has admitted in his own testimony that he punched Malaika with all his strength.  Even though I place no weight on, and reject, the exculpatory parts of his testimony, and even though I doubt that the accused has disclosed the full extent of the violence perpetrated by him, his admission that he assaulted Malaika is consistent with the evidence of pathological changes found on post mortem examination which suggests that Malaika suffered a closed head injury.  Furthermore, the accused has not felt constrained to refrain from violence against his wife when angry in the past.  Finally, it is, moreover, the only possible motive for setting alight to the unit.

32. The evidence of the telephone calls and conversations of the accused in the early hours of New Years Day evinces the existence of a motive to assault his wife at about the time of the penultimate telephone call and leaves little opportunity to do so at any later time.  The penultimate telephone conversation with Arilette commenced at 1:14:10 am.  In all there were four telephone conversations between the accused and Arilette after midnight on New Years Day.  From about 12:13 am until 12:49 am the accused and Malaika spoke to Arilette and Jeremy who resided in Melbourne.  The schedule of phone calls, exhibit P 45, shows that two consecutive telephone calls were made in that period from Jeremy’s and Arilette’s mobile telephones respectively with only a short interval of about two minutes between the calls.  I am satisfied on the evidence of Arilette that Malaika participated in the first and perhaps even both of those telephone conversations.

1. About 20 minutes after the conclusion of those conversations, at 1:13 am, the accused attempted to phone Marie Nahabandi but the call was unanswered.  Marie Nahabandi is a resident of Adelaide who had ordered some seven kilograms of casava from Ettiene Murekezi through Malaika.  The telephone records show that a second telephone call was made to Marie Nahabandi by the accused and answered at 2.14 am.  The statement of Marie Nahabandi shows that she received a call from the accused in which he told her that the casava had arrived.

2. In any event, after the first and unanswered telephone call to Marie Nahabandi, the accused telephoned Arilette and spoke to her in what I have called the penultimate conversation for over 20 minutes commencing at 1:14 am.  Arilette testified that during the penultimate telephone conversation the accused spoke angrily about her father, Ettiene Murekezi.  The accused denied that that was the subject of the conversation.  I unhesitatingly accept the evidence of Arilette.  She was, as I have said, an impressive witness.  The accused again spoke to Arilette for about four and a half minutes in the final telephone call which was made at about 1:30 am.  Arilette testified that in the last two conversations she did not speak to Malaika and that the accused told her that her sister was asleep.  I also accept that part of Arilette’s evidence. 

3. I find that by the time that the accused spoke to Arilette in the penultimate telephone conversation his underlying anger with Ettiene Murekezi had again boiled over.  I find also that Malaika would not have gone to bed while her sister was still on the telephone.  Having regard to Arilette’s evidence about their relationship and the frequent telephone contact between them, it is unthinkable that she would have taken herself off to bed, even if she was very intoxicated, before the second of the telephone calls was terminated.  Within less than half an hour of the end of the second call the accused was expressing his anger towards Ettiene Murekezi in the penultimate of his four telephone conversations with Arilette.  It is most likely that he vented his anger in that telephone conversation because he had just argued with Malaika.  I consider it most improbable that his anger arose from his solitary ruminations about his father-in-law after Malaika had gone to sleep.  I reject the accused’s testimony that the argument with Malaika was over beer.  The telephone calls to Marie Nahabandi about casava which had been procured from Ettiene Murekezi may, in that context, have been more than coincidental. 

4. The history of the accused’s long standing resentment of Ettiene Murekezi and the association between that resentment and threatened and actual violence strongly suggests that the assault on Malaika was motivated by those factors and that it was committed before the penultimate telephone conversation with Arilette.  The reason for Malaika not participating in the penultimate telephone conversation was that she had been left unconscious by violence inflicted by the accused. 

5. The penultimate telephone conversation continued for over 21 minutes.  The final telephone conversation with Arilette was made just several minutes later at 1:38:10 am and continued for just over four minutes.  The phone records show that after the telephone conversation with Arilette the accused attempted to call an acquaintance, Amisi Jumma, and Arilette’s sister, Desiree Murekezi, in quick succession between 1:43 am and 1:55 am.  At 1:56 am the accused spoke for just over a minute with Deniza Nyandwi.  According to the statement of Deniza Nyandwi, which was received by consent, in that conversation the accused simply wished her a happy New Year.  I am satisfied that the assault on Malaika did not occur in the period of time between the last conversation with Arilette and the conversation with Deniza Nyandwi.  There was hardly sufficient time between the telephone calls for an argument and assault to have ensued.  Even allowing a very short period of time for the assault to be committed it is improbable that the accused would so quickly after the assault have turned his mind to contacting his acquaintances by telephone whether for the ostensible reason of wishing them a happy New Year or some other reason connected with the assault on Malaika.

6. After the call to Deniza Nyandwi the accused made a telephone call for the purpose of adding credit to his mobile telephone account which was unsuccessful.  He then made further unsuccessful attempts to call his acquaintance Amisi Jumma at 2:00 am and 2:10 am before attempting to call Arilette again at 2:11 am.  For similar reasons to those given in the preceding paragraph it is unlikely that Malaika was assaulted in the time between the two calls to Amisi Jumma.

7. The accused, as I earlier observed, made a second telephone call to Marie Nahabandi at 2:14 am.  There was insufficient time between his previous call and 2.11 am and that call for the assault on Malaika to have occurred.  The accused spoke to Marie Nahabandi for some six minutes and 40 seconds in a conversation in which he told her that the casava had arrived.  He made another unsuccessful attempt to call to Marie Nahabandi again at 2:24 am.  He then called the emergency “000” number at 2:41 am to call for help on the false story that he was being assaulted by intruders.

8. Finally, I am satisfied that the evidence establishes not only that it is improbable, but also that it is not at all reasonably possible, that the assault on Malaika occurred after 2:00 am because of the time that it must have taken the accused to decide upon and execute his plan to burn the unit down and set a false trail by making a false report to police, before calling the police at 2:41 am.  In this respect I observe that all of the electrical appliances in the unit had been turned off and or unplugged on or about the time the fire was started.  It is not now possible to determine why the accused took that action; the accused simply denied doing so.  What is important for present purposes is that it shows that there was enough time after Malaika was rendered unconscious for the accused to think about and execute a decision to turn the appliances off.  The decision shows a capacity, and time, to think through a plan even though the reasoning for it is not now apparent.  Similarly, the accused had time to think about and then to actually remove the smoke alarms and place them in the cupboard.  His plan in that respect was not perfect because he left the batteries in the smoke detectors when he placed them in the passageway cupboard.  Perhaps he thought that by placing the alarms in a cupboard there would be a delay before they were activated.  Perhaps he thought, for some reason, that the alarms would not activate if taken off the ceiling and if the power was off.  Whatever his precise thinking, the only explanation for the removal of the fire alarms is that the accused hoped that they would delay the discovery of the fire he had decided to start until the unit was well and truly ablaze.  Similarly, the removal of the heater shows that some thought was given to how the fire could be maximised and that the accused spent some time and effort in removing it from the wall in order to ensure that there was a quick and all consuming conflagration.  The accused also required time to construct a false story about intruders and determined to call the emergency “000” number to set the foundation for it in the hope that it would exculpate him. 

9. It is in the nature of planning of this sort that other alternative possible courses of actions would have been considered and rejected.  All this takes time.  There was insufficient time to assault Malaika and attend to these matters and make the other telephone calls to which I have referred between 2:00 am and the telephone call to “000” at 2:41 am.  This evidence together with the apparent motive to assault Malaika connected with the anger against her father which was expressed in the penultimate conversation with Arilette satisfies me beyond reasonable doubt that Malaika was unconscious well before 2:00 am.  It follows that the accused had much time, in which he was capable of working out an admittedly poor plan, but a plan nonetheless, before he lit the fire.  I am satisfied beyond reasonable doubt that he also had time, and a capacity, to realise that Malaika was still breathing.

10. The evidence which satisfies me beyond reasonable doubt that the accused did in fact notice that Malaika was breathing is as follows.  The evidence of Professor Grantham confirms that an unconscious person continues to breathe, albeit more shallowly than they would if conscious.  According to Professor Grantham, depending on the degree of unconsciousness, the breathing is similar to the breathing of a sleeping person.  It is possible, as Professor Grantham testified, that an untrained lay person might nonetheless fail to notice that an unconscious person is breathing.  However in this case the question is whether the accused noticed the breathing, not of a stranger, but of his wife in a situation where there was no continuing emergency which might have distracted the accused from properly observing his wife.  Moreover, the accused’s wife was, on the evidence of Officer Fisher, and on the admission of the accused, naked and in a prone position on the floor.  Those circumstances combined to optimise the opportunity to notice signs of breathing.  In my view the accused could not have failed to notice his wife breathing when he moved her from where she fell to her final resting position.

11. I reject the accused’s evidence in chief that he made only a perfunctory attempt to check for the signs of life.  The accused testified that he tugged Malaika’s arm three times and concluded from the lack of any response that she was dead.  Even making every allowance for the accused’s limited formal education I am satisfied beyond reasonable doubt that he did not, on the basis of that rudimentary examination conclude that his wife was dead.  In my view that inherently improbable account was given because of the accused’s awareness that anything more than a superficial examination would have revealed that his wife was still alive.  I am satisfied beyond reasonable doubt that the truth is, as he eventually admitted in cross examination, that he took other steps to determine whether his wife was alive.  Whether or not he felt for a heart beat or cradled his wife in the way he eventually testified during the course of cross examination, I am satisfied that the accused spent some considerable time close to his wife.  It is a most natural and instinctive thing to do.  After eight years of married life the accused could not have failed to notice that Malaika was breathing when he did so.  I reject the possibility that his level of intoxication or panic caused him to fail to notice Malaika’s breathing.  The planning and steps he took to avoid apprehension for the assault on Malaika shows that the accused was more than than capable of detecting signs of life.

12. In my view, even an adult with the most basic understanding of human life and a limited capacity for reasoning would still understand that a state of apparent unconsciousness is not necessarily indicative of death.  The accused’s account of his life and the testimony of others as to his social and personal functioning satisfy me that he is at least of average intelligence.  I accept that his lack of formal education and his employment as an unskilled farm labourer have left him with little capacity for abstract reasoning.  However, the relationship between respiratory function and life is innately understood by people.  The notion of “the breath of life” is ancient and imbues much human mythology.  I doubt that the accused had much if any understanding of the physiology of breathing but I am satisfied beyond reasonable doubt that he understood that Malaika Murekezi’s apparent unconsciousness was not a conclusive indicator of death and that if she was breathing she was alive.

13. I find that the accused, like most people, appreciated that temporary unconsciousness may result from being struck in the course of a fight.

14. The accused did not give evidence of a beating or other conduct which would in the ordinary course be thought sufficient to cause death.  Even on his testimonial account that he punched Malaika as hard as he could and that she hit her head on the wall there was little reason for the accused to rush to the conclusion that she was unresponsive because she was dead.

15. The very decision to burn the unit down and the extent to which the accused went to ensure that the unit was totally destroyed by fire, in my view, also supports my conclusion that the accused’s purpose in starting the fire was to ensure that his wife did not survive.  It is also the most likely reason the accused did not stay on the telephone long enough to tell emergency services where he was, and the reason he answered “just a minute” when asked for his address.  The most likely reason that he did not call the “000” number again to give his address is that he had already decided to light the fire and had planned to call them back, if at all, only after the fire had started.  I do not accept that the accused’s command of English was insufficient to give the police more details of the location of his unit. 

16. I reject as a possibility that the accused’s act in setting fire to the unit was the irrational act of a moderately drunk and panicked man.

17. In particular, the accused’s determination to ensure that the unit was totally consumed by fire suggests that his real purpose was to ensure that his wife did not survive it.

18. The accused himself admitted that he remained on the landing outside his unit for some period of time after leaving the unit alight with his son in his arms.  The accused testified that he had no explanation for simply remaining on the landing.  I find that the accused remained there for so long as he thought he safely could before descending the stairs to lend credence to his later claim that he did not have enough time to save both his wife and his son from the blaze.  In my view the scheme devised by the accused, even though ultimately always likely to be undone by the results of a competent fire investigation, had a degree of complexity and would have required considerable thought on his part.  I do not accept that his actions were the random product of his panic and intoxication. 

19. The sequence of events from midnight through to 3:00 am satisfies me beyond reasonable doubt that the accused knocked his wife unconscious in the course of an argument at about the time of the penultimate conversation with Arilette.  I am satisfied beyond reasonable doubt that fearing the consequences of his criminal conduct the accused decided to burn down the unit in the hope that her death might appear to be the result of a fire ignited by the intruders of whom he had falsely complained to the police.  When he did so the accused had noticed that Malaika was still breathing and did not believe her to be dead.  Such was his continuing anger and fear of apprehension that he was prepared to burn the unit down even though he realised that she was alive.

20. The elements of common law murder have been established beyond reasonable doubt. The arson of a unit in a block of units by igniting a free flowing gas pipe carries with it an obvious rise of death or serious injury to the residents of the units. The accused was aware of the circumstances which created that risk. His purpose was to escape apprehension for the assault he had committed against Malaika. It follows that the elements of s 12A of the CLCA have also been established.

21. I return a verdict of guilty.